Arrested for Domestic Violence but Not Charged? Understand Your Rights and Next Steps

The legal implications of being arrested but not charged and how to fix it.

When you are arrested for domestic violence but not charged, there are still legal implications. If you’re a substitute teacher or someone who works with children, they will be notified. Moreover, once you’re arrested and booked into jail, you have an arrest record. This remains true whether or not the decision to arrest you was correct. In essence, there are negative consequences to being arrested. However, it’s essential for the arrested individual to understand that the arrest is not the end. It doesn’t have to remain on their record. In fact, there are ways to seal a domestic violence charge through Penal Code Section 851.91.

Arrested for domestic violence but not charged: A Brief Overview

Domestic violence happens more often than not. Almost everyone has been in a heated conversation at some point. Many people have been arrested for domestic violence and have faced court. Similarly, many have been arrested for domestic violence but not charged, and the case either got delayed or was sent back for further investigation. This means that the Orange County District Attorney decided not to file the case and prosecute it and you will not have a case on calendar at arraignment. However, despite them not prosecuting, a misconception exists that the record disappears. In reality, after an arrest, a record remains.

No Charges Filed at Arraignment

This is often given to people who were arrested for domestic violence but not charged. The paper indicates that either their case has not arrived at the DA’s office, it is still being reviewed, or it was sent back for further investigation. It is important that you stop by the DA’s office to collect this paperwork as proof that you showed up to court.

Grounds for Arrest in Domestic Violence Cases

The grounds for an arrest in a domestic violence case is probable cause. This means they don’t need to prove beyond a reasonable doubt that you committed a crime, only that you likely did something. Even if this isn’t the case, a police officer may use their discretion to make an arrest to calm the situation. They might do this by asserting there’s an immediate threat of physical harm. After this decision, they will choose someone to arrest. Post-arrest, the officer may have witness statements and claims that they omitted from the report. This is why audio and video evidence is crucial. Hidden witness statements and claims can completely change the trajectory of a case.

Factors Leading to No Charges After an Arrest

There are several reasons a prosecutor might choose not to proceed with a domestic violence charge. Many of these reasons boil down to one primary factor: the prosecutor doesn’t have enough evidence to move forward. This could be due to the alleged victim’s reluctance to press charges, meaning the victim has recanted their story. Inconsistent witness statements can also be a factor, where the statements don’t align with the officer’s observations or previous statements from the same witness. These inconsistencies can portray someone as untruthful, leading to prosecutorial discretion being exercised. This discretion might result in a case being deemed unprovable beyond a reasonable doubt.

Rights of the Individual who was arrested for domestic violence but not charged

If you are arrested for domestic violence but not charged , it’s still wise to know your rights as an arrested individual. In cases where a domestic violence arrest occurs without charges, it might mean further investigation is required. If the police return for more statements, it’s crucial to remember your right to remain silent and avoid self-incrimination. Additionally, exercise your 6th Amendment right to legal counsel, preventing further questioning.

Navigating the Aftermath

There are collateral consequences to being arrested for domestic violence. Even if you aren’t charged, potential repercussions can affect you. You might face civil actions or restraining orders even without formal charges. If you’re in a custody battle and have been arrested for domestic violence without charges, it’s imperative to seek legal consultation. The arrest alone can be used against you in custody proceedings.

Tips for Those Arrested but Not Charged

If you’ve been arrested for domestic violence but not charged, it’s crucial to take the right steps. First, document all interactions related to the case. This includes a timeline of the events leading to the arrest. Additionally, surround yourself with a support system. Keeping a clear head during potential court proceedings is vital, and having the right people around can guide you through the complexities of criminal or family courts.


Being arrested for a domestic violence charge but not being charged isn’t straightforward. There are still repercussions to navigate. Prejudice can persist even if no charges are filed. If this has happened to you, it’s crucial to be aware of your rights and available recourse, such as Penal Code section 851.91. If you’ve been arrested, it’s essential to be informed and seek legal guidance to potentially erase your arrest record. This serves as a recap of the complexities surrounding domestic violence arrests without charges and an encouragement for individuals to be informed and seek legal guidance.

What’s the process to seal my arrest record, and how long does it typically take?

The process to seal an arrest record is governed by Penal Code 851.91 or Penal Code 851.81. Each one operates differently depending on the scenario. However, for individuals who were arrested for domestic violence but not charged, the appropriate method to seal an arrest record would be under Penal Code Section 851.91. This seals the arrest so that it is not visible.

Are there any specific eligibility criteria I need to meet in order to seal my record?

Yes, there are specific eligibility criteria you need to meet to have your records sealed. If it was a misdemeanor domestic violence arrest where you were not charged, then you have to wait for one year. On the other hand, if it was a felony, then you could wait for three years. An important distinction is whether or not there was great bodily injury. If there was, it may be three years. However, if there was only a mark or some soft tissue damage, then it would be treated as a misdemeanor. Moreover, this should not have been a recurrent pattern.

How will sealing my record affect my future, particularly regarding employment and housing opportunities?

Sealing an arrest would benefit your employment opportunities as employers will not be able to learn about your arrest.

Will a sealed record still be visible to certain entities or for specific purposes, such as background checks for specific professions or government jobs?

When you seal a record, there are still agencies that can view it. For instance, law enforcement will still have access to your arrest. However, no other entities would have access.

Are there any potential complications or reasons my request to seal my record might be denied?

Yes, there are potential complications and reasons why your sealing request may be denied. Some of these include if this wasn’t your first offense and you have had a pattern of being arrested for domestic violence. Another reason could be that the District Attorney is reserving this for the possibility of filing it as a felony. If this is the case, then they need to be persuaded, or you’ll have to wait three years, which is the statute of limitations for felony domestic violence.

How much will the entire process cost, including attorney fees and any other potential expenses?

For potential expenses, attorney fees, and the entire process, you should expect to spend about $1200 to $1500 to seal your arrest.

What information and documentation will you need from me to begin the process of sealing my record?

If you want to initiate the process of sealing your arrest, it’s essential to gather your documentation. First, obtain your bail paperwork and your citation to appear. With these two items, your attorney should be able to determine what occurred and start working on the petition to seal your domestic violence case.

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