QUESTION
If my husband and I where both arrested for battery, what can we do so we both get away without any charges?
Asked on May 30th, 2013 on Criminal Law - New Mexico
More details to this question:
My husband was yelling and calling me bad things etc. and it just got out of hand with both of us calling each names and in each others face. We have been separated for 3 1/2 years and 3 1/2 years ago, he was arrested and charged with spousal abuse, battery, taking a weapon from the officer. He did 4 months' time along with 1 year probation and classes. He also claims that he had his record expunged. He had a felony for the officer and that's it. My question is, when he was verbally abusing me yes I went nuts because all the flashbacks of him choking and threatening to kill me last time came back and he was in my face and I was scared so I slapped him in the jaw 3 x and then he hit me hard 4 times in the head as he continued calling me names. Long story short #1 for him can they use the other case with him against him in this case? and I found he also had another older one can that also be used? #2 If we both don't want to press charges, will the DA do it anyway? #3 I feel this might be bad for him. As for myself what might my charge be? I am 50 years old never ever been in trouble or in jail so what is most likely to happen for me? Also I was not read my rights when they arrested me nor was he and they also took my purse out of my car and opened the truck and searched my purse and the trunk of my car very well but nothing was found. They didn't ask me. I don't even know why they searched the truck, is that legal? How can we both get out with no charges? I don't want him in prison or myself to have any charged that sticks. No witness, just us outside, him on the yard and I was in my car on the phone to 911 and I told them all of this but he told the police he never hit me which he lied but I just want to get a divorce go on with my life and have him do the same? What can be done? Also yes, I had hard knots on my head but due to the hair you could see anything and he also had no marks on him. Thank you please get back to me A.S.A.P.
7 ANSWERS
John J. Carney
Like most women who marry the wrong man, you made it worse by putting up with him and staying in the marriage. Then you did not just walk away or call the police when he got abusive again. You hit him first and escalated the matter. You do not decide who will be prosecuted, the prosecutor does. You will not be in trouble, he will as he took the officer's gun and has priors. You must act like an adult and not get into fights with people or you will get arrested. Sophisticated people do not scream and shout at each other, immature people do.
Answered on Jun 03rd, 2013 at 12:05 PM
You need to each hire a separate lawyer.
Answered on Jun 03rd, 2013 at 12:05 PM
Michael J. Breczinski
Well neither of you would have to testify against the other since you would be incriminating yourselves. The search maybe illegal. They do not have to read you Miranda if they are not going to question you after the arrest about the matter. (Or any other thing where you are the focus of their investigation.) Get a lawyer.
Answered on Jun 03rd, 2013 at 12:04 PM
Bankruptcy Attorney serving Federal Way, WA
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Freeborn Law Offices P.S.
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First of all, I have to wonder, with the past history between the two of you, why you were with him, especially if you have been separated for 3 1/2 years. At your age, there are no minor children that would necessitate you being in contact with each other. To answer your question, neither you nor your husband have any control over whether this case will be dismissed, even if neither of you wish to press charges. It is the prosecutor who brings the charge in a criminal case. If the prosecutor is moving forward with this case, he/she obviously believes that there is sufficient evidence to support the charge, even if neither you or your husband testify. There is nothing either of you can do to change this. With a prior history of violence between you, this may be adding fuel to the fire and causing the prosecutor to be particularly aggressive. As far as your husband's past criminal history, no, that information cannot be used to convict him of this crime. It is probably inadmissible. However, if convicted, absolutely, the judge can consider his prior criminal history in determining what kind of sentence to impose. Based upon his criminal history, there is little doubt that jail time will be substantial. As for you, if you are convicted, you could also be looking at jail time, even with no prior record. Without knowing the facts of your case, I have no way of advising you or your husband how to proceed. Only an attorney can do that and an attorney cannot represent both of you because your interests are in conflict with each other. One thing I can say is that there is absolutely no way the two of you should be anywhere near each other because I have little doubt that, if you continue to be around each other, things will only get worse.
Answered on May 31st, 2013 at 12:42 PM
First, they cannot use the other convictions against him to prove gilt in this case. However, they can use it to enhance his sentence. Second, in most domestic violence cases the district Attorney will press charges even if the parties do not want to. Third, for you with this being your first time, you should receive probation, a fine, and anger management classes. What you told the police and the 911 operator can be used against you and him. In an incident such as this, the police have a right to search your purse for weapons. If they are going to impound your car, they have a right to do an inventory search to make sure you do not claim something was stolen. Your statement of rights (also referred to as Miranda rights) is a statement of your constitutional rights that police in the United States are required to give to suspects in police custody or in a custodial interrogation before they are questioned about a possible criminal incident. The Supreme Court of the United States ruled that an elicited incriminating statement made by a suspect is not admissible evidence in the prosecutor?s case in chef unless the suspect was informed of the right not to make self-incriminatory statements and the right to legal, and makes a knowing, intelligent, and voluntary waiver of those rights. The Miranda warning is not required for a person to be detained. It is a safeguard against self-incrimination. If law enforcement officials do not read a person his rights they may still interrogate that person and act upon the knowledge gained, but may not use that person's statements or the evidence obtained from that knowledge to incriminate him or her in a criminal trial. However, if the suspect makes testifies to facts different from in his statements before his was read his rights, the statements can be used to show he may be lying.
Answered on May 31st, 2013 at 11:06 AM
Criminal Defense Attorney serving Chicago, IL
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This is a complicated situation. You both need to have a lawyer.
Answered on May 31st, 2013 at 11:05 AM
Family Law Attorney serving Las Cruces, NM
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The Law Offices of Michael E. Cain, L.L.C.
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First of all, the DA will likely not consider whether or not either of you want to press charges. If there is sufficient evidence without either of your testimony, they can, and usually do, proceed with the prosecution. If the police saw marks on you and depending on what you said to them, they may be able to proceed. If your husband has prior DV convictions, they can be used to enhance his sentence. You sound as if you two should be divorced from your question.
Answered on May 31st, 2013 at 11:04 AM