Combs Waterkotte is Missouri’s leading domestic violence defense law firm in Missouri and has handled over 10,000 successful criminal defense cases. In this interview, criminal defense lawyers Chris Combs and Steve Waterkotte cover multiple commonly asked questions about “Domestic Violence Defense” cases and how we can help you with your domestic violence charge in the state of Missouri.
You can read a transcript of the interview below.
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Everything About Domestic Violence Defense Charges in Missouri: Interview Transcript
Scott Michael Dunn: Welcome back to the Hexxen podcast where we take marketing to the power of X.
Joining us again today [are] Chris Combs and Steve Waterkotte from Combs Waterkotte, a law firm located in Clayton, Missouri.
We’re going to talk today about domestic violence, which is a sensitive subject which I’m sure [is] difficult for a lot of people to even discuss.
In the sense of being on the other side of things, what should I do if I’m accused of domestic violence?
Steve Waterkotte: First thing, if you’re arrested for domestic violence—that’s typically how these things start; a phone call to police by a husband, a wife—do not speak to the police. Do not incriminate yourself. Exercise your Fifth Amendment right, which you have the constitutional right to do.
So, that would be the first step.
The second step would be getting an attorney. Anytime you’re accused of something serious, like this, it would be wise to do both of those: Do not talk to the police, exercise your Fifth Amendment Right, and get an attorney ASAP.
Scott Michael Dunn: Can I be arrested if I’m accused [of] domestic violence without any evidence?
Steve Waterkotte: Yes.
However, in many of these cases, there are no physical markings. If you’re grabbing somebody—choking is a common one—a lot of times, that doesn’t necessarily leave marks.
So, there could be an accusation: “He choked me, she choked me, he shoved me, pushed me up against the wall, he didn’t allow me to leave, he held me against my will.”
All those instances, all those accusations, aren’t allegations that necessarily leave markings, bruising, or things like that. So, it is not uncommon to be arrested for a domestic assault charge without any physical evidence, based solely on the word of the accuser.
Scott Michael Dunn: How do I prove my innocence if I’m accused of domestic violence?
Steve Waterkotte: Well, number one, it needs to be said that you do not have to prove your innocence. The burden of proof always rests entirely on the state of Missouri, specifically the prosecutor. They have to prove that you, in fact, did what you’re accused of beyond a reasonable doubt.
So, the word, the phrase—any defense lawyer will immediately correct this—we have no obligation to prove that our client is innocent. The obligation lies entirely with the state and the prosecutor to prove our client’s guilt beyond a reasonable doubt.
Now, that said, we don’t just sit there on our hands and do nothing. We conduct an investigation. We speak with our client about what took place, what didn’t take place, and what our available defenses are. Is this a self-defense case? A lot of the time, domestic assault cases turn into that. Self-defense can be a viable defense in this area.
We do all those things to help raise reasonable doubt or to aid in securing a better plea offer. Our investigation might include examining text messages, looking for a history of incidents, or reviewing prior calls to the police. There are a number of different things we work on collaboratively with our client to obtain.
Ultimately, we go to the prosecutor and say, “Hold up, this isn’t what it looks like. Let me show you X, Y, and Z,” which might debunk these allegations, refute them, or prove them false.
So, while we never have an obligation to prove our client didn’t do it, we do a lot of investigative work and collaborate with our client to refute the claims. We aim to show that the accusations are false or that the accuser lacks credibility.
Chris Combs: And a lot of this challenging—these [cases] turn on depositions as well, which involve taking the alleged victim’s sworn statement and challenging their truthfulness, veracity, credibility, timeline, et cetera, et cetera.
Scott Michael Dunn: So what are the penalties for domestic violence?
Chris Combs: Well, you’ve got domestic assault fourth, which is a class A misdemeanor, which is an interesting one because the statute just reads, “putting someone in the immediate apprehension of physical harm.” Typically, a shove or a push is going to be involved, but there’s nothing in that law that says you have to touch anyone.
Then it goes up from there to a class E felony, which means that there is some physical injury. Then a D felony, a serious physical injury. Then it gets all the way up to a B felony or an A felony depending on the severity of the injury, among other things.
Steve Waterkotte: So there’s a big range, as you can see, and there’s a lot of discretion.
Police officers make the arrest. They turn it over to a prosecutor who issues charges. So it’s important to know that distinction. Police make arrests, do their investigation. They turn it to a prosecutor.
So if there’s domestic assault one, two, three, and four. That’s a lot, that’s a range. Quite a bit of a range there.
A prosecutor has a lot of discretion in which to charge these. And that’s sometimes our defense: “Hey, this thing was overcharged.” There [are] times in our defenses, “Yeah, our client did it, but this thing’s overcharged. This falls more under domestic assault fourth rather than a third in which you’re charging.”
That’s a big jump because you’re going from fourth as a misdemeanor, and anytime you go jump into the felony, that’s a big, big difference in terms of not only penalties, but background if you take a conviction and things like that.
So, the prosecutor has a lot of discretion at his or her hands when they charge these.
Scott Michael Dunn: How do I get domestic violence charges dropped?
Chris Combs: There’s a number of ways we do that.
