What to Do If Your Husband or Wife Is Arrested for Domestic Violence in San Jose

If your husband or wife was just arrested for domestic violence in San Jose, the most important fact is this: police make the arrest, but the District Attorney decides whether to file charges. The days between the arrest and that decision are when a San Jose domestic violence lawyer can make the biggest difference.

The First Hours After the Arrest

• Bail takes time. Expect roughly 6 to 8 hours after booking before bail is set.
• Typical bail amounts. A felony domestic violence booking is usually $25,000, unless other charges are added. A misdemeanor is usually $10,000.
• There will likely be an emergency protective order. Police often obtain one at the scene. Follow it exactly, even if you both want to be together.
• Don't talk about the incident on jail calls. Jail calls are recorded and can be used as evidence.
• Call a defense lawyer now, before the filing decision. Every step after that is easier when the case is shaped early.

Who Decides: The DA's Domestic Violence Unit

In Santa Clara County, a dedicated Domestic Violence Unit inside the District Attorney's Family Violence Division handles these cases. In its own words, the unit "reviews all such cases and determines what charges will be filed," for misdemeanors and felonies alike (Santa Clara County DA).

Its stated philosophy is that domestic violence is "a crime against society (not a private family matter)." In practice, that means:

• The alleged victim does not control the case. The DA files, or declines to file, based on the evidence.
• These prosecutors specialize in domestic violence. They know the evidence rules and the common defenses well. Your defense needs to know them better.

Evidence, Not "What Really Happened"

Couples are often surprised by this: a defense lawyer's job is to look at what the prosecution can prove, not to settle what really happened. Our system puts the burden on the prosecution to prove every element beyond a reasonable doubt, using evidence the court will allow.

So we ask different questions than you might expect:

• What evidence exists? That means 911 recordings, body-camera video, photos, medical records and statements.
• Which of it is admissible? Evidence the judge won't let the jury hear can't convict anyone.
• What can we keep out? Challenging admissibility is often the strongest lever we have, before and after charges are filed.

The DA weighs the same things before filing. If the admissible evidence is thin, the case may never be filed.

The Hearsay Rule and the 911 Call

Hearsay is an out-of-court statement offered to prove that what it says is true. California's rule is simple: hearsay is not admissible "except as provided by law" (Evid. Code § 1200). The fight is usually over the exceptions.

Why the 911 Call Usually Comes In

Most judges will admit the 911 call under the spontaneous statement exception, which most of the country calls the "excited utterance" rule. Under Evid. Code § 1240, a statement is admissible if it describes an event the speaker perceived and was made "spontaneously while the declarant was under the stress of excitement" caused by that event. A frightened caller describing what just happened is the textbook example.

The U.S. Constitution doesn't usually block it either. In Davis v. Washington (2006), the Supreme Court held that statements to police are "nontestimonial" when the primary purpose is "to meet an ongoing emergency." The 911 call in that case was admitted even though the caller never testified.

Where the Defense Has Room

• Calm, after-the-fact statements. The same Supreme Court decision held that statements to officers after the emergency had ended, describing past events, are "testimonial." Those generally can't be used unless the person testifies and can be cross-examined.
• Time and tone. The longer the gap between the event and the statement, and the calmer the speaker, the weaker the case for "spontaneous."
• What the call actually says. A 911 call is often shorter and vaguer than the police report built around it.

Other Statements: Who Has to Testify, and Whose Words Count

Most Other Statements Need a Live Witness

Outside exceptions like the 911 call, the alleged victim's account generally has to come from the witness stand, where the defense can cross-examine. A written statement or an officer's retelling of an interview usually can't replace testimony.

The Accused's Own Words Are Different

Anything the accused says can be used against them. Under Evid. Code § 1220, a party's own statement offered against that party is not barred by the hearsay rule. That covers "I'm sorry," "I just pushed her," text messages, and recorded jail calls. The safest statement is no statement: be polite, ask for a lawyer, and say nothing about the incident.

"I Don't Want to Press Charges" Doesn't End the Case, and Can Backfire

The alleged victim has no say over whether charges are filed. That decision belongs to the DA. Telling the DA "I don't want to prosecute," or changing the story, often works against the accused:

• Inconsistent statements become evidence. If the alleged victim testifies differently from what they told police, the earlier statement can be used for its truth, not just to impeach (Evid. Code § 1235).
• Prosecutors argue a motive to recant. They frame a change of heart as pressure, financial dependence or fear, not as the truth finally coming out.
• Experts can explain recanting to the jury. California allows expert testimony on intimate partner battering and its effects on victims' behavior (Evid. Code § 1107). It is often used to explain why a victim would minimize or take back an accusation.

The better route is for the defense lawyer to deal with the DA directly, using evidence and the law, without putting the alleged victim in the middle.

