Domestic Violence Charges in Oakland California

Being arrested for domestic abuse can be an emotional and terrifying experience. If you are arrested for assault there are several things that you have to deal with immediately. The first is posting bail so you can be released. Sometimes a temporary restraining order or emergency protective order has been issued. These orders prohibit you from contact with your accuser. Which means, if you live together you can’t go home. Now you’re in a situation where you’ve been arrested, gone to jail and can’t go home. If you have been arrested for domestic assault or battery, the best thing you can do for yourself is to hire an experienced criminal defense attorney to help you fight the charges.


Domestic Abuse Charges

Penal Code Section 243(e)(1)states that you could be convicted of misdemeanor domestic battery if the district attorney proves:


  1. You committed battery on your accuser AND;
  2. At the time of the battery the accuser was your:
  • Spouse or former Spouse
  • Cohabitant
  • Mother or Father of your child
  • Your fiancé or fiancée or someone you currently have or previously had a dating or engagement relationship with.


Battery means that you used force or violence against your accuser. They do not have to be injured. Even the slightest touch can be enough to commit a battery if you do it in a rude or angry way. The touching can be done indirectly by causing an object, or even someone else, to touch the other person.The touching does not have to cause pain or injury of any kind.


  • Jack and Jill are dating. They go up the hill at sunset for a romantic picnic. Jack steps on the picnic basket while trying to take a selfie. Jill gets mad at Jack and pushes him down the hill. Jack is not injured but Jill is arrested and charged with domestic battery.
  • Alex and Aaron are domestic partners. One night they argue over texts that Aaron receives from an ex-boyfriend. Alex yanks the phone out of Aaron’s hand and leaves the house with it. Alex is arrested and charged with domestic abuse.
  • Jane and John are dating. John stays the night and brings Jane breakfast in bed. They start arguing and John throws a cup of orange juice at Jane hitting her in the shoulder. John is arrested and charged with domestic battery


To be convicted of assault under Penal Code Section 273.5 the district attorney must prove:

  1. That you willfully and unlawfully inflicted a physical injury on your:
  • Spouse or former spouse
  • Cohabitant or former Cohabitant
  • Mother or Father of your child
  • Someone with whom you currently have, or previously had, an engagement or dating relationship with AND;
  1. The injury inflicted by the defendant resulted in a traumatic condition.


In order for the assault to be willful, it means you inflicted harm on the accuser willingly or on purpose. A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. Physical force is the use of power, violence, or pressure directed against a person involving a physical act.


  • Jack and Jill are in a dating relationship. They go up the hill at sunset for a romantic picnic. Jack steps on the picnic basket while trying to take a selfie. Jill gets mad at Jack and intentionally pushes him down the hill. Jack breaks his arm in the fall. Jill is arrested and charged with felony domestic abuse.
  • Alex and Aaron are domestic partners. One night they argue over texts that Aaron receives from an ex-boyfriend. Alex yanks the phone out of Aaron’s hand and hits him on the arm with it, bruising him. Alexander is arrested and charged with misdemeanor domestic abuse.
  • Jack and Diane are engaged to be married and are making wedding plans. Jack doesn’t like Diane’s cousin and doesn’t want him attending the wedding. They start fighting and Jack starts choking Diane.


Penal Code 273.5 is commonly referred to as a “wobbler.”  A wobbler is a crime that can be a felony or a misdemeanor. It is very common to be arrested by the police for felony domestic abuse but charged by the district attorney for misdemeanor domestic abuse. What you are charged with depends on the severity of injury and the specific facts of the case.


The Consequences of Domestic Abuse Charges

You will have a criminal record. If you are convicted of misdemeanor domestic abuse under Penal Code Sections243(e)(1) or 273.5 you could face up to one year in jail in addition to informal or formal probation.If you are convicted of felony domestic abuse under Penal Code Section 273.5 you could face up to one year in jail and up to four years in prison and formal probation.


You will also be required to take domestic abuse classes, pay fines and fees and pay “restitution” to your accuser. Restitution means that if your accuser had to pay for things that were related to the assault, you must cover those costs.


