Getting a CDV First Dismissed Due to Lack of Evidence

[ashlaine]

My question involves criminal law for the state of: South Carolina

I was called to come pick up my boyfriend at a bar. He was so drunk, he had fallen asleep at the bar. I was already in a bad mood b/c we had been bickering earlier that day, but went to pick him up anyway. When I got there, I told him it was time to leave, and he refused. We started arguing. I had finally had enough and tried to walk past him to get to my car, and he nudged my upper arm to block me. At this point, a bar patron, someone whom we did not know, tackled him, yelling “You don’t hit a woman!” My boyfriend, who was so drunk he could not defend himself, was punched several times in the face, resulting in being taken via ambulance to the ER for facial lacerations (4 stitches) and a facial fracture. His right eye was almost swollen completely shut. His attacker was not even ticketed, but my boyfriend was arrested for CDV.
My boyfriend has never hit me. We argue, as all couples do, but it has never gotten violent. The bartender was worried about my boyfriend’s attacker being arrested, and kept telling me I better tell the cops what really happened. A policeman finally found me in the bar (my boyfriend was outside being examined by the EMT’s) and asked what I wanted to happen. I told him I did not want my boyfriend going to jail. The bartender (ironically, a “friend” of my boyfriend) told the policeman that my boyfriend punched me in my arm, before I could even begin to tell my side of the story. I told the police it felt more like an open-handed touch, but the bartender insisted that he punched me. The cops and EMT’s checked my arm, and there were no marks. They did not even take pictures of my arm. I told the cops that my boyfriend has never hit me, we have a great relationship, he’s just going through a lot of emotional issues and got way too drunk, and just needed to go home and sleep it off. I even offered to go sleep at my parents’ house so he could rest without anymore confrontation. The cops explained to me that, b/c there were accusations of him hitting me, and I did admit to him touching me, they had to arrest him on CDV. I was very upset, shaking, crying, knowing this was being blown way out of proportion. I had everyone in the bar telling me my boyfriend is a bad guy and I needed to leave him. At this point, the police asked me to give a written statement on what happened. Our roommate walked up and told the cops it looked like my boyfriend had hit me in my face, and he was two steps behind the guy who hit him, about to beat him up. I was not upset at all when my boyfriend supposedly hit me. I did not lose my footing, did not cry out in pain, did not cry. I rolled my eyes at him and tried again to walk past him, and that’s when he was assaulted.

What worries me is the statement that I gave the police. I had been drinking earlier that day, and was extremely emotional. I was sick to my stomach, and kept telling the police, this was b.s. and he did not hit me. I told them I knew how to handle him when he got this drunk. The police seemed to empathize with me, but explained that they were required by state law to arrest him. In my written statement, I said that we had been arguing and he was very drunk, and that he either punched or open-handedly hit me in my arm, and that he was attacked and punched several times.
 
When I attended the bond hearing, the judge asked me if I wanted an Order of Protection, which I refused. He asked me if I was okay with my boyfriend being released that day, and I said yes, absolutely. He posted bond and was out a few hours later. His court date is 12/1/11 and he is in the process of getting a public defender. I have tried calling the victim advocate¸ but they will not return my call. The prosecutor/solicitor has not contacted me.

I want the CDV charge dropped, but I know it is not actually up to me at this point. I am also worried that I will be prosecuted if I change my statement. As far as I know, him putting his hand on my arm to keep me from walking away is not abuse, especially since there were no marks on me. The State is also using his attacker as a witness. Is there any hope of getting this dismissed? What do I do in the meantime, as the victim? Should I prepare a statement? I’m pretty sure his lawyer will request a continuance on 12/1. In addition, my boyfriend wants to press charges against the guy who broke his face, for future medical bills. He may have to have surgery to remove a piece of bone floating around in his cheek.

[Dogmatique]

The act of restraining you, preventing or attempting to prevent you from leaving can be considered battery. You admitted in writing that he had either punched or hit you. The State often expects victims to recant their testimonies, so if the State has a witness (well, they have two don't they? The other guy and the bartender? ) confirming your written statement I don't expect the chances of it being dropped are too strong.

Your boyfriend should absolutely make a report against the guy who attacked him.

[ashlaine]

Would the fact that there were no marks on me, which the EMT and several policemen can attest to, and no photos were taken, be considered a lack of evidence that any assault/battery occurred? I did not feel like I was in any danger when he blocked me. Also, as far as my written statement, could the defense use the fact that I was hyperemotional, had been drinking, and not thinking clearly as a reason for a change in my statement? I have heard something about a victim impact statement, but am not sure of when/why/how I would/could make one. I thought I would have been contacted by the Solicitor by now (it’s been over a week), but I have not. The State has not listed the bartender as a witness, and I highly doubt she would testify. She did not provide any written statement. She has a reputation for being an instigator, for what it’s worth.

[Dogmatique]

Would the fact that there were no marks on me, which the EMT and several policemen can attest to, and no photos were taken, be considered a lack of evidence that any assault/battery occurred?

No. You already made a statement saying something did happen.

You're almost expected to recant at this point; the State doesn't necessarily need you at all.

I did not feel like I was in any danger when he blocked me. Also, as far as my written statement, could the defense use the fact that I was hyperemotional, had been drinking, and not thinking clearly as a reason for a change in my statement? I have heard something about a victim impact statement, but am not sure of when/why/how I would/could make one. I thought I would have been contacted by the Solicitor by now (it’s been over a week), but I have not. The State has not listed the bartender as a witness, and I highly doubt she would testify. She did not provide any written statement. She has a reputation for being an instigator, for what it’s worth.

