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Domestic Violence Victims Refusing to Testify in Orange County

Involved in a Domestic Violence Situation?

Many victims in domestic violence cases to want to drop charges and have the case dismissed. But, it's a myth that a victim can just make the case go away. In fact, most domestic violence cases are prosecuted without the victim's cooperation. Even in domestic violence cases where the victim refuses to testify, the prosecution can still get a conviction without the victim's testimony.

If you or a loved one has been charged with domestic violence, you need to contact an experienced OC domestic violence attorney. Law Office of Michael L. Guisti has helped many clients through these difficult times. We can provide the diligent legal defense you need to protect your future and reputation. Contact us at (714) 530-9690 or toll-free at (888) 478-8999.

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What Is Domestic Violence?

In California, domestic violence legally consists of physically harming or injuring another person, stalking, threatening, or damaging another person's property. The most common domestic violence charge is related to California Penal Code Section 273.5. This law refers to domestic violence situations involving an injury to a person who is or used to be an intimate partner of the accused person. Charges under Penal Code Section 273.5 are considered felonies in California, but other domestic violence charges, such as child abuse, domestic battery, and elderly abuse, are considered “wobblers,” which means you can be charged with a misdemeanor or a felony.

If convicted of domestic violence, an Orange County court can punish you with:

  • Up to four years in a California state prison; and/or
  • A fine of up to $10,000.

A domestic violence charge in California is very serious. Along with potential jail time, people accused of domestic violence also face having to complete a one-year batterer's treatment program and might have a restraining order put against them by the victim.

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When Are Domestic Violence Defendants Arrested?

Following a call to 911 or an accusation of domestic violence, the alleged victim may want the charges dropped due to a misunderstanding, an accusation made out of anger, or other reasons. Unfortunately, California law makes that kind of impossible. California Penal Code section 836(d) states that when a police officer is called to a domestic violence situation:

"A police officer may arrest the suspect without a warrant where both of the following circumstances apply: (1) The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed. (2) The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed."

Police officers responding to domestic violence calls usually act cautiously and make an arrest. When the arrest is made, the decision about pressing charges goes to the District Attorney's office. The DA’s office will likely file charges based on:

  • The urgency of the 911 call
  • Evidence of violence in a police report
  • Medical records
  • Witness statements that support the charges
  • Prior convictions or accusations of domestic violence against you
  • Any attempts by the victim to file restraining orders against you
  • Any statements you made that can be interpreted as a confession

In addition, if a case reaches a preliminary hearing and the alleged victim does make a statement, that may be admissible even if it is recanted later.

Without the witness’s testimony, the DA may only have circumstantial evidence of a crime, but that may not stop them from pursuing a conviction. Even with the burden of proof placed on their side, they may still pursue strict penalties for a domestic violence accusation.

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What if the Victim Doesn't Want to Testify?

Situations where the alleged victim doesn't want to testify in a domestic violence case brings California Civil Code Section 1219 into the case. This law states:

"Notwithstanding any other law, no court may imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt when the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime. Before finding a victim of a domestic violence crime in contempt as described in this section, the court may refer the victim for consultation with a domestic violence counselor."

This law states that in California, the alleged victim of a domestic violence charge DOES NOT have to testify in the case. Generally, a judge will hold a person in contempt and punish them for refusing to testify. Domestic violence cases are one of the few exemptions to this rule, meaning a victim can refuse to testify without facing contempt of court charges. However, they may still face minor fees or community service if they refuse a subpoena.

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Can Someone Still Be Found Guilty If The Accuser Doesn't Testify?

Yes. In California, it is legally the state pressing charges against you in a domestic violence case and not the victim. So, what the victim wants in terms of dropping charges has little effect on the legal process.

If the victim refuses to testify in a domestic violence case and there are no other witnesses to the scene, there's a good chance the charges will get lowered or dismissed. California is tough on domestic violence cases, so don't be surprised if the District Attorney still prosecutes the crime. They may use other circumstantial evidence to prosecute your case.

For example, if the alleged victim called 911 in an excited state, then that tape can be used as evidence against you. While your defense may attempt to have the tape dismissed as hearsay, there are exceptions to this defense. With domestic violence cases, the most common exception is “excited utterance,” which refers to when a witness makes a statement during a stressful moment, such as during a 911 call. These statements, even if recanted, can be taken as truthful under California law. Thus, a DA could use a 911 tape to pursue a domestic violence conviction.

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Why You Should Speak to an Experienced Orange County Domestic Violence Attorney

California courts can impose harsh penalties in cases of domestic violence, even when a victim refuses to testify. However, these cases are not hopeless. By working with Law Office of Michael L. Guisti, you can trust that our legal team will thoroughly investigate your case and craft a strong defense to have the charges against you dropped. This can include:

  • Motioning for circumstantial evidence to be dismissed
  • Casting doubt on police reports and medical records
  • Arguing that you acted in defense of yourself or others, such as your child
  • Convincing the alleged victim to testify on your behalf
  • Showing that your rights were violated in an arrest

No one should be punished for a crime they did not commit. We at Law Office of Michael L. Guisti are dedicated to providing thorough defense strategies. If you are being charged with domestic violence in Orange County and the alleged victim is refusing to testify, you need to contact our office immediately. The prosecution has already started building their cases against you, so don’t hesitate to speak to our Orange County criminal defense lawyers to prepare your defense. Call our office at (714) 530-9690 or toll-free at (888) 478-8999 to discuss your case in a free consultation.

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Whether you're facing a felony or a misdemeanor, don't risk a conviction. Act quickly to redeem your reputation and protect your record by consulting with our Orange County criminal defense lawyer. Call today to schedule your free consultation.

(714) 530-9690

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“It was strongly recommended that I call federal defense attorney Michael L. Guisti. He had several investigators look at records and such, and my federal case was dismissed. Michael Guisti does what few attorneys can do, beat the federal government, and that is why if you’re in trouble with the government you need to call Michael Guisti right away!”

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“Back in 2003 I was facing attempted murder. My family hired Michael Guisti to represent me. He is a very good attorney. He always answered my calls, addressed my questions and concerns, and kept me updated about my case. Thank you Michael Guisti for winning my case. I highly recommend anyone facing a criminal charge to see Michael Guisti.”

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Case Results

sex crimes

Case Dropped

Young man charged and arrested for sexual battery.


Case Dropped

Man charged with assault with a deadly weapon for hitting someone in the face with a heavy metal dust pan.

drug crimes

Served Less Than 30 Days in Jail

Young man charged with selling 1000 tabs of ecstasy to undercover officer.

Attempted Murder

Reduced to Assault With Deadly Weapon

Young man knocks the eye out his victim with a metal pipe. Charged with attempted murder and aggravated mayhem. Both cases carried life sentences.

Assault & Battery

Serves 80 Days on Work Furlough

Woman arrested and charged with assault with a deadly weapon using scissors on a co-worker.

Vehicular Assault

Serves 80 Days on Work Furlough

Man charged with three felony counts of vehicular assault with a deadly weapon.


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