By Josh Hamilton on
In domestic violence cases, a common misconception persists: that the victim has the power to “drop the charges” at will. While this may be true in civil matters such as restraining orders, criminal prosecution is a state decision. In Arizona, once law enforcement is involved and charges are filed, the case becomes a matter between the State of Arizona and the accused.
If you have been charged with domestic violence in Arizona, do not be complacent even if the victim withdraws the domestic violence complaint. You may still face the full legal consequences with lasting impacts on your life. Consult our proven and capable criminal defense attorneys at the Law Office of Hernandez | Hamilton | Lamoureux P.C. to defend your rights and freedom.
An Arrest is Usually Mandatory in Domestic Violence Cases
Arizona takes domestic violence (DV) extremely seriously. Once police respond to a domestic disturbance and find probable cause, an arrest is typically mandatory under Arizona law. This policy reflects a strong prosecutorial interest in preventing ongoing abuse, even when the alleged victim no longer wants to cooperate.
Can a Victim Drop Charges in Arizona?
Who Controls the Prosecution?
In criminal cases, only the prosecutor, not the victim, has the authority to file or dismiss charges. A victim’s wishes may be considered, but they are not determinative. Once charges are filed, they are brought in the name of the State of Arizona, and the prosecutor becomes the party responsible for pursuing or dismissing the case.
Prosecutorial Discretion
Prosecutors in Arizona may decide to proceed with charges even if the victim:
- Does not want the defendant to be prosecuted.
- Refuses to testify.
- Recants their statements.
This discretion is guided by the public interest, including the protection of the victim, deterrence of future violence, and the integrity of the criminal justice system. Prosecutors are particularly cautious in DV cases because victims may sometimes recant due to fear, intimidation, financial dependence, or emotional conflict.
What Happens When the Victim Doesn’t Want to Cooperate?
Initial Interview and Recantation
If the domestic violence victim doesn’t want to proceed with the charges and informs the police or prosecution about it, that sentiment may be memorialized in the case file, but it does not stop the investigation or prosecution. In fact, recanting a statement made to police may be problematic, especially if the original statement was made under oath or resulted in the arrest of the accused.
Victim Impact and the Role of Victim Advocates
Under the Arizona Victims’ Bill of Rights (A.R.S. § 13-4401 et seq.), victims are granted a host of rights, including:
- Being notified of court proceedings
- Conferring with the prosecutor before a plea bargain is offered
- Making a statement at sentencing
While these rights afford the victim a voice, they do not give them veto power over whether the case moves forward. Domestic violence charges without the victim can still proceed, and the prosecutors may also compel a victim’s testimony even if they are reluctant or hostile.
Can a Domestic Violence Victim Be Forced to Testify in Arizona?
Subpoenas and Court Orders
If the case proceeds to trial and the victim is a key witness, the prosecution may issue a subpoena requiring the victim to testify. If the victim fails to comply, the court may:
- Issue a bench warrant for the victim’s arrest.
- Hold the victim in contempt of court, which can carry fines or even jail time.
This may sound harsh, but it reflects the serious nature of criminal prosecutions and the challenge prosecutors face in DV cases when victims withdraw support.
Material Witness Warrants
In extreme cases, a prosecutor may request a material witness warrant under A.R.S. § 13-4091, allowing for the pre-trial detention of a victim to ensure their appearance at trial. This is rare and controversial, but it is a legal tool available to the prosecution in high-stakes cases, particularly when there is a serious risk of harm to the victim or others if the case collapses.
Exceptions: Spousal Privilege and Limitations
No Blanket Right to Refuse
Many people believe that spouses can “plead the Fifth” or invoke spousal privilege to avoid testifying. Arizona recognizes a limited form of marital privilege under A.R.S. § 13-4062, but with important exceptions:
- Communications privilege: One spouse cannot be compelled to disclose confidential communications made during the marriage.
- Testimonial privilege: In limited cases, a spouse cannot be forced to testify against the other, but this does not apply in DV cases involving a crime committed by one spouse against the other or against a child.
Thus, in domestic violence prosecutions, spousal privilege typically does not apply, and a spouse can be compelled to testify.
