What Evidence Is Needed to Effectively Prosecute a Domestic Violence Case?
Interviewer: What evidence is needed to prosecute a domestic violence case?
Gary Churak: Basically they just have to show that there was an assault, which is bodily contact that causes pain. It’s a very broad criterion for what is classified as an assault. Domestic violence is an assault to a family member and they extend the family members out to dating relationships to cohabitation to spouses, and girlfriends.
Calls to the police come from the victims. They come from neighbors. They come from all over. When the officers show up for a disturbance, 9 out of 10 times they talk to the woman and the man goes to jail.
Many Individuals Involved in a Domestic Violence Case Underestimate the Ramifications of the Charge
Interviewer: Wow, so let me ask, what are some common misconceptions that people have in this day and age about domestic violence cases?
Gary Churak: I don’t think there’s a common misconception because I think everybody understands what it means.
I mean it’s black and white. I think people don’t understand the ramifications of what happens to it. I have situations where I’ve gotten calls from people that said, “I’ve got a family violence case. I got a deferred adjudication that’s still on my record. I was told it would be dismissed,” and I say, “Sorry, your attorney should’ve told you that even though the case is a deferred and it’s been dismissed that it will always stay on your record.
You Cannot Seal a Domestic Violence Charge; It Remains on Your Record Even If the Charges Were Eventually Dismissed
You can’t seal it. If there’s a finding of family violence, under federal law you cannot own a firearm or purchase any ammunition. I mean there are major restrictions on your constitutional rights for having family violence convictions.
In a situation with a man that likes to hunt. If he gets in an argument with his wife and charges are leveled against him, the DA and his court-appointed lawyer or even a private lawyer, might say, “I’ll get you deferred adjudication probation. Don’t worry about it. It won’t go on your record. There’ll be no finding of family violence. You can do whatever you need to do.”
A Conviction or Finding of Family Violence Will Prohibit You from Owning Firearms
During that time period you’re on probation you cannot own a firearm or purchase ammunition. If you are convicted or there is a finding of family violence and that restriction extends throughout your entire life.
Interviewer: If someone’s convicted, they cannot get that ever sealed or expunged?
Gary Churak: With regard to domestic violence cases, they are excluded from nondisclosure, so in other words, you are labeled with the charge. It’s on your record forever.
Interviewer: Going back to when you work with your clients, what are some of the mistakes that your clients make during the process that they may not even know of?
Gary Churak: I don’t know if there’s any common mistake because what happens is the police show up. They slap you in handcuffs. They take you down to jail. You go before a magistrate. You bond out and you got a court date. There’s not a whole lot of opportunity to make errors. The officers sometimes ask you about your side of the story but they don’t really care. They’re there to make an arrest and they’re going to make an arrest.
If the Police Are Called to Your Home to Investigate an Allegation of Domestic Violence, It Almost Always Results in an Arrest
Interviewer: I don’t know if it was due to the act that you mentioned but from what I understand it used to be a little bit different where a police officer would come in, actually try to resolve the issue right there and then. There wouldn’t always be an arrest.
Gary Churak: No, that only occurred in years past. Now there’s standing policy. I know in Bear County and City of San Antonio and a lot of other jurisdictions that if the officers show up at the door, somebody’s going to jail.
Two Parties Arguing Would Not Result in an Arrest but If Any Physical Contact Is Made, It Can Be Classified as an Assault and One Party Will Be Arrested
Interviewer: What if it was like a situation where people were just arguing really loud?
Gary Churak: If there’s no physical contact then you don’t have an assault you just have a disturbing the peace or something similar. But the minute you touch someone, it can be classified as an assault.
In the past, I’ve had the most one-sided cases. I had a case once where the man actually restrained the woman because she was drunk and she was going to go out with the child and take the child out in the car. He was trying to keep her from leaving with the child while she was drunk so he restrained her. The police showed up and he went to jail.