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  • Can the Victim Drop Assault and Battery Charges?

    Posted on by JACK MKHITARIAN

    Assault and batteryAssault and battery take on different meanings depending on where you live in the United States. In New Mexico, assault and battery are two separate offenses.

    Regardless, assault and battery are both very serious charges, and if you are accused of assaulting someone, you may wonder what happens if the alleged victim changes their mind. Will the charges be dropped? Will the prosecution continue anyway?

    Naturally, you should ask an attorney these questions. Only an experienced criminal defense attorney can give you an accurate answer. However, while you wait for your consultation, we will brief you on what you need to know about these severe charges and what happens if the victim changes their story or says that the assault did not occur.

    How Assault and Battery are Defined in Albuquerque

    Assault and battery are two different areas of the law. While they both revolve around physical altercations or bodily harm by one person to another, the charges and punishments differ.

    Assault, under New Mexico statutes, involves offenses like:

    • Attempting to batter another person;
    • Using threats or conduct that makes a victim believe that a physical assault is likely;
    • Using assaulting language to harm a person or threaten their reputation.

    Currently, an assault charge is a petty misdemeanor; therefore, you could face up to $500 in fines and six months in jail. Consequently, you can see that assault is the lesser of the two types of charges unless you are charged with aggravated assault.

    Aggravated assault can include assaulting someone with a deadly weapon, committing an assault while wearing a disguise, or intentionally assaulting someone during another felony (such as burglary).

    If you are charged with aggravated assault, you are no longer facing misdemeanor charges. Instead, you face a fourth-degree felony and could face up to 18 months in prison and $5,000 in fines.

    Battery: The More Serious Assault Charge

    Battery is a very serious charge because instead of threatening or making gestures, you physically assault the person. Assault can involve attempts, while battery cannot. By physically striking another person, you could face a petty misdemeanor, which includes up to $500 in fines and six months in jail. However, aggravated battery is where the charges increase.

    When you commit aggravated battery, which is with a deadly weapon and the intent to harm someone, instead of a fourth-degree felony you now face a third-degree felony, which includes longer prison sentences and harsher fines.

    Can Assault Charges be Dropped?

    To answer this, you must first understand how charges are filed in the first place. Bottom line, while a victim files a complaint, they do not control who the state prosecutes and when.

    How are Criminal Charges Filed?

    Criminal charges are filed against the defendant for criminal actions. The government files the charges; not the victim. When a case is filed by the government, which is the prosecutor who works for the attorney general’s office, there is no way to drop those charges even if the victim changes his or her mind.

    Victims do not have recourse once the charges are filed unless they assist the defense in disproving the allegations. Instead, whether the charges are dropped or not is determined by the prosecuting attorney, and they will only consider the evidence, strength of the evidence, and the likelihood they will succeed before agreeing to drop.

    What if the Victim Refuses to Testify or Say the Assault Happened?

    When a victim changes his or her position, it is dangerous. If they change their original testimony, they may be charged with falsifying a police report. If they have already testified under oath that the defendant assaulted them, then they may face perjury charges, which are very serious. The district attorney may also call them as a hostile witness in court, and the judge may allow for a warrant if the victim refuses to show to the hearing and testify.

    Therefore, not only will it not go in the defendant’s favor, but it may also turn out poorly for the victim. While prosecutors are reluctant to file criminal charges against a victim, they may feel forced to if they have evidence the assault happened and the victim refuses to cooperate.

    Prosecutors are Requested to Drop Charges All the Time

    Even if the victim has a legitimate reason for asking the charges to be dropped, you must realize that prosecutors are contacted by victims a lot and requested to stop the prosecution. Victims might have second thoughts about moving forward, or they feel their safety is at risk and they do not want the perpetrator to hurt them further if they testify.

    Because the case is already initiated, the charges often stick. Instead, it is better to have a defense attorney work with the prosecution to lower the charges or have them dismissed. The victim’s pleas are unlikely to be answered by the prosecution merely because they see the same situation weekly.

    Speak with a Criminal Defense Attorney Today

    If you have been arrested for or accused of domestic violence, it is imperative that you speak with an attorney right away. Contact the defense team from New Mexico Criminal Law Offices now to explore your options.

    You can schedule a free case evaluation at 505-375-4765 or request more information online.