WV Criminal Lawyer

Police Misconduct, Civil Rights Law

Tired of domestic violence petitions…

That’s it, I’ve had it. For too long domestic violence protective orders have been abused in West Virginia. The first one to the magistrate court wins, and wins big. They get the house, the kids, the money, the property, etc., for at least 180 days – usually for good since the divorce usually follows.

999 times out of a 1000 these cases are bogus. Everyone, the lawyers, the judges, the cops, know what is going on. They know the system is being abused, yet for some reason the judges refuse to deny these things. The law says that “domestic violence” must be proven by a preponderance of the evidence before they can be granted. Yet, they are routinely granted in every single case – at least where women are the petitioners. All they have to say is that she was “placed in reasonable apprehension of physical harm.” That’s not domestic violence, that’s a scam. One of the only ones I’ve ever seen denied is where the petition was filed against a cop. In that case, since the cop couldn’t work if it was granted, the judge went out of his way to analyze the facts and generously apply the law. But not for you Mr. Joe Blow, your screwed.  You have no rights.  Your lucky you’ll even get to see your children for the weekend two weeks from now.  And don’t even think about complaining or else those visits will be supervised.  What did you do wrong?  Your a man.  

But I have seen one issued against a woman by a man who was allegedly the “victim” of domestic violence. And the man was a police officer.  And what benefit did he receive?  The house, the kids, the personal property.  He knew how to abuse the system.  What a crock….

- John H. Bryan, West Virginia Attorney

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October 30, 2008 - Posted by | Uncategorized

10 Comments »

  1. Do you have any statistics to back up your 999 out of 1000 claim? How about the “for at least 180 days?

    Just wondering.

    Comment by Jim | October 30, 2008 | Reply

    • Yeah I’m a statistic that will back him up!!!!!

      Comment by JROD | August 5, 2012 | Reply

  2. I understand what you are saying, but you come off sounding like ‘forget the women and children who have been harmed and what their rights are.’ I mean get real here. How many cases have gone ignored in the past and then a woman and possibly her children end up dead and it was because of domestic violence? And how many of those cases are the cases that set the stage to put the laws in effect that are in effect now? I understand you are an attorney and you see a plethora of situations, but before you go making general statements think about it. Would you feel the same way if a female in your family was a victim of domestic violence?

    Comment by Taylor | October 31, 2008 | Reply

  3. No, I don’t have any statistics. 999 out of 1000 is obviously an exaggeration. It’s probably about 8 or 9 out of 10 that are bogus. But the legitimate ones are never the issue. Here’s why: the guy gets arrested, he’s in jail, and the dvpo is never contested. He most likely doesn’t show up, or he doesn’t contest it. In cases of physical abuse, of course there should be a protective order. But there is almost always going to be a condition of bail in place with the same conditions. And when there is legitimate abuse or violence, there almost always is going to be evidence of it: pictures, scratches, bruises, black eyes, witnesses, etc. The cases I am talking about, the cases that overwhelm the system, are bogus cases – abuses of the system. These cases are filed for the purpose of gaining advantage at the inception of a divorce or custody battle.

    Regardless, dvpo’s don’t stop the real cases of domestic violence. Look at the shooting in the Charleston Taco Bell. There was a dvpo in place. That didn’t protect that woman one bit. I agree that there should be dvpo’s, but it is wrong to grant them in cases that are not legitimately “domestic violence.” It waters down the system and violates the rights of many, many innocent people – and children – who are ripped away from one of their parents.

    Comment by johnbryanlaw | October 31, 2008 | Reply

  4. I agree. I am a female and got one against me because of a “threat” (if you don’t talk to me, I am going to go off) that I made in an email, which I immediately apologized for in an email that followed for my tone of voice and never actually “went off” on him. There was NEVER any physical attack or any other kind of abuse. Technically, the guy threatened to have me beaten up by an internet girlfriend (yeah, I pick losers), and I just laughed it off. The DVP was strictly for a “cover the a&&” tatic since we were co-workers,and all he had to do was stretch somethings, like multiple phone calls/visits when I was invited, or he called me and show that email..and poof, instant win. He admitted in court and to the dv case coordinator he didn’t want to do it. Well, it stuck anyway. So much for rights and a job.

    Comment by DVP's are scams | October 31, 2008 | Reply

  5. I was wondering if you have had the opportunity yet to cross examine the alleged victim by having an actual hearing without the prosecutor present. Most of the time, the court seems to pass the hearing to trail a pending criminal case. I am thinking about the possibility of using the civil order procedure as a discovery tool for the defense. Depositions, interrogatories, cross-examination hearings without the prosecutor present, I am just thinking?
    Sincerely,
    Glen R. Graham, Tulsa Criminal Lawyer, Tulsa, Oklahoma

    Comment by Glen R. Graham | November 2, 2008 | Reply

  6. Glen,

    You absolutely could use the civil dvpo hearing as a discovery tool. And in cases where criminal charges are actually instituted, the dvpo can be an asset with respect to the defense of a criminal charge. But in those cases, the dvpo petitions are mostly legitimate and well founded.

    Also, the dvpo hearing takes place so quickly, that with respect to indigents, no attorney will have been appointed by the time the hearing takes place. So, usually it will not have been contested, or the person will not show up – likely because he was in jail or otherwise uninterested in the dvpo because there already is a bond condition in place doing substantially the same thing. But, if someone can afford to hire their own attorney, then they can get some valuable information.

    The cases I am irked with are the non-legitimate ones where no criminal charges can be instituted, such as cases where one spouse alleges she was placed in fear during an argument, only to get the other spouse kicked out of the home.

    Comment by johnbryanlaw | November 3, 2008 | Reply

  7. is a dvp considered a fellony?

    Comment by laney | January 1, 2009 | Reply

  8. No, a domestic violence petition is not actually a criminal charge. It is technically a civil matter. However, once the dvpo is in place, then it can very easily lead to criminal charges – which usually are misdemeanors. For instance, if a dvpo has been entered and served on you, and the person who petitioned for the dvpo invites you in and then calls the police, when they arrive, by law they must take you into custody and charge you with a criminal violation of the dvpo merely by virtue of your being in the presence of the person.

    Comment by johnbryanlaw | January 2, 2009 | Reply

  9. I had a dvp taken on me by my x-wife in oct 2011. Sense then she stayed with me months at a time.A COUPLE WEEKS ago she filed a contemt against me beccause i found her with another man and whiped him. Should her dvp have been revoked for her staying with me long periods of time while under a dvpo

    Comment by rolf damron | June 18, 2012 | Reply


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