Hundreds of cases a year in Division 10, and the dismissals turn on something nobody tells you.
Home › Memphis Criminal Defense › Domestic Assault
Memphis Domestic Assault Attorney
Domestic assault is a common charge in Memphis. In fact, besides driving on a suspended license, domestic assault is the most charged crime in the city. There's an entire courtroom dedicated to handling only domestic violence cases. The Shelby County District Attorney's office has a special unit that only handles domestic violence cases. There are more staff, resources and time dedicated to this courtroom than any other in the Criminal Justice Center.
Despite this, more dismissals happen out of this courtroom than any other. Why? Because most couples reconcile long before the bureaucratic nightmare of the Memphis domestic violence courtroom plays out.
The attorneys at Balestrini, Barnes, Jaber & Wood, PLLC have handled hundreds of domestic violence cases every year for over a decade, more domestic violence cases annually than most attorneys handle in their entire career. It's important to note that even though the likelihood of a dismissal may be high, it really depends on the victim's ability to be served with a subpoena, not whether they actually want to prosecute.
A domestic assault charge often comes with an order of protection or a bail hearing, sometimes both. Learn about order of protection defense → | Learn about bail hearings →
The First Day
Tennessee requires a mandatory hold of at least 12 hours before a person arrested for domestic assault can be released on bond, and the magistrate can extend it on a finding that the person remains a threat.
In nearly every case the conditions include no contact with the alleged victim. That is the condition people violate without realizing it is a violation, and it is the one that sends them back to jail.
The Debbie and Marie Domestic Violence Protection Act took effect July 1, 2024. For felony-level domestic assault the court shall order GPS monitoring as a bond condition unless it finds the defendant is no longer a threat. For misdemeanors it is discretionary. The defendant pays for the device.
That fight happens at the bond stage, in the first hours, which is why counsel matters immediately rather than by the first court date. More on bail hearings →
The Part Nobody Explains
Sit in that courtroom on a trial morning and you will watch a run of cases get dismissed around 10:30. Those are dismissals for lack of prosecution.
The State carries the burden, and it carries it through witness testimony. If the witnesses it needs do not appear, the State cannot move forward and the defense moves to dismiss.
That is the single most misunderstood thing about these cases. Everyone focuses on whether the alleged victim wants to go forward. The State does not need them to want to. It needs to be able to compel them.
If a witness is served and does not show, the court can issue an instanter subpoena. That directs an officer to find the witness and bring them in immediately, and the court then orders them back on a date certain or they are arrested. The subpoena becomes a warrant.
Bond Conditions
People come to us after their second or third trip into custody on the same case, convinced the court has it in for them. Usually it is simpler than that.
At arraignment the judge set conditions on your release. The main one is no contact with the alleged victim. If the contact continues, the judge can increase the bond and hold you until the higher amount is posted.
The condition is on you, not on them. A text you answered is still contact.
We can move to amend the conditions to permit contact. What we cannot do is undo a violation that already happened.
What a Conviction Costs
For most people the jail exposure is not the worst part.
A misdemeanor domestic assault conviction triggers a lifetime federal firearm ban under 18 U.S.C. § 922(g)(9), with no exception for hunting, home defense, duty weapons, or military service. No Tennessee court can undo it.
Domestic assault is the only Class A misdemeanor in Tennessee that carries up to two years of probation.
Since July 1, 2024, a domestic assault conviction involving strangulation or attempted strangulation carries a mandatory minimum of 30 days, including evidence-based domestic violence programming. Strangulation can also be charged as aggravated assault, which is a felony.
A second bodily-injury domestic assault conviction carries a mandatory minimum of consecutive confinement. A third carries at least 90 consecutive days and can be charged as a Class E felony. Consecutive means served straight through, not on weekends.
What It Costs
Most firms will not publish this. Ours is below.
A domestic assault is not an ordinary misdemeanor and it is not priced like one. Aggravated domestic assault, a felony, a case that moves up to Criminal Court, or a related order of protection is quoted separately.
If the retainer is the problem
Klarna pays the firm today.
You pay Klarna over time.
Two minutes on your phone. The firm never sees your credit information, and the loan is between you and Klarna. Approval is never guaranteed, because it depends on Klarna rather than anything the firm controls.
Your Attorney
Attorney · Tennessee Bar · Practicing Since 2011
Attorney Jason Balestrini's practice is dedicated exclusively to criminal law in Shelby County, and domestic assault is among his most practiced areas. He has spent more time in the Memphis domestic violence courtroom than most attorneys ever will, appearing before the same judges and prosecutors case after case, year after year. He knows how the special prosecution unit builds these cases, what they prioritize, and where the leverage is.