  • When Jack fell down the hill and broke his arm, he had a lot of medical bills. Jill had to pay for the medical bills because the bills were a result of her assault on Jack.


Additionally, under recently passed California law, you could lose the right to possess a gun for ten years if you are convicted of Penal Code Section 243(e)(1). If you are convicted of Penal Code Section 273.5 under California law,you are banned from owning a gun for life. Under federal law if you are convicted of any domestic abuse, misdemeanor or felony,you cannot own a firearm. If you are not a citizen of the United States a conviction for a violation of domestic abuse could result in severe immigration consequences such as deportation. You could also lose custody of your children if you are convicted of domestic abuse.


Defenses to Domestic Abuse Charges

If you have been charged with domestic abuse you may have a defense. Some examples are below.


Sometimes the accuser is the abuser:

  • Jack and Jill live together, Jack is emotionally, verbally, and physically abusive to Jill. One day Jack pushes Jill down the hill. She breaks her collarbone and loses consciousness. When the police arrive, Jack tells them that she committed assault and he pushed her away during the assault. Because she is unconscious Jill can’t tell her side of the story. She wakes up in the hospital under arrest. Jill’s defense attorney proves that she is the actually the victim and the charges are dismissed.


You did not intend to hurt your accuser:

  • Aaron and Alex are arguing. Alex decides to leave the house to cool down. He walks past Aaron but trips on the carpet and starts to fall. While Alex is falling, he starts flailing his arms to try to catch his balance and accidentally hits Aaron in the face giving him a black eye. Aaron calls the police and Alex is arrested for assault. His defense attorney gets the charges dismissed because he did not intend to hit Aaron.


You were defending yourself or others:

  • Jack and Diane are engaged to be married and are making wedding plans. Jack doesn’t like Diane’s cousin and doesn’t want him attending the wedding. They start fighting and Jack starts choking Diane. Fearing for her life, Diane punches Jack to escape. Jack has a bloody nose and calls the police. Diane is arrested but her defense attorney gets the charges dismissed because they prove Diane was acting in self-defense.


The assault or battery never happened:

  • Lewis and Alice are going through a nasty divorce. Alice decides she wants full custody of the children to punish Lewis. She calls the police and falsely accuses Lewis of hitting her so that she can get full custody of their children. The police arrest Lewis but his defense attorney proves that Alice made the story up.


Common Domestic Abuse Restraining Orders

Arrests for domestic abuse are often accompanied by a restraining order requiring the accused to have no contact with their accuser. There are two types of restraining orders that a judge can issue, a Temporary Restraining Order and an Emergency Protective Order.


A Temporary Restraining Order (TRO) is a civil court order that has a short time limit. The Temporary Restraining Order tells you what you can and cannot do until the court can schedule a longer hearing. At the longer hearing the judge will hear evidence and decide whether to issue a more permanent restraining order.


An Emergency Protective Order (EPO) is requested by law enforcement. An Emergency Protective Order is often requested by the arresting officer when they think there is a danger of domestic violence, child abuse, abduction or elder abuse.The Emergency Protective Order provides protection to the accuser while they are filing for a Domestic Violence Restraining Order (DVRO) in court. Domestic Violence Restraining Orders usually last for three years.


If a Temporary Restraining Order or an Emergency Protective Order has been issued against you, there are certain things you will no longer be able to do:


  • You will not be able to go to certain places or things.
  • You might have to move out of your home.
  • It may affect your ability to see your children.
  • You will generally not be able to own a gun.
  • You will have to turn in, sell or store any guns you have now, and you will not be able to buy a gun while the restraining order is in effect.
  • It may affect your immigration status if you are trying to get a green card or a visa.


If you violate the restraining order you could be charged with a misdemeanor and you may go to jail, pay a fine, or both.


Any assault or battery charge that ends up being a domestic violence charge can have severe and lasting effects on your life and livelihood. You will have a criminal record that includes violence. Employers generally don’t like that. Your children could be taken away from you, you could lose your job, you could even be deported. If you are accused of domestic abuse the best thing to do is hire an experienced criminal defense attorney to give you your best chance at fighting the charges.




