As criminal defense attorneys in NYC, we hear this question from people we speak to almost daily. It is very common that couples or family members are drinking or getting on each other’s nerves and one of them or a neighbor decides to call the police. Often, people explain that they did not want the police to make an arrest, but instead wanted the police to either escort the other person out of the house to cool off, or to scare them so that they would calm down or stop drinking or using drugs. But, instead, the police chose to make an arrest or take a report and now there is a warrant out for their significant other/ family member. The next question is “can I drop it?” The short answer is it depends on what you have already said to the police at the point you change your mind/ what you have already signed. Before you make any decisions, it is important to speak with an experienced domestic violence lawyer.
When the police are called to a domestic disturbance, the general policy is that they have to arrest whoever they deem to be the initial aggressor. Years ago, the police would get called to houses for domestic violence complaints and oftentimes, by the time they came, people would calm down and say they don’t want anyone arrested. The police would leave and then people would start arguing and drinking again and people got killed or seriously hurt in several instances. They then would sue the City for the police not doing their jobs and that is how some of these policies developed. The NYPD has certain policies in place to make sure that certain domestic disputes are prosecuted and orders of protection are put in place to separate people to keep them from hurting each other and then suing the City.
So, when you call the cops because your girlfriend is drunk and smacks you and will not calm down, they come to the scene, separate both parties and ask them what happened. They will then ask you to sign what is called a DIR or Domestic Incident Report made up of several yellow and pink pieces of paper. They may ask you to write out what happened on one of those pages and then write it out in their own words and then ask you to sign it. Be careful and mindful of the fact that what you are signing is being signed under penalty of perjury. Read it over before signing it.
Often, people will either tell me that they didn’t read what the office wrote and it was wrong or that they told the officer that they didn’t want their girlfriend/ boyfriend, etc arrested, but the officer told them that if they wrote out what happened and signed it, then they would let them go. WRONG. If you do not want anyone arrested, you should not write out or sign a DIR because if you do, and the allegations make out a crime, then there will be an arrest made.
So, can you stop an arrest from happening after calling the police for a domestic violence allegation?
It largely depends on the allegations and when you are trying to stop the arrest. If you called 911 and said something along the lines of please send the police my husband is out of control and nothing specific about what happened and then the police come and you do not cooperate with the investigation or tell them to leave, then it is likely yes, no arrest will be made.
If you call the police and say, my husband, named John, smacked me around and I’m bleeding from the lip and missing a tooth, please send the police, then the police will likely make an arrest even if you do not want to cooperate because they may have enough probable cause from the 911 call and possibly seeing you injured or other witness statements.
When the police arrive on the scene, you must understand that the more you cooperate with the investigation, the more likely an arrest is going to be made. The police are not there to sort out domestic disputes or calm people down, if the things you explain happened to make out a crime, they are making an arrest or issuing an icard to arrest the person upon police contact. For example, if you say “John smacked me in the face and threatened me with a knife, and my 5-year-old was in the room at the time, but John is a good guy, he was just drunk and he pays all the bills, etc…I just wanted you guys to come to scare him or sober him up,” John is either getting arrested on the scene or they are issuing an icard for his arrest upon contact with the police.
In that scenario, John would likely be charged with misdemeanor domestic violence charges of Assault in the third degree, Menacing in the second degree, endangering the welfare of a child, as well as others and full orders of protection would be ordered by the Court on behalf of the wife and the child in the room.
ACS would likely be called by the cops and ACS may file a neglect petition against John causing him to also have to appear in Family Court for subjecting the child to witnessing domestic violence.
If John had left the scene and you signed the DIR, then changed your mind before he was arrested, you would not be able to stop the arrest from taking place. It is important to remember that it is not you v. him, it is the People of the State of New York that prosecutes defendants, and the decisions regarding charges are made by the prosecutors that work in the country of the occurrence.