More dismissals happen out of the domestic violence courtroom than any other in Memphis, but getting there requires knowing the system, the prosecutors, and the specific procedural realities that govern these cases. That knowledge comes from volume and experience. Jason has both.
Common Questions
At least 12 hours before release on bond, and a magistrate can extend it on a finding that the person remains a threat. The hold runs its full course even if the alleged victim asks that you be released.
Possibly. The Debbie and Marie Domestic Violence Protection Act took effect July 1, 2024. For felony-level domestic assault the court shall order GPS monitoring as a bond condition unless it finds the defendant is no longer a threat. For misdemeanors it is discretionary. The defendant pays for the device.
Since July 1, 2024 a domestic assault conviction involving strangulation or attempted strangulation carries a mandatory minimum of 30 days, including evidence-based domestic violence programming. Strangulation can also be charged as aggravated assault, which is a felony.
Representation starts at $750. Aggravated domestic assault, a felony, a case that moves up to Criminal Court, or a related order of protection is quoted separately.
The obvious difference is that domestic assault is an assault committed against a spouse, lover, family member, roommate, or child of any of those. Simple assault is committed against a person with no association or blood ties who does not live with you. An assault against your neighbor, for example, would be simple assault. An assault against your daughter's live-in boyfriend could be domestic assault.
The reason the distinction matters is because domestic assault, if convicted, carries more serious and lasting penalties than simple assault. Domestic assault has a minimum sentence of 11 months and 29 days on probation. A conviction for domestic assault also means that you will never be allowed to own or possess a firearm again for the rest of your life. Read that again. If convicted for domestic assault, you will have to surrender your carry permit and you can never own or possess a gun again.
Maybe. One major area in which domestic violence cases differ from simple assault is the vigor with which the district attorney's office prosecutes these cases. Their policy is that the victim is not the one pressing charges. The State of Tennessee is, and according to the law that's true. Therefore, whether the victim wants to prosecute or not is not automatically determinative.
Domestic violence laws came about because victims often do not want to prosecute after the arrest. Continuous repetition of these events led to more aggressive prosecution. That said, a victim's cooperation is invaluable in defending domestic violence cases. Often domestic violence arises from some other malady such as alcohol or drug abuse or anger management issues. With the victim's advice to the prosecuting attorney, arrangements can sometimes be made for treatment of the underlying problems. Often, if such treatment is sought and completed, the district attorney will agree to dismiss the case.
That's why there is a court system. An attorney may be able to negotiate your case to a favorable settlement, including a dismissal. If no settlement can be reached, your case will likely be set for a preliminary hearing in general sessions court or a trial in criminal court. At that point, the State bears the burden of proving the case beyond the necessary level of proof. In order to do so, witnesses must appear to testify. If the necessary witnesses do not appear, the case may be dismissed, but that may not be the end of the matter.
Come to our office and discuss the details with us. Often, we can formulate a plan to prevent this from happening in the future, such as arranging for a public place to exchange the children. This location is usually designated in the parenting plan or visitation order. We will likely need to get that document amended by the court to reflect the new exchange location.
It is likely that the police made a determination that you were the primary aggressor, meaning they think you started it. But remember, they weren't there, and they didn't see it. That determination can be challenged. An attorney can investigate the facts and present evidence that contradicts the officer's assessment.
You probably did. The district attorney's office keeps a record of an individual's arrests for domestic violence, even if a prior case was dismissed and expunged. If they notice a repeated pattern of conduct, they become more strict about the penalty they seek. If you were convicted previously and the victim is the same as before, Tennessee law prescribes that a stricter sentence must be enforced. Our attorneys can go through this analysis with you and attempt to negotiate even in the face of a stricter mandatory penalty.
This is a common mistake made by judges. While the ability to make bond may be considered as a factor in whether a defendant is indigent, it is not the only factor. However, if the judge tells you to hire an attorney, that is their ruling and must be adhered to. The best thing to do is hire an attorney and fight the judge's ruling with that attorney.
Supply and demand. More arrests are made in Memphis on domestic violence charges than any other criminal offense. Arrests are permitted for domestic violence upon the unsworn statement of a witness. When officers are called to a scene for a domestic violence complaint, an arrest must be made. Because of the great number of arrests, more resources are dedicated to prosecution. The attorneys prosecuting these cases have investigators called victim-witness coordinators who will likely reach out to the victim and any witnesses within days of the event.
It's a group of prosecutors that only handle one specific type of case. This allows them to hone in on the relevant facts and outcome levers to more effectively prosecute you. The domestic violence special prosecution unit means the prosecutor across from you has handled thousands of these exact cases. You need an attorney who has, too.
