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Chris Dec. 20, 2014

Last week one of my clients’ cases was favorably resolved. Three charges related to an incident of alleged domestic violence between her and her husband–breach of peace, assault in the third and risk of injury of a minor (a child was present)–were nolle’d by the State after a family relations referral.

Family violence cases (those involving two more more participants who are in the same household or in or were in a marriage or dating relationship of sorts with one another) can take a few tracks depending on the charges, particular allegations and history of the participants. Family Relations, an office of Court Support Services, may retain a case and develop a plan. Such a plan could involve counseling, substance abuse treatment or another service relevant to the issues in the case. If Family Relations deems the plan successful, it can recommend that the State nolle the case. The State’s Attorney makes the ultimate decision to prosecute or nolle criminal charges. If the Family Relations plan does not result in a nolle or the case is not appropriate for a referral, it may be eligible for the Family Violence Education Program (FVEP), a diversionary program that involves regular sessions and other conditions that could last a year or more. Upon the granting and successful completion of this program, the charges are dismissed by the court. As I wrote before, programs are discretionary and subject to eligibility. When a case does not go to Family or FVEP, it will follow the usual criminal track of plea negotiations and trial, which can still result in another program or deal for a nolle. A case does not have to follow any of the plans even if eligible if the client does not want it to: he or she always has the right to trial.

The cases that go through Family Relations typically involve participants who do not have previous arrests or convictions for family violence and the incident and charges are not severe. All criminal cases and all family violence incidents are serious, however there is a difference between a dispute that got out of hand and an ongoing, violent and abusive relationship.

I say participants because many family violence incidents result in both (or more) parties being arrested and charged, including the person who called the police. A person can be both an aggressor and a victim. Mutual protective orders are commonplace. It may be difficult when a participant does not see himself or herself as the aggressor and thereby does not want to participate in the recommended program. This is where the attorney’s role as counselor becomes paramount. Once a person is in court fighting a criminal case–one which can lead to the loss of liberty and devastating collateral consequences (immigration, housing and firearms restrictions for felons just to name a few)–the goal is to get out as unscathed as possible. When the State brings charges and probable cause is found by the court, options are limited. Only the State can drop the case and only the court can dismiss it and neither will automatically believe a client’s story no matter how right it might actually be. Trials can be lost no matter how good a case appears. The other participant or a witness might tell a different story. When you have the chance to get out from under criminal charges without a conviction and without the risk of losing at trial, it is difficult not to take it. Sometimes getting out without jail time even with a conviction is good enough.

Most nolles are conditional. When the State nolles a case, it becomes a dismissal after 13 months and the charges cannot be brought back. Either party may move for dismissal at anytime after a nolle. With a conditional nolle, as often used in family cases, the State nolles charges but reserves the right to refile if the accused violates one of the conditions of the deal which, for example, include no further criminal involvement, no further threats or violence.

In my most recent case, my client worked hard in attending family therapy and cooperating with DCF. As a result, the case is over for now and on track for a final dismissal. The case is no longer pending and visible online. There are no more court dates or counseling sessions. The client can resume her life with minimal fear of being convicted of criminal offenses (which included a serious felony in the risk of injury).

Happy holidays, everybody. Try not to fight with your families.