12-20-2019

Can I Get Wilmington Domestic Violence Charges Dismissed?

Domestic Violence

Few other crimes in North Carolina have such direct and collateral consequences as domestic assault. Normally, assault is a Class B misdemeanor, but the aggressive New Hanover County prosecutors regularly enhance domestic assault charges to a Class A1 misdemeanor, pursuant to Section 14-33(c).

As such, these infractions have significant penalties and ramifications, including possible jail time, fines and a violent conviction on your record. Additionally, as a crime of moral turpitude, a domestic assault conviction could have a negative impact on your immigration status, and even if the incident occurred years earlier, it could influence a divorce or other family law case or impact your ability to get a job or promotion in the future.

Depending on the jurisdiction and the District Attorney’s political leanings, some prosecutors NEVER dismiss assault cases under any circumstances, no matter how weak the evidence is. But in other cases, especially if the defendant has an experienced Wilmington criminal defense attorney, a dismissal may be possible. Regardless, you always have the right to a trial.

If you or a loved one have been charged with domestic violence, the best thing you can do is to discuss the situation with attorney Thom Goolsby. At Goolsby Law Firm, we will thoroughly review your case to determine if a dismissal is possible or how you would benefit from fighting the charges. Thom Goolsby will never hesitate to try his clients’ cases.

For a free consultation, contact us online, send a text, or call us at (910) 763-3339.

What Makes Domestic Violence Unique in North Carolina?

Upgrading domestic violence charges is not the only enhancement you may face. For instance, in most jurisdictions, if you are charged with violating a domestic protective order, a normal criminal trespass offense becomes a domestic violence incident. That means a mandatory arrest.

Domestic violence offenses also carry mandatory jail time. Typically, a 48-hour domestic hold applies. A district judge, not a magistrate, must set bail conditions. So, it is almost impossible for a defendant to get out of jail before the waiting period elapses.

Additionally, in simple assault cases, options like pretrial diversion and deferred disposition are usually available, especially if the defendant has no criminal record. Note: these options are normally unavailable in domestic violence matters.

For a domestic violence enhancement to apply, the defendant and alleged victim must share a relationship. The relationship could be:

  • Current or former spouse,
  • Two people who had a child together,
  • Current or former cohabitants, and
  • Current or former dating partner.

Nearly all domestic assault cases involve the first or second category. The latter two categories, however, are subjective. One night together does not make two people cohabitants or dating partners.

How to Get Domestic Violence Charges Dismissed

Contrary to popular myth, physical injury is normally NOT an element of domestic assault. Unless the defendant is charged with strangulation, a “harmful or offensive touching” is sufficient. An injury, like a bruise or red mark, makes the case easier to prove, so it is more difficult to get these domestic violence charges dismissed.

Most criminal cases are single-witness cases. The single witness is typically the arresting officer. The officer is essentially treated like expert witnesses. Police officers have normally testified hundreds of times and have received departmental training in this area. They can make very effective witnesses and can prevent the alleged victim from recanting any harmful statements he/she made at the time of the incident.

But, assault cases are different. They typically hinge on the alleged victim’s testimony. Sometimes, these witnesses are unavailable. Other times, they are biased or incompetent. If the evidence or witness testimony is weak, prosecutors might dismiss domestic violence charges outright, but do not count on it.

Setting the matter for trial is usually the best option in weak evidence cases or when there are issues with the witness. The State must prove every allegation beyond a reasonable doubt. Without a competent witness, it is very difficult the for the State to meet its burden of proof. A trial might also be the only option, since many jurisdictions have no-dismissal policies for domestic violence charges.

I Was Listed as the Victim and I Don’t Want to Prosecute

In the old days, one spouse could invoke a testimonial privilege and refuse to testify against the other spouse. Those days are over. As far as the State is concerned, a spouse victim is simply a witness. Witnesses cannot dismiss domestic violence or other charges. Only the prosecutor can do so.

In fact, if any spouse victim refuses to cooperate, the State can issue subpoenas and attempt to force the spouse to testify against his/her will. Alternatively, the State could use a hearsay loophole, the excited utterance rule, to admit part of the police report into evidence. However, this trick rarely works.

A reluctant spouse victim could explain the situation to the prosecutor who might decide to dismiss the domestic violence charges. Note: prosecutors have the final decision.

Contact Goolsby Law Firm Today

Domestic assault charges are difficult, but not impossible, to successfully resolve. Despite the label the State applies, prosecutors must still prove domestic violence “beyond a reasonable doubt.” This is a high burden of proof. The sooner your lawyer can begin working on your case, the better your chances of obtaining a positive outcome.

For a free consultation with an experienced Wilmington criminal defense attorney, contact the Goolsby Law Firm, PLLC. Call (910) 356-8341 today, send a text, or contact us online. We’re happy to explain what you’re facing and what we can do to help.

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212 Walnut St. Suite 100
Wilmington, North Carolina 28401


Like any quality criminal defense attorney, Thom Goolsby may be in court when you first call, but leave a voice mail or send a text. We’ll get with you as soon as possible, so we can go over what happened, evaluate the case, and explain what comes next.