You witnessed dismissals for lack of prosecution. Those cases were set for a preliminary hearing or trial that day. The State bears the burden of providing evidence through witness testimony. If the necessary witnesses do not appear, the State cannot move forward and the defense moves to dismiss for lack of prosecution. Be careful though. Nothing prevents the case from being refiled. If the case is refiled or an indictment is obtained, a new arrest must be made and a new bond must be posted.
When you were arraigned, the judge informed you about conditions set on your release or bond. The primary condition is that you have no contact with the victim. If contact continues, the judge may increase your bond and take you into custody until you post the increased bond. Our attorneys may be able to amend your bond conditions to allow contact with the victim.
Our attorneys are present in the courthouse at about 8:45 a.m. every morning out of respect for our clients' time. By being there early, we can attempt to be one of the first in line to talk to the prosecutor and avoid either of us being there all morning. Cases get reset for various reasons. Sometimes the prosecutor needs time to investigate facts, sometimes administrative matters with the file. If you ever have questions about why your case was reset, one of our attorneys will take the time to explain it.
You have a constitutional right to hire the attorney of your choosing. Public defenders have an overwhelming case load, especially in the domestic violence courtroom. If you need the special attention and communication that comes with hiring a private attorney, come sit down with one of our domestic violence attorneys. That said, you should not hire a private attorney just because they are cheap enough to afford. Hire one because of their experience and track record in this specific courtroom.
The court considers many factors: the defendant's contacts with the county, the likelihood of conviction, danger to the community, criminal record, prior failures to appear, and the severity of the offense. The ability to make a bond is no longer considered. A first-time offender from Shelby County arrested for misdemeanor domestic assault will have a significantly lower bond than a multiple offender from out of state arrested for aggravated assault with six prior missed court dates.
If a witness is served with an initial subpoena but fails to appear, the court may issue an instanter subpoena. This directs a law enforcement officer to find the witness and bring them to court immediately. The court will then order the witness to return on a date certain or be arrested. Essentially, the subpoena becomes a warrant.
Either the bond conditions have been violated or the prosecutor has sought and obtained an increased charge, such as upgrading from domestic assault to aggravated assault. A court may change a bond when circumstances change. Our attorneys have the knowledge and skill to combat this and force the court to perform the proper analysis instead of simply doing whatever the prosecutor asks.
Because they have the most exposure to the judge and know more about the domestic violence laws than many of the attorneys standing across from them. These prosecutors only handle domestic violence cases, so they are only in that courtroom. If your attorney doesn't know the law necessary to defend you, the prosecutor runs roughshod over them and gets exactly what they want. This is another reason why experience in this specific courtroom matters.
Anger management is a course which educates participants on events that lead to anger problems and ways to manage that anger. It is sometimes offered as a method to seek dismissal of an assault case or as a condition of probation. Generally it is an eight-week course, meeting once a week for one hour. It is most commonly negotiated after a DVAC assessment shows a low likelihood for a repeat domestic incident.
Batterers intervention is a much longer course required or offered when the DVAC assessment indicates a median likelihood for future domestic incidents. It meets once a week for 26 weeks and is designed as a more thorough anger management program.
It stands for Domestic Violence Assessment Center. This is the center located at the Memphis Exchange Club which administers the domestic violence assessment. During this assessment, a participant meets with a social worker who asks questions about past family history and criminal activity. If you are there as a result of an arrest, they should not ask you anything about the incident which gave rise to the arrest. If they do, stop answering questions and report it immediately to your attorney.
If the case is dismissed, yes. If you are found guilty, the current expungement law in Tennessee specifically prohibits the expungement of a conviction for domestic assault, or any assault for that matter. This is another reason why fighting the charge, rather than just pleading out, can make a significant long-term difference.
Keep that evidence, especially if you are charged with stalking or harassment. Your attorney needs to see those text messages. They contain evidence that may be helpful to your defense. Do not delete them.
Unfortunately, it is a common assumption that only defendants lie. The good prosecutors know that, but it is still their job to prosecute cases. If the victim is lying, you need to sit down with our Memphis domestic assault attorneys and discuss your case in detail. Evidence must be obtained which indicates that the victim is being less than truthful.
It works just like any other case in criminal court except that you will likely have the same prosecutor handling the case that handled it in general sessions court. The special prosecution unit prosecutes your case in both courtrooms. Most domestic violence cases settle in general sessions court so the volume of cases in criminal court is far less. Criminal Court 5 is the dedicated domestic violence courtroom.
Call today or contact us online. No commitment required.