Can You Ask for a Continuance for Dismissal for a Domestic Charge

This is, without a doubt, one of the most common questions I get from clients, especially if the client is accused of Domestic Violence and is charged with a Domestic Battery. Most of my clients appear for their first Court date only to be disappointed when the Judge continues their case and tells them to come back with a lawyer. Because a Domestic Battery is a Class A Misdemeanor that carries up to one year in jail, the question is not if you need a lawyer, but whether you will have a Public Defender represent you or whether you will have your own lawyer represent you. This will depend on whether the Court determines that you have the ability to afford to hire your own lawyer. If the Judge determines that you do not have the money to hire a lawyer, the Judge will appoint a Public Defender to represent you.

The decision about whether Domestic Battery criminal charges will be filed against you are not made by the victim. If you are facing a misdemeanor, the police will decide whether criminal charges will be filed. The police will make their decision based on the evidence, the facts and circumstances of the case, and the wishes of the Complaining Witness, or victim. Criminal charges for a Domestic Battery will not be filed because the victim insists that charges be filed. Criminal charges for a Domestic Battery will not be filed because the Complaining Witness insists that charges not be filed. The same holds true once the case goes to Court. While the victim's wishes are always taken into consideration, since the victim did not file the charges, the victim cannot dismiss the criminal charges. The criminal charges can only be dismissed by the party that filed the criminal charges. If you are facing a felony, the decision to file criminal charges was made by the prosecutor's office who reviewed the evidence and made the decision about whether to file criminal charges and what criminal charges to file.

In order to be convicted of any criminal charges, including a Domestic Battery, the prosecution must prove each and every element of the offense beyond a reasonable doubt. Prosecutors evaluate every case based on whether they believe that they will be able to prove their case beyond a reasonable doubt in Court. When prosecutors are prosecuting someone for a Domestic Battery, it is common for a Complaining Witness, or victim, to not show up to Court. When that happens, prosecutors will evaluate their case and determine whether they will have enough evidence to prove you guilty beyond a reasonable doubt without the cooperation, and testimony, of the victim. While not having a testimony of the victim usually means that that the prosecutor will not be able to prove their case beyond a reasonable doubt, that is not always the case. There's more than one way for a prosecutor to prove their case. If you made a statement to the police, prosecutors may be able to admit it into evidence. If there were witnesses to the incident, prosecutors may be able to prove their case with the witnesses. If you made a statement that falls under one of the hearsay exemptions, that statement may be used against you in court to help prove the state's case.

There's a difference between the way criminal cases, especially Domestic Battery cases, are handled County to County, Courthouse to Courthouse, Courtroom to Courtroom. Generally speaking, if a victim does not appear in Court for a Domestic Battery in a Courthouse or a County that is especially busy with criminal cases, the more likely it is that the prosecutors will drop and dismiss the case if the complaining witness does not appear in Court. The decision about whether a Domestic Battery will be dropped and dismissed cannot be made by the Judge. However, the Judge can have great influence on whether the case will be dropped and dismissed or whether it will continue. If the prosecutor asks to continue a case when the complaining witness, or victim, does not appear in Court, the decision on whether to grant a continuance rests with the Judge. If the Judge does not grant the continuance and the prosecutor needs the victim to prove their case, the prosecutor will have no choice but to drop and dismiss the case.

If you are charged with a Domestic Battery, it is very important that you talk to a criminal defense attorney that is experienced with Domestic Battery cases, and is familiar with the particular courthouse and courtroom that your case will be in. You do not want to hire a lawyer that does not handle Domestic Battery cases or is not a regular in the courthouse and the courtroom that your case will be in. Whether your Domestic Battery case will be dismissed will depend on a variety of factors that the right lawyer will be aware of and know how to respond to.

James Dimeas is a nationally-recognized, award-winning, criminal defense lawyer, with over 28-years of experience handling Domestic Battery cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a "Top 100 Criminal Defense Lawyer in the State of Illinois for the Years 2018, 2019, 2020, and 2021" by the American Society of Legal Advocates. James Dimeas was named a "Best DUI Attorney", a "Best DUI Lawyer in Schaumburg", and a "Best Criminal Defense Lawyer in Chicago" by Expertise. James Dimeas was named a "Top 100 Criminal Defense Trial Lawyer" by the National Trial Lawyers. The National Academy of Criminal Defense Attorneys gave James Dimeas the "Top 10 Attorney Award for the State of Illinois". James Dimeas is rated 'Superb' by AVVO, 10 out of 10, the highest rating possible for any Domestic Battery attorney in the United States. The American Society of Criminal Law Attorneys named James Dimeas a "10 Best Attorney for Client Satisfaction". Attorney and Practice Magazine gave James Dimeas the "Top 10 Criminal Defense Attorney Award for Illinois".

If you are charged with a domestic battery, you can contact James Dimeas anytime for a free and confidential consultation. To speak to James Dimeas personally, you can call him at 847-807-7405.

Additional Blogs:

Do I Need a Lawyer if I am Innocent?, by James G. Dimeas, Chicago Criminal Lawyer Blog, May 12, 2021.

Can I Be Forced To Testify At My Trial?, by James G. Dimeas, Chicago Criminal Lawyer Blog, February 5, 2021.

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