The Fifth Amendment
A victim may only invoke the Fifth Amendment right against self-incrimination if testifying would expose them to criminal liability. For instance, if a victim falsely reported a crime or committed assault as well, they may invoke this protection. However, simply not wanting to testify or being emotionally distressed does not qualify.
What If the Victim Lies or Recants?
Recantation Is a Red Flag
When a victim changes their story or recants, prosecutors may treat this as a red flag and not as a reason to drop the case. It may prompt a deeper investigation, a review of 911 calls, police body cam footage, medical records, and witness statements. Arizona prosecutors are trained to identify signs of coercion or manipulation by the defendant, which are common in DV cases.
Potential Criminal Charges for False Statements
Victims who fabricate stories, either initially or in recantation, may expose themselves to criminal liability for false reporting (A.R.S. § 13-2907.01), perjury, or obstruction of justice. That said, prosecutors usually exercise discretion and rarely charge victims unless the false statements caused significant harm or were made maliciously.
Alternative Evidence: Proceeding Without the Victim
Even if the victim refuses to cooperate, Arizona prosecutors can still pursue the case using alternative evidence, such as:
- 911 call recordings
- Body-worn camera footage from responding officers
- Photos of injuries or property damage
- Statements made by the defendant
- Eyewitness testimony from neighbors or children
- Medical reports from hospital staff
This strategy is sometimes referred to as a “evidence-based” or “victimless” prosecution, and it has become more common in Arizona courts over the past decade, especially in serious or repeat-offender cases.
What are the Consequences for the Accused in Arizona?
If convicted of a DV-designated offense in Arizona, the accused faces:
- Jail or prison time, depending on the severity and class of offense
- Mandatory domestic violence counseling
- Loss of firearm rights under federal and state law
- Protective orders, including no-contact orders
- Immigration consequences, including removal proceedings for non-citizens
- Child custody implications, especially in family law disputes
Even if charges are reduced or dismissed, protective orders may remain, and the arrest may still show up in background checks.
Protective Orders: Separate but Related
Orders of Protection
Victims of domestic violence in Arizona can seek a protective order (also called an “Order of Protection”) under A.R.S. § 13-3602. This is a civil matter and is separate from the criminal prosecution. Even if the victim doesn’t want to press charges, the court may still issue or maintain a protective order to restrict the defendant’s contact or behavior.
It is worth noting that only the court can dissolve a protective order. Even if the victim wants contact again, the defendant must seek a formal modification or dismissal of the order. Violating a protective order is also a criminal offense.
Steps Our Arizona Domestic Violence Attorneys Will Take to Defend Your Freedom
If you are facing domestic violence charges in Arizona, your freedom, reputation, and future are at stake. At the Law Office of Hernandez | Hamilton | Lamoureux P.C., we deploy a strategic, relentless, and constitutionally grounded defense to fight for the best possible outcome.
Challenging Illegally Obtained Evidence
We begin by scrutinizing how law enforcement conducted their investigation. If any evidence was obtained in violation of your Fourth or Fifth Amendment rights, such as through an unlawful search, seizure, or custodial interrogation, we will file motions to suppress that evidence and ensure it cannot be used against you in court.
Fighting for Dismissal When Proof Is Lacking
If the prosecution lacks sufficient admissible evidence to support the charges, we will file motions to dismiss. This includes cases where the alleged victim refuses to testify, recants their statement, or when there is no corroborating physical evidence or credible witness testimony.
Negotiating for Diversion or Reduced Charges
In appropriate cases, especially where no prior record exists or the offense is non-violent, we negotiate for entry into diversion programs or advocate for reduced charges that avoid jail time and may result in a case dismissal upon completion.
Filing Motions to Quash or Suppress
We aggressively file motions to quash unlawful subpoenas and suppress unreliable or prejudicial statements. We ensure that nothing entered into the record violates your constitutional rights or prejudices the jury.
Working with Experts and Investigators
Depending on the facts and circumstances of the case, we may engage private investigators, forensic analysts, or digital evidence experts to uncover inconsistencies, false allegations, or exculpatory evidence that undermines the prosecution’s case.
At the Law Office of Hernandez | Hamilton | Lamoureux P.C., our Arizona domestic violence defense lawyers combine a formidable trial legacy of 30 years with vigorous, personalized representation to defend our clients. To schedule your free consultation, call us 24/7 at 520-882-8823 or contact us online.
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