If your husband or wife tells the prosecutor they do not want to press domestic violence charges, that can help, but it does not automatically end the case. Once a criminal complaint is filed, the State of New Jersey, not the alleged victim, decides whether the prosecution will continue.
A recent simple assault case handled by our Bergen County criminal defense firm shows how this works in practice.
A Weeknight Argument Leads to a Simple Assault Arrest
Our client was a 45-year-old dental hygienist who lived with her husband and their two children in northern Bergen County. The couple had been married for 11 years, and she had never been arrested before.
One weeknight, they began arguing about their plans for the weekend. Another couple had invited them to go away and she wanted to say yes. Her husband, however, did not want to leave home and preferred to stay home with their children and relax.
The disagreement became heated. Her husband later told police that his wife was yelling, screaming profanities and acting aggressively, so he decided to walk away.
She did not want him to leave in the middle of the conversation and grabbed his arm.
Her husband turned toward her as if he were going to push her away. She ran from him instead and called the police.
She did not expect that she would be the person arrested.
Can You Be Arrested for Domestic Violence If You Called the Police?
Yes. Calling 911 does not determine who the police will charge.
When officers respond to a domestic violence call, they investigate what happened based on what they observe and what each person tells them.
In this case, police arrived at approximately 7:30 p.m. and spoke separately with the husband and wife. Their two children were upstairs, and a neighbor came over to stay with them while police investigated.
The officers observed red marks on the husband’s arm.
Our client acknowledged grabbing him but explained that she had not intended to hurt him. She said she grabbed his arm because she did not want him to walk away while they were in the middle of an argument.
Her husband told police that they had been arguing and his wife was getting out of hand, but that he did not want her arrested.
Nevertheless, based on the visible marks and the circumstances reported to them, the officers advised the couple that they were making an arrest under New Jersey’s domestic violence arrest procedures.
Our client was charged with one count of simple assault, NJSA 2C:12-1.
She was taken to the police station, fingerprinted and photographed. Because she was charged on a complaint-summons rather than a complaint-warrant, she was released and given a date to appear in municipal court.
Police also advised her husband that he could apply for a temporary restraining order (TRO). He declined. He did not want a restraining order, and he did not want his wife prosecuted.
Can a Spouse Drop Domestic Violence Charges in NJ?
No. A husband, wife, boyfriend or girlfriend cannot simply “drop” a criminal charge after an arrest.
This was difficult for our client to understand. Her husband did not want her arrested. He had declined to seek a restraining order. He was willing to tell the prosecutor that he did not want the case to continue.
Why wasn’t that enough?
Because the criminal case was not Husband v. Wife. It was the State of New Jersey v. our client.
Once the simple assault complaint was filed, the prosecutor had authority over the prosecution. The husband’s position was important, but it was only one factor the prosecutor would consider.
Her Biggest Concern Was a Criminal Record
Our client had never been arrested before. Prior to this incident, she had been considering looking for a new job.
Her primary concern was not going to jail.
Simple assault is ordinarily a disorderly persons offense in New Jersey and can carry up to six months in jail. Based on our client’s lack of any prior criminal history and the circumstances of this case, we explained at our first meeting that incarceration was not a realistic concern for her.
A criminal conviction was.
She was worried about having a criminal record and what a simple assault conviction could mean when applying for a new professional position.
She kept asking the same understandable question:
“If my husband doesn’t want to prosecute, why can’t the prosecutor just dismiss the case?”
What Happens If the Alleged Victim Doesn’t Want to Prosecute?
Our client’s husband contacted our office and confirmed that he did not want to cooperate with a prosecution.
He then appeared in municipal court on the scheduled court date and personally told the prosecutor that he did not want to press charges against his wife.
The prosecutor did not immediately dismiss the case.
Instead, the prosecutor asked him a series of questions. Did he feel safe? Was anyone pressuring him to ask for a dismissal? Had his wife threatened or coerced him? Was he making the request voluntarily?
He confirmed that he felt safe and that nobody was pressuring him. He simply did not want his wife prosecuted. He felt this was a personal matter and did not want a court involved.
The prosecutor still was not prepared to dismiss the charge that day.
Instead, the case was adjourned for approximately three months.
Will Domestic Violence Charges Be Dismissed If the Victim Won’t Cooperate?
Sometimes, but not automatically.
An alleged victim’s unwillingness to cooperate can be important, but a prosecutor does not have to dismiss a domestic violence charge simply because the person does not want to proceed.
The prosecutor may look at the other evidence available and the circumstances surrounding the case. The State may also want to make sure the alleged victim’s request is voluntary and is not the result of fear, pressure or coercion.
In our client’s case, the prosecutor considered the circumstances of the incident, her lack of any criminal history, her husband’s position and safety, and whether there were any additional domestic violence incidents while the case remained pending.
That is why the prosecutor decided to wait before making a final decision.
The Result: Simple Assault Charge Dismissed
During the three-month adjournment, there were no new domestic violence incidents.
Our client’s husband remained consistent that he did not want to prosecute.
We had multiple conversations concerning the charge, our client’s background and the husband’s position.
After approximately three months, the simple assault charge was dismissed.
For our client, that was the result that mattered. An ordinary weeknight argument had resulted in an arrest, fingerprints, photographs and a criminal charge at a time when she was considering changing jobs.
She avoided the criminal conviction she had feared from the beginning.
Does It Help If My Spouse Wants the Charges Dismissed?
Yes. An alleged victim’s position can matter significantly in deciding how a domestic violence case is resolved.
But there is an important difference between the alleged victim’s wishes being important and being controlling.
A prosecutor may ultimately agree to dismiss a simple assault or other domestic violence charge when the alleged victim does not want to proceed and the surrounding circumstances support that result. In other cases, the State may decide to continue the prosecution.
Every case depends on its own facts.
A person charged with domestic violence in New Jersey should therefore not assume the case is over simply because a husband, wife, boyfriend or girlfriend says they do not want to press charges.
It is also important not to pressure an alleged victim to change a statement or ask someone to tell the prosecutor that nothing happened. If a restraining order or no-contact order exists, contacting the alleged victim can create additional legal problems.
Frequently Asked Questions About NJ Domestic Violence Charges
Can I be arrested if I was the person who called 911?
Yes. Calling the police does not determine who will be arrested. Officers responding to a domestic violence incident will investigate what occurred and determine whether there is a basis to make an arrest. In our client’s case, she called the police but was ultimately charged with simple assault.
Can my husband or wife refuse to cooperate with the prosecutor?
An alleged victim can tell the prosecutor that they do not want the case to proceed, but that does not necessarily end the prosecution. Whether the State can or will continue without that person’s voluntary cooperation depends on the evidence and circumstances of the particular case.
Will a dismissed simple assault charge still appear on my record?
An arrest and criminal charge can create records even when the case is ultimately dismissed. Depending on the circumstances, a person whose charges have been dismissed may be eligible to have records relating to the arrest and charge expunged. A New Jersey criminal defense attorney can determine whether an expungement is necessary and available.