When the dust settles after an arrest for assault family violence, almost invariably loved ones come to me unified looking for a path forward. Having the support of the alleged victim can be a vital asset to the accused’s defense. The most common questions posed to me relate to if and what the alleged victim do to drop the charges. An arrest for family violence is very unsettling but it is important to understand what constitutes assault family violence and just how serious is a domestic violence charge. In this article, we are going to cover the definition of Assault Family Violence, the seriousness of a domestic violence offense, whether or not you can fight an assault charge, and if an alleged victim can “drop assault charges” in Texas.
Assault family violence is when an individual is accused of causing bodily injury to a spouse, family member, household member or someone the defendant is in a dating relationship. Assault FV is a Class A misdemeanor punishable up to 1 year in jail and up to a $4000 fine. In addition to jail time and fines, a FV conviction also comes with a host of other penalties including prohibition of owning firearms, felony enhancement for future FV arrests, etc. The punishment range itself makes this charge a serious one and requires the attention of an experienced lawyer well-versed in matters of domestic and family violence law.
The seriousness of a family violence charge is what usually prompts my clients and their families to ask, “how do we go about getting a case involving domestic violence dismissed?” One important tool that a lawyer uses in fighting a domestic violence charge is an affidavit of non-prosecution. This affidavit is signed by the alleged victim in the family violence charge. The affidavit contains usually a simple statement from the alleged victim requesting that the charge against the defendant be dropped or dismissed. It is important to note that this non-prosecution affidavit should not include any details or statements relating to the guilt or innocence of the defendant; it is a simple declarative statement from the alleged victim asking that the charges be dropped against the defendant.
Can signing an affidavit of non-prosecution get the alleged victim in trouble with the State? This is a question often asked of me by the alleged victim who is seeking to have the charges dropped. This fear is a common misunderstanding of how the criminal justice system works. Many people are under the misconception that we must always cooperate with the State and its prosecutors. This notion is simply false. An alleged victim has the right to participate or not participate in the prosecution of the defendant. That decision lies solely with the alleged victim and is certainly not ever the decision of the State, the prosecutor, or the defendant. An alleged victim without fear of retribution may freely express, in whatever form, his or her opinion on how a defendant should be prosecuted.
Remember that a proper affidavit of non-prosecution does not contain any details or represent any retraction of the allegations of the incident. That is not its function. Many alleged victims have expressed to me concern that signing an affidavit is somehow the same as recanting what happened or suggesting that they originally made up the charges against the defendant. That by signing it, this will somehow get them in trouble with the law for being untruthful at the time of the incident. However, it is important to understand that the affidavit does not try to answer what happened but merely to express the wish of the alleged victim to have it dismissed.
Does an affidavit of non-prosecution work? The answer is complicated but the easiest response is sometimes. It’s definitely not a silver bullet. Some defendants have the impression that if the alleged victim executes an affidavit of non-prosecution the case will automatically be dropped. This is just not the case. The affidavit can certainly be an important step in getting the case dismissed but a prosecutor may also disregard it as well if other factors in the prosecutor’s mind outweigh the wish of the alleged victim to drop it. That is, the affidavit becomes one of many considerations the prosecutor will weigh in determining whether the State will pursue charges.
One significant consideration in determining the effectiveness of the affidavit is the criminal history of the defendant. If a defendant has no history, a prosecutor will be more likely to consider the wishes of the alleged victim to have the assault charges dropped. If a defendant has some criminal history, this doesn’t necessarily invalidate an affidavit of non-prosecution. The prosecutor will particularly look at the defendant’s family violence history. Has the defendant been arrested for domestic assault in the past? This one factor is especially important to the prosecutor in recognizing the affidavit.
In addition to any defendant’s arrest on family violence, a prosecutor will also consider any police reports of domestic unrest. Any time the police are called out to a domestic disturbance, even if no arrest is made, a report is written up to document the event. So, a defendant who may have no formal arrest for family violence may nonetheless be viewed with great suspicion by the prosecutor just by virtue of how often the police are called out to their home.
Ultimately, whether an affidavit of non-prosecution and an alleged victim’s lack of participation is effective comes down to one consideration: the strength of the prosecutor’s case. Can they “make the case” with the evidence they already have including any physical evidence and statements already made by the alleged victim? An affidavit of non-prosecution usually signals to the prosecutor that the alleged victim is not going to be cooperative with the State in its prosecution of the defendant. This perceived lack of cooperation from the alleged victim forces the prosecutor to make the hard calculations regarding the likelihood of securing a conviction without the alleged victim’s help. Should the prosecutor conclude that it will be too difficult to continue, then the affidavit of non-prosecution can become the catalyst for a dismissal of the case.
If you are looking to obtain or have any other questions regarding an affidavit of non-prosecution, please don’t hesitate to contact us at Chambers & Associates. Hiring a skilled defense attorney to handle a family violence case is extremely important. David Chambers has over 25 years of obtaining dismissals for our clients. We work to ensure your legal rights are protected and offer the best legal defense possible. You won’t just be working with Mr. Chambers; you will have an entire team dedicated to your case. Contact us today for a free consultation at (512) 474-1404.