Family violence calls in Dickinson, League City and the rest of Galveston County move fast. An argument at home, a neighbor calls, or one partner calls, and within minutes officers are at the door deciding who the victim is and who's going to jail. What you say and do in that window can shape the whole case. Here's what I tell people.
The first person to call is usually treated as the victim
I actually heard an officer say it's kind of first come, first served. The first person to call police is most likely to get police help and be listed as the victim. The other person, even if they're actually the victim or totally innocent, gets treated as the suspect. We get cases like that all the time: our client was just the second person to call about an incident, they get charged with the crime, and the other person is treated as the victim.
If you're the one who called police because you were hurt or threatened, it's probably okay to talk with the officer. But if an officer is trying to talk to you first and you don't know what it's about, the only words I'd say are: "Thank you, officer. Let me get your name and phone number so my lawyer can give you a call back."
"Am I free to leave?"
If police stop you, you may have to stop. If you don't stop when an officer is trying to detain you, that's evading arrest or detention, and on foot that can be up to a year in jail.
So stop, be polite, and ask: "Am I free to leave?" If the answer is no, you're being detained, and the officer has to justify that with reasonable suspicion, specific articulable facts. If they don't have it, we're going to win that issue, but we win it later, in court, when the judge suppresses the evidence.
You don't have to answer questions. You do have to give your name once you're under arrest; refusing then, or lying about your name, is a separate charge called failure to identify.
Don't consent to a search of your home or car
If officers ask to search, all you need to say is: "Officer, I do not consent to any searches of my car or home." If you consent, they don't need a warrant and they don't need probable cause.
People ask, "If I have nothing to hide, why not let them search?" Because you don't always know everything that's in your car or home. Other people have access to it. And you may not even know what the officers are looking for. A consent search can implicate you even if you're totally innocent.
Remaining silent is exactly what you should do
The Fifth Amendment says you have a right not to be a witness against yourself, and Miranda versus Arizona extends that to police interrogation. Your silence cannot be used against you. Even if police read you your rights and you say, "No, I don't want to talk," that can't be played in front of the jury.
"I have nothing to hide, so I'll just talk to them" is bad advice. The only thing that can happen when an innocent person talks to the police is that they say something that makes them look like they're not innocent.
If an officer calls and asks you to "come down to the station"
If you get an unsolicited call from an officer asking you to come in and answer a few questions, you're probably the subject of an investigation. Don't go without an attorney. Talk to your attorney first and let them reach out to find out what it's about.
That call could be about a drug investigation in your neighborhood, or it could be about somebody reporting family violence from a year and a half ago in a relationship that's been over for six months. Those are two very different things, and you shouldn't walk into either one without knowing which it is.
What the charge can be
Most misdemeanor assault family member cases are filed as Class A misdemeanors, with a range of up to 365 days in jail and a $4,000 fine, and probation for up to two years. Some are Class C, fine-only. But even a Class C family violence offense can be used to enhance a future family violence allegation to a felony with a range of two to 10 years in prison.
Certain cases are felonies from the start, including assault family member with a prior conviction, impeding breath or blood (choking or strangulation), and aggravated assault family member with a deadly weapon. And a prior family violence case that ended in deferred adjudication can still be used to enhance a new one. Only a true dismissal keeps it from enhancing future offenses.
The protective order that follows the arrest
After a family violence arrest, the magistrate can sign an order of emergency protection under Article 17.292 of the Texas Code of Criminal Procedure. You could have a protective order that kicks you out of your own home for 61 days on a misdemeanor, or 91 days on a felony involving a deadly weapon.
People ask me, "I haven't even been found guilty yet. Can the judge do this?" The courts have consistently held that these protective orders are valid. You can be kicked out of your own home.
And even when the protective order runs out after 61 or 91 days, you may have a bond condition that keeps the same restriction in place. Bond conditions last for the entire case. Violate one, and you go back to jail, usually on a higher bond.
Why this matters long after the case
Family violence cases can keep you from owning firearms and can keep you from being hired. That's why it's worth fighting an assault family member charge carefully, even when the maximum punishment is a fine.
This post is for educational purposes only and is not legal advice.