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Difference Between PC851.8 Motion for Factual Innocence and PC851.91 Motion to Seal Arrest Record

Many people don’t realize that getting arrested, even if you are never convicted, can have a drastic effect on the rest of your life. Having an arrest record creates a stigma, rightly or wrongly, that can cause you to miss out on opportunities such as schooling, renting or buying a home, and getting professional certifications and designations. If you have been arrested and are finding it difficult to do certain things because of your record, then you do have some options available to either remove the record or have it hidden from the public.

One option is to apply for a motion of factual innocence under PC 851.8, or to have your record sealed under PC 851.91. Both of these options carry different requirements to be eligible – and the veteran criminal law attorneys at Lamano Law Office can help determine which, if any, applies to your situation.


PC 851.8 – Motion for Factual Innocence

A factual innocence motion will show that you are deemed innocent of the charges that had been levied against you. You can only apply for this if no charges were filed against you after your arrest, the prosecution did not go through with attempting to convict you after charges were filed, or a jury acquitted you of the charges. In any one of those situations, you are viewed by the law as being innocent and can apply to have your record reflect that.

If the motion is successful, then the record of your arrest will be sealed for three years by the police department that arrested you in the first place. It will not be visible to the public, including potential educational institutions, employers, or landlords. After three years have lapsed, they are required to destroy the record completely so that there is no longer any trace of your arrest.


PC 851.91 – The C.A.R.E. Act

The Consumer Arrest Record Equity (C.A.R.E.) Act was enacted in 2018 as another avenue to have an arrest record expunged. Under this act, you can apply for expungement under the same eligibility requirements as a motion for factual innocence, but also includes a conviction that was reversed on appeal. There are some restrictions to apply under the C.A.R.E. act, however. They include that you were not arrested for murder or another crime for which there is no statute of limitations and you did not try to impede the efforts of prosecutors through identity fraud or other illegal means.

If your petition is granted by the court, then a notice is sent to certain parties to start the process of sealing your record. This includes the Department of Justice, the prosecution, and the arresting police department. The court must notify you that your record is sealed, and all of those entities must make sure that it is not accessible by anyone in the public. If anyone from any of these agencies disseminates information from your record, then they will be subject to civil penalties.


What is the Difference Between the C.A.R.E Act and a Motion for Factual Innocence?

On the surface, these two methods for having your arrest record hidden from public view seem very similar, but there are some key differences between them that are important to understand. For instance, with a factual innocence motion, there is no requirement to wait until the statute of limitations has expired. Possibly the biggest difference between the two is that if with the C.A.R.E. Act, you can still get your record sealed even if you were convicted. However, you must successfully appeal that conviction to be eligible.

Making a motion for factual innocence is a much more involved process than applying under the C.A.R.E Act. For a successful factual innocence motion, the law enforcement agency that made the arrest must respond within 60 days. If they do not respond, then you can request that the court seal and destroy your record, and the process is complete. However, the law enforcement agency has the right to object to your motion. If they do, then it is up to you to demonstrate that you should not have been arrested for the crime. The bar is very low for law enforcement to contest a motion for factual innocence since they only have to prove that they had reason to arrest you. That is a much lower threshold to meet than needing to show cause to charge you. With the C.A.R.E. Act, your petition can only be challenged based on your eligibility. That said, if your arrest was for a domestic violence charge, child or elder abuse, and you have a prior history of similar arrests, then you must make a formal declaration explaining why sealing your records are in the interests of justice.


Hire the Best Criminal Defense Lawyers Near You

If you apply to have your arrest record sealed then you want to make sure that you have the best representation possible. You need a knowledgeable and experienced criminal defense attorney on your side who will understand how to make the best argument on your behalf, both in your initial application and if it is contested.

Your arrest record does not have to be a black mark against you for the rest of your life. Contact the Bay Area criminal defense lawyers at Lamano Law Office at 510-842-0750 to determine whether you are eligible to have your record sealed or destroyed under PC 851.8 or PC 851.91.

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