A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors. For some clients, this is their first interaction with law enforcement and their concerns include: jail time, a permanent mark on their criminal history , and the possibility of trial. All of these concerns are very real when facing Family Violence Battery charges. This is especially true when charged with Family Violence Battery in Cobb County. This jurisdiction has specifically allocated money and resources in aggressively prosecuting domestic violence charges. This article aims to explain the nature of the offense, punishments, and how these cases are handled within Cobb County.
Georgia Criminal Code § 16-5-23.1 defines domestic violence (named “battery – family violence”) as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”
Therefore, in order to be charged with Family Violence Battery, the alleged victim must be within a certain relationship of the defendant:
- A spouse
- Persons who are parents of the same child
- Foster Children
- Other persons living in the same household (roommates)
A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1,000 fine. A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison. O.C.G.A. § 16-5-23.1
While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences unknown to most people. For example, because Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence,” a Georgia citizen who is convicted of Family Violence Battery is prohibited from possessing a firearm under Federal Law.
Furthermore, while the maximum penalty includes 12 months in custody and a $1,000 fine, many judges throughout the State will also require individuals convicted of Family Violence Battery to serve time on probation (in lieu of jail time), but with the conditions of completing a domestic violence program. These programs go by several different names (usually Domestic Violence Intervention Program – DVIP), but they generally include 24 weeks of classes, counseling, and program fees that are not included in the fine ordered by the judge. In addition, judges can add community service, counseling requirements, fines, and alcohol and drug evaluations. It is important to know that your attorney can negotiate all of these things.
How it Works in Cobb
The first step after arrest is getting a bond. If charged with misdemeanor Family Violence Battery, the law provides you shall be given a bond (in all misdemeanor cases). But, in addition to having to pay bail money to bond out, the judge will also typically impose a No Contact provision as a condition of your pre-trial release. For example, in a case where a husband is accused of battering his wife, and the couple have minor children who live with them, a judge will usually order the defendant to have No Contact with the wife (alleged victim), the children, and be prevented from returning to the shared home. This No Contact provision places a great burden and strain on the accused as a violation of this bond condition (any form of contact, direct or indirect) can land the accused person in custody until the case is resolved. Therefore, the accused has to find alternative living arrangements and be estranged from their family.
As a result, our office routinely files a Motion to Modify Bond Conditions to change the No Contact provision to No Violent or Harassing Contact. This will allow the accused to return home and have contact with the alleged victim and anyone else protected under the bond order; allowing the accused to return to some semblance of a normal lifestyle.
After arrest, a case file is created with the Cobb County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Cobb County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case. An experienced attorney should periodically check to see whether the case has been accused prior to arraignment.
It is possible to resolve a Family Violence Battery charge prior to the filing of an accusation. Attorneys should contact the Solicitor General’s Office to see if they are eligible to be admitted into the Cobb County Domestic Violence Pre-Trial Intervention Program. If the accused successfully completes the DVPTI program, their charges will be dismissed with their records restricted.
Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” If accused and not eligible for DVPTI, the accused must begin preparing their case for a possible trial, subject to reaching a plea negotiation with the prosecutor. This includes investigating the case and gathering evidence. In our experience, Cobb County prosecutors are largely unwilling to outright dismiss Family Violence Battery charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to Family Violence Battery or proceed to trial.
Cobb County State Court prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within the accusation. Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea. Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney. At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.
Being charged with Family Violence Battery can be a stressful event in anyone’s life. At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case. We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy. If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.