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Family Violence Charges: 5 Reasons to Leave Before the Police Arrive

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Domestic violence, referenced as “family violence” in Texas Penal Code §71.004, is one of the most common types of 911 calls received by police in this country, with one research study suggesting that as many as 50% of all police calls historically have dealt with domestic violence complaints.  See, Hendricks, J., ed. Crisis Intervention in Criminal Justice and Social Services. Springfield, IL: Charles C Thomas Publishers, 1991.

The crime of “family violence” is defined by state law as:

(1)  an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2)  abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or

(3)  dating violence, as that term is defined by Section 71.0021.

With Stay-at-Home orders and Coronavirus Quarantines, the number of family violence calls have escalated.  The COVID Pandemic is reported to have increased domestic violence police calls by 7.5% during the months of March – May 2020 alone.  See, Leslie, Emily, and Riley Wilson. “Sheltering in place and domestic violence: Evidence from calls for service during COVID-19.” Journal of Public Economics 189 (2020): 104241.

Here in Texas, family violence is something that happens in every county and at every socio-economic level.  According to the Domestic Violence Resource Program of the State of Texas’ Judicial Branch, family violence is an ongoing and serious problem in the Lone Star State:

  • less than 50 percent of all family violence incidents are actually reported to the police; and
  • nearly 32% of all Texans (37.7 % of females and 26.8 % of males) have experienced intimate partner violence in their lifetimes.

From a law enforcement perspective, family violence calls are always considered as potentially violent and assumed to be dangerous. Officers die in these situations.  For more, read “Domestic Violence Calls Proven to be Most Dangerous For Responding Law Enforcement Officers,” written by Cheryl Mercedes and published by KHOU-TV on December 13, 2019.

Most Texas criminal defense attorneys represent a great many clients over the course of their careers who are facing serious criminal charges resulting from family fights or arguments between couples that have culminated in the police being called to the scene and arrests being made on family violence charges.

Five Reasons to Leave Before the Police Arrive in a Texas Family Violence Call

From my years of experience as both prosecutor and defense counsel here in Texas, I have some perspective on these matters and a position to take on what a man should do when the woman he lives with (wife, girlfriend, partner), accuses him of family violence.

My position is simple:  if you are a man having a fight with your woman in your home, and she calls the police, then it may be wise for you to leave before the police arrive.  I have five reasons for taking this position.

Warning: The Intoxication Factor – Don’t Risk Harm or Arrest for Public Intoxication or DWI

Before delving into my five reasons for leaving, I do need to warn about the possibility of being high or drunk in this situation.  There’s a big possibility that someone involved in a domestic violence situation will be under the influence of drugs or alcohol.

The decision to leave the home before the police arrive – for any one or more of my five reasons – comes with the caveat that this depends upon your level of sobriety.  If you cannot drive your car safely, or if you cannot walk away without endangering yourself, then it is best to stay put.

Reason One:  It is Safer for Everyone Involved if You Leave

Usually, there are several people involved in a domestic violence incident.  There will be the couple, others in the home (including children), and the responding police officers.  There is also the 911 operator who is talking with the complainant over the phone, asking that they “stay on the line.”

When someone is calling to accuse another person of assaulting them, the 911 operator is trained to respond in certain ways.  One of their first questions will be to ask “Is the person who assaulted you still there?” 

That answer will be conveyed by the 911 operator to the responding police officer.  That police officer will follow department training, as well.  He or she has been trained to approach any family violence scenario as a volatile situation where the officer must be ready to use a weapon against anyone who threatens the safety or well-being of the officers or others at the scene.

Comparatively, if the 911 operator is able to tell the officers that the accused person has left the home and is not present, then the police arrive much less wary of imminent violence.  This is safer for the officers as well as those remaining in the home.  It is also safer for the accused.  Remember, it is not against the law for someone to leave the home after the police have been called.

Reason Two: Stay and Probably Get Arrested

My second reason to posit that somebody being accused of family violence should leave the scene is because it’s been my experience that anyone that waits there for the police to arrive is likely going to be arrested by the officers and taken down to jail.

