South Carolina Domestic Violence 2^nd Degree- Significant Criminal Charge

If you are facing a DV 2^nd charge you have come to the right place. Our office helps those charged with domestic violence offenses seek reductions, avoiding jail time, lifting no contact orders and contesting charges. Read on to learn more about the law and court procedures applicable to a DV 2^nd charge. When you are ready to get started on your case, we offer free consultations by calling (803) 359-3301. Same day appointments are usually available. 

South Carolina DV 2^nd Degree Criminal Law

DV 2^nd degree does not necessarily mean second offense. A standard domestic violence charge can be enhanced to a 2^nd degree for a variety of reasons. Common reasons include:

• Prior conviction for a domestic violence offense within the last 10 years
• Allegation of trying to take away a phone or someone’s car keys
• Offense committed in the presence of a minor child
• Causing, attempting to cause or threatening to cause possible moderate bodily injury bodily injury 
• Allegation of impeding airflow (such as grabbing someone’s throat)

Domestic Violence 2^nd degree charges are brought pursuant to S.C. Code § 16-25-20(C). The offense of DV 2nd degree was created with the South Carolina Domestic Violence Reform Act of 2015. While this offense is classified as a misdemeanor under South Carolina law, it is prosecuted in General Sessions Court. The maximum penalty is also three years in prison, meaning that for purposes of background checks and other screenings, it will likely be considered a felony. 

Moderate bodily injury is defined by S.C. Code § 16-25-10(4). It includes physical injury that involves prolonged loss of consciousness or that causes temporary or moderate disfigurement or loss of the function of a bodily member or organ or injury that requires medical intervention. Moderate bodily injury does not include minor injuries that require one-time treatment for scratches, bruises, cuts, or other minor injuries that do not require extensive medical care.

Please know that just because we are sharing the maximum penalty does not mean that you will receive any jail or prison time. Most DV 2^nd cases do not result in jail or prison. An arrest is not the same as a conviction in court. Convictions can cause other problems beyond simply the risk of jail or prison time Those issues include loss of the right to possess a firearm, difficulty with employment, housing or other background checks, immigration consequences, and challenges with divorce or custody cases in family court. 

Please read on to learn all possible outcomes of a DV 2^nd case. 

Attorney James Snell has been actively representing clients charged with domestic violence offenses for over 20 years. This includes hundreds of cases involving DV 2^nd allegations. James Snell is the author of Challenging CDV. This book, now in its third edition, is the book written on the topic of defending against South Carolina domestic violence charges. 

We recommend anyone facing a domestic violence charge obtain copy of Challenging CDV. You can order it through Amazon.com, and we also provide free copies to those who have a consultation with our office about their case. 

There is a lot of information about domestic violence cases, defense, possible case outcomes and more on this website and in the book. It is easy to feel confused and overwhelmed. The best first step you can take if you are facing a DV 2^nd or other criminal charge in South Carolina is to reach out to our office for a free consultation. To schedule yours call us at (803) 359-3301.

Domestic Violence 2^nd Degree Case Outcomes

Any domestic violence 2^nd degree case will be resolved in only one of four possible ways. This is not if you hire this office. This is no matter who your lawyer is or what the facts in your case are. It is only possible for any case to be resolved in any one of these ways:

Dismissal- Criminal charges, including domestic violence offenses, can be dismissed or dropped by the government. Domestic violence cases however are subject to no drop policies, and are not dismissed or dropped solely because the alleged victim requests this. In fact, in most DV cases we see the alleged victim does not want to see the case prosecuted (I use the term alleged victim to describe who the government alleges is the victim of the offense). Cases however can be dismissed when there is insufficient evidence for the government to go forward, however this normally only occurs when the defendant has first rejected all other offers.

When we are retained on a DV case and the alleged victim is requesting the charges be dismissed, we assist in documenting that request in writing for preservation and presentation to the prosecutor. 

A dismissal is the most favorable outcome possible. No lawyer can ever promise or guarantee you that your DV 2^nd or other criminal case will be dismissed. While every client wants their case to be dismissed, we can promise that if your case is not resolved in a way you agree with, we will not hesitate to fight it in court for you. 

