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Sunday, November 20, 2016

I want to get money from my abuser -- can I make him pay if I get a protective order against him?

We don't usually get questions about prosecuting domestic abuse issues -- most people hire us to defend them against accusations! However, I did receive a question recently from a potential client who wanted to know more about what could be awarded at a DC (or Federal) protective order hearing. So I thought I would share the information and answer her question!
My friend was physically and verbally assaulted by her boyfriend. She had the cops remove him from her apartment (he was not on the lease in the first place). She is interested in filing a protective order, but wants to know whether it can go beyond just preventing him from further contact with her.

First, get better taste in men. Those that punch you are probably not good boyfriend material. Just sayin'. That aside, let's talk about how protective orders work.

D.C. Code §16-1004 - 16-1005 govern CPO - Civil Protective Orders (which is the more formal term for "protective order").

When you file in DC for a protective order, you ask what relief you are seeking and provide evidence of harm by the abuser. You must show how the abuser has committed some act of violence against you (or criminal act: including threats, assault, harassment, etc.). You must show EACH element of the alleged harm. When you go to Court, the judge will complete (or you will settle with the opposing side) an order regarding your motion for a protective order. A section on that "order" includes payment of home expenses, attorney fees, etc. Note, however, generally, a person cannot be forced to pay rent unless they are on the lease and have been paying already.

This is the third page of a petition for a civil protection order. Note the section where you can ask for money, rent, attorney fees, and damages. Download the full CPO petition


When going to Court, it is important to provide evidence of the abuse, and why it would be fair to have the "abuser" pay anything. There is a difference between an order to "stay away" and making the individual pay on going rent payments. That will require a compelling reason. Generally, the Court won't cover your attorney fees unless the abuse was particularly bad.

The ticket to success in protective custody hearings (held on the first floor of the Courthouse on 500 Indiana Avenue) is settlement. Most folks don't want a protective order on their record. To avoid that, they will consent to a settlement that could well include rent payments. However, make sure you chat with an attorney before agreeing to anything. Settlement heaven -- but it can be very dangerous if the individual you are dealing with is genuinely dangerous. Work through your attorney, and let us handle the negotiations. At the Courthouse, if you can't afford an attorney, there is an attorney negotiator that will meet with the parties, individually, for free.

Do you have a question regarding protective orders? Call us! We can help you. Note that handling child abuse allegations are much different, and the advice above does not apply. Call us immediately if there are any allegations of child abuse.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, November 17, 2016

Getting an Arrest Warrant dismissed - how to quash

The errors in my warrant of arrest are that they put the wrong address and phone number for me, so I was never contacted or interrogated in regards to the charge. I was actually filing charges against my ex, when someone at the police station told me about the charge 8 months after the alleged incident. SMH. I'm filing a motion to dismiss. What should I cite to really make a strong argument for a motion to dismiss? There's so many flaws on the prosecution's side. Plus the police officer put the wrong date for the alleged incident on the police report. There is a different date for the alleged incident on the police report and the warrant of arrest.

Generally, you won't be successful on quashing an arrest warrant, no matter how defective. However, once your arrest is processed, you can then challenge the charges, etc. at your initial detention hearing. In VA, you will be seen by the magistrate when you are initially "booked." A bond will be set (unless your crime is particularly notorious), and once paid, you will be released with a return court date. That return date is called an arraignment, and it is at that point you can challenge the arrest.

The discrepancy between the police report, and the arrest warrant is fertile ground for examining the detective or police officer during a preliminary hearing. However, if this is a domestic violence charge (assault on a family member, for example), then you won't have a preliminary hearing, as most DV charges are misdemeanors. Although in VA, you can get a jury trial in just about every criminal instance, a preliminary hearing is limited to felony charges only.

A motion for judgment of acquittal (that's the federal term), or motion to strike charges, usually does not succeed when there is any evidence of an underlying crime -- and it sounds like there was a police report that did list the accurate times, dates, people. In those instances, the court will want to hear from the aggrieved party for the specific reason of not wanting to dismiss a valid case based on a clerical error, or police typo. The question is: was their an underlying offense? Put a different way, if the Court was to dismiss the information (that's the piece of paper that lists the misdemeanor charges) because it had the wrong dates, etc., the prosecutor could just refile, based on the police reports, with the correct dates. It would waste the Court's time, your time, and the police officer's time.

Is there an instance when an arrest warrant can be quashed, or set aside? Absolutely. When the arrest warrant has the wrong person named, or the wrong crime charged. Those are the two most common causes for setting aside a charge. The fact there is an incorrect date, or that you were not interviewed would not, per se, invalidate a warrant. They are certainly not required to speak with you or seek your permission before obtaining a warrant. And a date can be a typo.

When the arrest warrant fails to cite a specific element of the crime (i.e. show probable cause that the crime was committed through an arrest affidavit), that can be used at the preliminary hearing to show failure to demonstrate an element of the crime, which in turn negates the charge. However, that is usually easily overcome by the officer on the stand.

To properly move forward, you need an attorney. You simply lack the training to recognize the best tactic, as this is your first time through the system. No one get's this right the first time! It sounds like you need to turn yourself in, get processed and release on bail or your own recognizance, and then kick this charge when you're in front of the judge. Give us a ring! We can help with this.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, November 15, 2016

How to release an immigrant from detention if the underlying case is dropped

A bit of a mouthful for this blog title -- but it is a surprisingly common topic. What steps do you follow if the case is terminated in Immigration Court, but the client is still detained. This usually happens when there is a joint motion to close (terminate) proceedings, but the Court has not yet ruled on the case. When the next status hearing (called a Master Calendar hearing in Immigration Court parlance) is several months away, or the Court has not yet set a status date, the idea of staying detained when the government has moved to close the case is...galling.

From a fellow practitioner in New Jersey:

I have a case of first impression and I hope you can give me some guidance. OCC [Ed: Office of Chief Counsel -- another name for opposing counsel in an immigration case] just terminated proceedings against my client because his conviction is no longer considered a crime of violence. His next hearing date is December 13, 2016 at Elizabeth, NJ.

My question is: can I get him out sooner since OCC is terminating or must my client wait an additional month in detention (seems counter-intuitive but this is the Government) for the hearing I which the judge will release him?

That isn’t handled by the Court – early release would be through ICE (Immigration and Custom Enforcement - or ICE - is responsible for detaining aliens; although the Court can set bond in certain cases, ICE always has jurisdiction pursuant to ). I would petition his DO (deportation officer). Generally, they want the bed space. Do the following:

  • Write a formal letter to the DO stating the reason for releasing your client early
  • Include a copy of the Government's motion to terminate
  • Include a copy of your G28 (if you have not already)
  • Include a copy of the policy memorandum governing release (see here: policy)

And then nag the hell out of the DO guy (or gal). If the DHS counsel is willing to sign on to your letter, get that signature, too. The main kick, though, is through the DO.

Do you have a question regarding immigration procedure, court, or policy? If so, call us! You can reach us at 1-800-579-9864 or email at admin@hanoverlawpc.com. You can also visit our website, www.hanoverlawpc.com for additional information on immigration laws, policies, and procedures, as well as issue related to criminal, family, and business (civil) law.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com