The officers arriving on the scene will investigate the incident using standard operating procedure based upon their training.  The police will have two main concerns: first, their own personal safety; and second, to protect against future violence between those involved in the incident.

It is not difficult for the police officer answering a family violence call to make an arrest, because all they need to do is establish some type of probable cause to do so in order to meet constitutional due process requirements.

What is probable cause?  Probable cause is the lowest burden of proof established in the law.  It is less than the criminal courtroom’s “proof beyond reasonable doubt,” and it’s also less than the civil court’s “preponderance of the evidence.”  It is a relatively easy burden to meet.

At the family violence call, the police officer will be looking for probable cause evidence to support an arrest.  He or she will not investigate things like self-defense, no matter how strong that defense.  Police officers are not trained to investigate defense claims.  They look upon defense arguments as things presented to a judge when charges are brought by the prosecutor.

For someone who remains at the scene of a family violence call in Texas, it is very likely that the police officer will arrest that individual and let the criminal justice system being to work.

Of course, leaving the scene does not thwart an arrest.  Instead, the police may issue and “at-large warrant” for your arrest.

What is an at-large warrant?  If there is no individual to arrest at the time, the police will undertake an investigation to gather admissible facts for the prosecutor to use.  The completed investigation file is forwarded to the District Attorney’s Office, and the ADA presents the findings to the Grand Jury where a decision is made on probable cause.  If the Grand Jury decides there is probable cause to arrest, then an “at-large warrant” is issued.

There have been situations where at-large warrants are not issued.  In these matters, facts or circumstances that may have been brought to light down at the police department or with the ADA before the at-large warrant can become activated (like when the defense attorney presents additional information to the authorities before a warrant is finalized).

Bottom line, someone who leaves the scene after the police have been called may never be arrested.  This is the second reason for my position that it is better to leave.

Reason Three:  Avoid Giving a Statement to the Police

When arriving at the scene in response to a family violence call, the police officer will be wearing a body camera.  That camera will record everything that is said to the officer.  That transcript will be shared with the ADA.

The accused who stays at the scene and talks with the police is giving lots of facts and information to the authorities that can later be used against him.

The police will separate the accused from the accuser.  Neither will be able to hear what the other is telling the officers.  In my experience, these are emotional and intense situations, and it is very common for inaccurate information and outright lies to be told to the police.

It is simply a great disadvantage to stay and answer police questions at a family violence call.  There is no law that mandates you to stay and give a statement to the police.

For more on this issue, watch my video and read Don’t Ever Talk to the Police! Never Give a Statement to Law Enforcement in Texas Criminal Investigation.

Reason Four: Don’t Help the District Attorney Prove the State’s Case

Family violence incidents are filled with upset, anxious, and emotional individuals who know each other well, and the 911 call to the police just makes things even more intense.  In my years of practice, I have seen a very common result in these cases after everyone has had a chance to cool off and let some time pass.

It is often the case for the person who made the 911 call, and made accusations at the scene to the police officers, to change their story when they come to court.  They change their mind.  Sometimes about little things, sometimes about the entire event.

In these cases, the accused may be best served by going to trial and not negotiating a plea deal with the ADA.  This forces the accuser to take the witness stand, and testify as to the truth of what really happened under oath.

Another factor here:  it is the duty of the ADA to prove the family violence charges brought against the accused with admissible and authenticated evidence that meets the “beyond a reasonable doubt” burden of proof.  The ADA has to bring the accused to court to testify if you go to trial.  The case cannot be established without at least the minimum “finger pointing” which identifies the defendant as the person who allegedly committed the bad acts.

If the accuser fails to cooperate with the ADA, or if the accuser cannot be subpoenaed for some reason, then the ADA has a difficult time meeting the state’s burden of proof.