Here's the thing. You're saying that you were drunk enough to be hyper-emotional...but you're also saying that you clearly recall NOT feeling threatened. Those two things don't exactly mesh together. You're either not in control of your emotions (and hence unable to accurately judge your feelings at all), or you're in control of your feelings and that means you weren't hyper-emotional.

Can't really have it both ways, you know?

[drthyrd]

OP, based on your version of events 3 eyewitnesses claim he hit you (bar patron, roommate, bartender). You admit contact. The fact that you indicate "you knew how to handle him when he got this drunk" makes this type of incident seem like it has occurred before and probably threw up all kinds of red flags.

At some point you most likely will be asked for a victim impact statement. The victim impact statement is generally considered during the sentencing phase (of trial) or if a plea bargain is offered, at that point. The general elements of a victim impact statement include a description of the events surrounding the charges, and your hope for sentencing (or lack thereof). If you are hoping for mercy and want to make it known that you think the charges brought forth are too harsh or too lenient, you can indicate that. The judge and the DA are under no obligation to follow your wishes, but they will be at least aware of your position.

[ashlaine]

I have not had a chance to discuss this with anyone, so I appreciate everyone’s input. Some very good points have been raised. I would like to clarify a couple of details in my post.

I never once felt threatened by my boyfriend. I was more annoyed that he was so drunk.

My statement that I know how to handle him when he’s this drunk refers to the fact that I have known him very well for 14 years, and I, for whatever reason, have always been the one that can calm him down when he’s upset (“upset” meaning sad, angry, etc.). He had taken several liquor shots, and, as I explained to the police officer, he is the kind of guy who should not drink liquor. It’s like someone who gets mean when they drink vodka, but can drink anything else without any change in personality. The bartender actually knows he should not drink liquor, but served it to him anyway, and actually joined him in taking some of the shots.

I did not become “hyperemotional” until I learned how badly he was injured. The police refused to tell me anything, but someone came into the bar saying my boyfriend’s face and shirt were covered in blood, and that he was being taken by ambulance to the ER. I firmly believe that my boyfriend did not deserve that.

When the alleged CDV occurred, everyone was inside the bar, and we were outside on the porch.

As I was writing my statement, I had not eaten much that day, I had a few drinks that afternoon (which I know is stupid), I was exhausted, and was in a sort of state of shock by what was happening. I do not believe I was thinking clearly, especially when I learned of my boyfriend’s injuries. I did not even remember what I had written until I found my copy of the statement when cleaning out my car last night.

[Dogmatique]

I'm not sure why blame is being laid on the bar-tender. Your boyfriend knows he's a mean drunk when he drinks X - hence HE should be the one controlling the intake. But that aside, nothing you've said really changes anything.

[drthyrd]

You came to this board for legal advice, which you have received, but I am going to provide some unsolicited advice in the general sense.

Let your boyfriend face his consequences for his actions. It is for his good that he face consequences now. Let him accept that his behavior toward you was socially and morally unacceptable to the point that strangers felt the need to intervene on your behalf. Let him acknowledge that he needs to address his issues with alchohol and understand that he is, or is on his way to becoming, a batterer.

You have spent hours, and several paragraphs justifying why he hit you and why that is ok with you. It isn't. It may be OK with you now, but at some point in the future, as the behavior escalates and as you have greater attachments (such as marriage, homes, children) it will become more than you can bear. Maybe the intervention is a Godsend. Perhaps your boyfriend can address his behaviors now and avoid you and he becoming a dismal statistic. You can't make it happen though. He has to make that happen by recognizing his role in the situation he is in and believing in his culpability. Absent that - blaming you and all the bystanders - only sets up the next incident.

I recommend you check out AARDVARC's site and that you contact a local DV advocate about what you are experiencing (find one on AARDVARC's site or by calling the National DV hotline). They can help you understand the legal system, which is reason enough to reach out (and they won't force you or push you to leave your boyfriend), but they will also help you learn about relationships that have a physical element.

I post here (occasionally) as a person that was in a DV relationship. For what it is worth, which isn't much, I love my ex. My college sweetheart and my first and only love. I took accountability for all his misdeeds and made them my responsibility until it reached a tipping point of no return. That included incareration for him and a deep loss for me. I wish, more than you can imagine, that I had tried to let him face accountability back when our relationship was less engrained, when maybe change was possible. Too late for me. I hope not the same for you.

Good luck.

[viol8te]

I've been dealing with domestic violence as an officer for over 10 years. This is the first time I've ever heard of someone saying that they reported as much violence as you did under duress, fatigue, inebriation and hunger. Not to say that it's a lie, but wow. Now you have three witnesses that have versions that corroborate escalated violence. The state does not need you anymore. They have more than enough evidence to proceed without you. I wasn't there, so I will not insinuate. But based off the information that you provided, your boyfriend has issues that goes beyond just being too over the limit.

[ashlaine]

I completely understand, and appreciate, everyone’s concern. My boyfriend does have an issue with drinking, which he has admitted, but he has never gotten violent, drunk or sober. I am not taking the blame for any of his actions.

All of my details aside, I am having trouble understanding how he can be prosecuted when 1) there is no physical evidence of any violence or abuse having occurred, which both the EMT's (the EMT actually laughed and said, "Why are we even here?" in front of the police; and 2) the witnesses were all inside the bar, while we were outside. They all said they “thought” he hit me in the face, and never actually said he did. I understand the Solicitor can press charges with or without me involved, but is the Solicitor’s office not required to contact me at some point?