Pre-Trial Intervention (PTI)- Domestic Violence charges in South Carolina can be referred to the PTI program. This is a diversion program, which means it is an out of court resolution for the charge. You do not have to admit any guilt and are not found guilty by the court as part of PTI. You are only allowed to participate in PTI once in your lifetime. If you successfully complete PTI the DV charge is dismissed, and you can have the arrest and case history erased from your public government record. To enroll in PTI both you and the prosecutor must agree. PTI will require completion of a 28-week counseling program, passing drug testing, and payment of program fees. 

Plea- Individuals charged with DV 2^nd can choose to resolve their case by plea. This involves going before a judge and either pleading guilty or no-contest (with approval from the court), to the DV 2^nd offense. There is also the possibility of a plea bargain in which the prosecutor agrees to reduce the severity of the charge or enter into a sentencing agreement as part of the plea. This could be to reduce the charge to a lesser-offense (such as DV 3^rd degree), or an agreement that the sentence will not involve jail or prison time. These outcomes may include a time-served sentence (no jail or fine), requirement to complete counseling, or some term of probation. We do not ever recommend anyone consider a plea without fully exploring the possibilities of dismissal, PTI or trial. 

Trial- Anyone charged with domestic violence, including DV 2^nd, can resolve their case by trial. A trial is the only option in which you can plead “not guilty” and require the government to actually prove you are guilty. DV 2^nd offenses are tried in General Sessions court, and you are entitled to a jury of 12. To be convicted all 12 members of the jury must determine you are guilty beyond a reasonable doubt. The outcome of a trial can be guilty or not guilty.  Significantly more DV 2^nd degree cases are resolved by dismissal, PTI or plea than go to trial. However, trial is an important option and should be considered by anyone charged with DV 2^nd, especially if the case is based on false or unfair allegations.

You may also be wondering how long a DV 2^nd case takes to resolve? While everyone wants their case over quickly, because these are prosecuted in General Sessions there is a formal process involved. Cases that are resolved by dismissal, PTI or a plea agreement will be resolve the fastest, possibility in 2-6 months. Cases that are going to go to trial can take significantly longer to be reached by the court.  There is no definite answer at the onset of any case. 

Defenses to DV 2^nd

Just because you were arrested for DV 2^nd, does not mean that you must be guilty or that you will be convicted by the court. There can be a variety of types of defenses that can be raised. This is only a partial listing:

Insufficient Evidence- In a criminal case the government has the exclusive burden of proof. The defendant does not have to prove anything, including their own innocence. The most fundamental defense is simply that the evidence is insufficient to establish someone’s guilt.

Self Defense- The South Carolina Supreme Court has confirmed that self defense is available for those charged with domestic violence. Self Defense is not a a defense of “nothing happened.” Instead, it is an argument that while there was affirmative conduct by the defendant, it was in response to conduct of the alleged victim, and as such the defendant’s conduct was non-criminal. When self defense is raised in a trial, the judge will instruct the jury that the government must disprove this theory beyond a reasonable doubt. 

Mistaken witness – Some DV 2^nd cases are made because of an allegation made by someone other than the alleged victim. Perhaps a neighbor overheard an argument and mistook what was said. Perhaps someone saw an interaction and misunderstood what they had seen. When a witness is mistaken, it does not necessarily mean that they are intentionally lying (although this does happen too), just that what they perceive is not the reality of the situation. 

Accident - In many DV 2^nd cases an arrest occurs after someone called law enforcement due to an argument. Police may arrest someone if they find that there was any physical contact between them. If there was contact, but it was not intentional, this would not be a crime. For example, if someone accidently bumps into someone else this is not an assault or domestic violence crime. We have seen many situations that this defense could apply, including situations involving a door opening, or someone getting struck while gesturing. 

False allegations - Arrests can happen as a result of false or exaggerated statements made to police. Many times police respond to an argument where one or both sides is emotional, intoxicated, or both. When false allegations are given to police, it can result in a criminal arrest. Simply put, the state’s entire case would be based on a lie. 