What about someone else doing the “finger pointing” identification?  While 911 operators are trained to ask for identifying information like names, address, if you are married, are there kids in the house, etc., that may not be enough for the ADA to meet evidence laws.  It is arguably hearsay for an operator miles away to try and “finger-point” identify someone the 911 operator never saw as the person at the family violence scene at the time the 911 call was made.

From a criminal defense perspective, it can be a pretty decent defense in a family violence case if the state is unable to find the accuser (complaining witness) and bring them to the witness stand.  The defense can assert that there has not been proper identification.

Of course, if the person stays at the scene until the police arrive, then the officers can provide the “finger point” identification.  This is my fourth reason why the accused leaving the scene is wise, since it doesn’t help the ADA to prove up the state’s case.

Reason Five:  Leaving the Scene Helps with the Bond and Protective Orders

If someone stays at the scene of a family violence call until the police arrive, the accused most likely will be arrested by the police officers on a misdemeanor family violence charge.

The officers will take this individual from the scene to jail, where the jail magistrate usually follows up the police arrest with issuing an Emergency Protective Order.  The magistrate’s reasoning is to keep future violence from happening by ordering the accused to stay away from the accuser for the time period stated in his or her order.  For the most part, these Emergency Family Violence Protective Orders are within the magistrate’s discretion on whether or not to issue one, and for how long they are to be in effect.

The Protective Order will state that the accused is not to go near the residence or the place of work of the accuser (complaining witness) for stated distance and for a specific length of time. Usually, the family violence emergency protective order involves a misdemeanor assault case and covers one or two months (between 31 and 61 days). The time period can be longer, covering up to three months (91 days) if a felony deadly weapon case is involved.

If this order is violated, then it is a separate crime.  It is a Class A Misdemeanor to violate the Emergency Family Violence Protective Order under Texas Penal Code § 25.07.

Of course, if someone leaves the scene before the police arrive, then they are not there to be arrested.  The above-described process of getting an “at-large warrant” has to be followed before an arrest can be made on family violence charges.

Since this process may take a week or two before the warrant is issued, the magistrate is much less likely to find a need for an Emergency Family Violence Protective Order if things have been calm and nothing future has happened since the 911 call was made.  The magistrate may still issue an order, it is within his or her power to do so; however, the time gap lessens its likelihood.

Therefore, it is wise to leave the scene after a 911 family violence police call because this increases the possibility of avoiding a Protective Order curtailing the accused’s freedom to go home, for instance.

Another correlated benefit here deals with bonds.  In some Texas family violence cases, after being taken down to jail, the accused may be able to be immediately released from jail on bond.  However, if the jail magistrate reviews the case and finds that immediate release of the defendant on bond could result in continued family violence, based upon probable cause that magistrate has the power to put a one or two day (24 to 48 hour) hold on that bond release.  Then, the defendant has to sit in jail even after posting bond.

It has been my experience that magistrates view someone who stays at the scene after a 911 family violence call to the police as being someone who is a risk to return to the scene and commit future family violence.  This finding is often helped along by police officer testimony about the scene being highly volatile at the time of the arrest.

However, for the accused who left the scene and is not arrested for one or two weeks, under an “at-large warrant,” the hold is much less likely to be ordered by the magistrate since it should be seen as unnecessary (assuming there has been no further incidents in the meantime).

Leaving After 911 Family Violence Call and Zealous Criminal Defense

Ribboning through this discussion of my five reasons for leaving the scene after a 911 family violence call is how the accused not only can avoid immediate arrest, but also the possibility of a one or two day stay in jail even after making bond – as well as the possibility of avoiding any arrest at all if an at-large warrant can be avoided.   These are serious charges involving complex personal relationships and the need for an experienced and zealous criminal defense lawyer as soon as possible after the police are called, the better for the accused and his family.

To learn more, watch my video:

Also read:

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles “Pre-Arrest Criminal Investigations” and “10 Questions to Ask Before You Hire a Criminal Defense Lawyer.“

 
Posted on by Michael Lowe , on Arrest and Indictment, Family Violence, InDepth Articles

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