If the Alleged Victim Receives a Subpoena

A subpoena is a court order to come to court. If you are the alleged victim and you are served with one, here is what California law says.

• You still have to show up. A subpoena is not optional, even if you don't want the case to go forward. If a witness fails to appear, the court can issue a warrant for their arrest (Code Civ. Proc. § 1993).
• You can't be jailed for refusing to testify about the domestic violence. Under Code of Civil Procedure § 1219(b), a court "shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning" that crime. Before finding a domestic violence victim in contempt, the court may refer them to a domestic violence counselor, and those conversations stay confidential.
• Jail is off the table, but other consequences may not be. Section 1219(b) bars custody. Contempt can otherwise carry a fine of up to $1,000 (Code Civ. Proc. § 1218), and judges handle refusals differently.
• Refusing to testify doesn't automatically end the case. As explained above, the 911 call and other spontaneous statements may still be admitted without your testimony.
• Talk to your own lawyer before you testify. If your testimony could expose you to criminal liability, you may also have a Fifth Amendment privilege, and a lawyer can assess it. Summit Defense represents alleged victims in some cases, but never in the same case where we represent the accused.

Ways These Cases Are Resolved

Every case is different, and no lawyer can promise an outcome. These are the main paths:

1. No charges filed. In some cases, we may be able to avoid charges altogether. We reach out to the DA before the filing decision, raise evidence problems, and present information that helps our client.
2. Voluntary counseling (DVAP). Santa Clara County has 16-week Domestic Violence Accountability Programs; the Superior Court publishes a list of providers. Enrolling voluntarily, before anyone orders it, can give us something concrete to negotiate with: a dismissal, a reduced charge, or a decision not to file.
3. A reduced charge. For example, a felony reduced to a misdemeanor, or a lesser offense with fewer long-term consequences.
4. Trial. When the admissible evidence is weak, taking the case to trial is a real option.

Why Avoiding a DV Conviction Matters

If someone is convicted of a domestic violence crime and granted probation, California law sets minimum terms: at least 36 months of probation, a protective order, and a batterer's program lasting not less than one year of weekly sessions (Penal Code § 1203.097). A 16-week program completed voluntarily is a very different commitment from a year-long court-ordered one.

Protective Orders, and What Not to Do

Stay-Away Orders in Santa Clara County

If the case is charged, the court will issue a criminal protective order. In Santa Clara County, the court generally keeps a full stay-away order in place unless the protected person completes a 6-hour victim awareness class. This step is unique to Santa Clara County. Until the order is changed, it must be obeyed exactly, even if both spouses want to reunite.

What Not to Do

• Don't contact the alleged victim if an order prohibits it. A violation is a new crime, and it can cost the accused their bail.
• Never ask, pressure or encourage the alleged victim to drop the case, change the story or skip court. Trying to dissuade a victim or witness from reporting or testifying is a separate crime, punishable by up to a year in county jail or state prison (Penal Code § 136.1).
• Don't post about the case on social media or text about it.

Frequently Asked Questions

Can my spouse just drop the charges?

No. In Santa Clara County, the DA's Domestic Violence Unit decides whether to file. Saying "I don't want to press charges" can even be used against the accused, as explained above.

Will the 911 call be used even if my spouse won't testify?

Often, yes. Most judges admit 911 calls as spontaneous statements, and the Supreme Court has held that calls made during an ongoing emergency aren't barred by the right to confront witnesses. Other statements are easier to challenge.

Can the case be resolved without charges?

Sometimes. When we get involved before the filing decision, we may be able to show the DA that the admissible evidence won't support a charge, or negotiate a resolution such as voluntary counseling.

Can the alleged victim be jailed for refusing to testify?

No, not for refusing to testify about the domestic violence itself (Code Civ. Proc. § 1219(b)). But a subpoenaed witness must still appear in court, and other contempt consequences, such as a fine, may still apply.

How soon should I call a lawyer?

Right away, before the DA's filing decision.

Talk to a San Jose Domestic Violence Defense Lawyer

Summit Defense represents people in domestic violence cases at our San Jose office and throughout Santa Clara County. Consultations are free and confidential. Call us 24/7 or contact us online.

This article is general information, not legal advice. Every case is different, and past results do not guarantee a similar outcome. Reading this article does not create an attorney-client relationship.

About The Author

Rabin Nabizadeh

Attorney at Law

Rabin Nabizadeh is a dedicated criminal defense attorney with extensive experience in both Federal and State courts around the Bay Area. He has successfully represented clients in cases ranging from Misdemeanor DUI and Theft to serious felonies such as Grand Theft, Burglary, Sex Crimes, and Murder. Notably, Mr. Nabizadeh possesses a unique understanding of Immigration Law, allowing him to adeptly navigate cases with both criminal and immigration consequences. Fluent in Hebrew and Farsi, he also enjoys playing classical guitar in his spare time.