It is important to understand the difference between a defense and mitigation. A defense is a reason why someone is not guilty of the offense. Mitigation are reasons why a prosecutor or judge should be more favorable for you. For example, challenging the sufficiency of evidence or lack of police investigation is a defense. Discussing that you have never been arrested before, your spouse wants the charges dropped, or the case creates a significant hardship on your family is mitigation. Both have their place in a criminal case, and one or both is usually necessary to achieve a more favorable outcome. 

Keep in mind that while the police may have made an arrest, in most situations the police don’t claim to actually see what actually occurred and have no firsthand knowledge of whether a crime did or did not occur. 

If your case is dismissed by the government, you successfully complete PTI, or you are found not guilty after a trial, you will be eligible for an expungement. This will remove any publicly available government record of your case. We assist with obtaining expungements for our eligible client. 

DV 2^nd First Appearance vs. Preliminary Hearing

DV 2^nd degree is prosecuted in General Sessions Court. This is the higher-level criminal court that also handles cases like murder, drug trafficking, or armed robbery.  Most DV 2^nd degree cases are prosecuted by the local Solicitor’s office. Solicitor is the South Carolina term for district attorney. 

When you are arrested, you will first go to bond court. This is held at the jail, and a magistrate judge will review legal rights with you. The judge will assign an initial appearance date in General Sessions. This is usually a month (give or take), after your arrest. An initial appearance is not a trial. There is no judge, and no opportunity to explain yourself or challenge the evidence. Instead, it is a check-in with the Solicitor’s office. 

When we are retained for a DV 2^nd case we can request our client be excused from the initial appearance 

Many people confuse this initial appearance with a preliminary hearing. A preliminary is an optional hearing that you (or your lawyer) must ask for within 10 days of bond court. A preliminary hearing is not a trial, instead it is an opportunity for a police officer to explain to a magistrate judge what the accusation is against you. Preliminary hearings are normally held in 1-5 months after request (timelines vary substantially depending on what police department charged you). After the judge hears from the officer, they will determine if that story possibly could be a DV 2^nd. The prosecutor for your case is normally not in attendance. The defense does not present its own evidence. A preliminary hearing is not the same (and is not close) to a trial. 

While it is a good idea to request a preliminary hearing, under South Carolina law you are not actually entitled to receive the hearing. On a DV 2^nd case, if the prosecutor presents the case to the county grant jury before the court conducts the preliminary hearing, it will cancel the eligibility for the hearing. 

No Contact Bond Restrictions and GPS Monitoring

Many DV 2^nd charges include a bond restriction prohibiting contact between the defendant and alleged victim. When applicable, this is usually imposed by the bond court as a condition of release from the jail. No contact restrictions do not prohibit the alleged victim from reaching out to the defendant, but do prohibit the defendant from allowing or participating in any contact.

If a no contact bond applies in your case we would encourage you to take those terms seriously. A violation can result in you being sent back to jail, except this time it may be weeks or months until you can ask for a 2^nd chance. 

When we have a case with a no contact restriction, and the alleged victim wants contact, we an assist by filing a motion with the court asking to remove this restriction. 

Another possible bond condition which can be problematic is GPS monitoring. The bond court can require a defendant wear, and pay for, an electronic GPS monitor as a condition of release. We can also file a motion to ask the court to remove this restriction.

Defense Oriented Investigation

When you are arrested for DV 2^nd it is based on the investigation, or lack thereof, by law enforcement. We frequently employee a defense investigator who can assist your case by reviewing evidence and interviewing any potential witnesses.  For example, the investigator can assist in interviewing the alleged victim and obtaining a statement requesting the dismissal of your case or to remove or modify no contact provisions.

What to Bring To Your First Meeting With Us

We offer free consultations for those charged with DV 2^nd or other criminal offenses. When possible, we recommend you bring a copy of your paperwork you received in bond court. This normally will include your bond form (documenting any restrictions), as well as the ticket or warrant resulting in your arrest.

Contact us to schedule your consultation or call us at (803) 359-3301. Same day appointments are usually available. We represent clients facing charges in Lexington, Columbia and elsewhere in South Carolina.