A lot of these cases are husband, wives, boyfriends, girlfriends, where it’s one bad night. So there’s times when the alleged victim decides they don’t want to prosecute. We’ll get an Affidavit of non-prosecution, present that to the state, the prosecutor.
[That] doesn’t mean the case is going away. Typically, they’ll see if they can make the case without the alleged victim. Oftentimes we’ll then set it for trial. That is one way we get a lot of these dismissed.
If the alleged victim is full bore wanting to prosecute, that’s when we go back to what Steve said and do a full blown investigation. Who is this alleged victim? What does their history look like?”
And then, depositions challenging them on their version of events. Their truthfulness, things of that nature.
Scott Michael Dunn: So what happens during a domestic violence investigation?
Steve Waterkotte: Police typically show up usually in the immediate aftermath. That’s how these typically begin.
Somebody or neighbor or loved one in the home calls the police. Hey, “Mom and dad are fighting.” “I hear the neighbor fighting,” Things like that. “Please show up.”
You’d be surprised by how often they only take one side of the story. Sometimes it can be a race to who calls and who talks to the police first. Sometimes it’s mutual combat. A mutual fight where both parties are engaged and yet, one may call, and sometimes it can be a race to who paints the narrative first, right?
You’d be surprised by how often they only speak to one party, and if you’re being accused, as I said, it’d be wise not to make a statement.
If you had somebody call, “Steve is hitting me and beating on me,” and they show up, the picture’s already painted, so to speak. At that point, you’re probably not going to do yourself any favors by talking to the police.
“Well, yeah, I did it because of this.” You’ll see things like that. Well, that incriminates you.
If it’s a situation like that, the wise thing to do is not give a statement or answer questions. Again, you’d be surprised by how often police don’t even ask that other side of the story or give that person an opportunity to even allow them to exercise their Fifth Amendment Right.
They take the statement of the accuser. “Okay, that’s enough. Let’s make our arrest. Let’s lock him up or issue him a citation or summons to appear in court.” And off we go.
Scott Michael Dunn: How important is it to hire an attorney when you’re accused of domestic violence?
Chris Combs: As important as any other area of the law.
Domestic violence charges are some of the few you can never get expunged. So it is critical that these are handled properly. Again, they cannot be expunged.
As Steve said, broad discretion by the prosecutor. So you could be looking all the way at an A or B felony down to a misdemeanor.
The connotation, the stigma behind domestic violence and domestic assault, it’s so critical to make every effort to either get the charge amended to something different, and/or a dismissal.
Scott Michael Dunn: And by dismissal, it’s dropping the charges, right?
Steve Waterkotte: Correct.
The prosecutor only has that ability to do that. Nobody else. [The] judge can’t. I should add a limited circumstance after a preliminary hearing or something to that effect.
But by and large, the prosecutor holds that card and only they can file dismissal of the charges.
Scott Michael Dunn: What are my rights if I’m accused of domestic violence?
Steve Waterkotte: Your Fifth Amendment Right. Your right not to talk or answer questions.
Then of course you have a right to an attorney. You have the presumption of innocence. We all have that right in this country. A right to a trial. You have all your constitutional rights come along with it.
The one in this area that’s critical to follow and it’s almost always applicable in these cases is your right against self-incrimination. Your Fifth Amendment Right not to answer questions.
A jury down the road cannot make any inferences based on your decision at the time of the investigation. [If you] say, “Hey, listen, I’m not speaking with you without an attorney. I’m not waving my Miranda rights. I’m not answering your questions,” a jury at a trial cannot hear about that. Therefore, they cannot make any inferences against you for that.
Chris Combs: I think another important thing to note that I see a lot is someone gets arrested for domestic assault, they’re in jail. Who’s the first person they’re going to call? Typically, if they think there’s any way of trying to make things better, they’re calling their accuser, correct?
Well, what they don’t realize is the second they’ve been arrested, there’s a court order of no contact with the alleged victim.
So domestic violence prosecutors love going to the jail calls to see if they’ve tried to persuade this person to drop charges. Here comes another felony, tampering with the witness in a felony prosecution.
And then sometimes I have clients say, “I didn’t know I couldn’t talk to her.” So that’s something I think it’s important to get out there information wise.
Steve Waterkotte: I ditto that. That’s critical.
In St. Louis County they will routinely, on felony domestic assault charges, use their resources, their investigators, and prosecutors themselves will listen to those jail calls, like Chris said.
Because one of the first calls somebody locked up will try—in many cases—is to call their accuser, the alleged victim, to try to get them to dismiss the charges.
And so, it’s critical that folks know that every call in that jail is recorded and listened to—except for calls with your lawyer.
Even I don’t even feel completely comfortable – and I don’t think most lawyers would agree with me here. We don’t ever go into the facts of the case over the phone. I just don’t have that much trust in the government, frankly.
I’ve had a prosecutor say, “I just listened to these calls,” which they’re allowed to do by law. We always tell our clients, “Listen, every call is recorded. Use caution.”
If you want to talk about hiring a lawyer, when your court date is, how’s my baby doing? How’s grandma doing? That’s all fine, but do not get in the facts in the substance of this case over the phone.
I’ve had a prosecutor say “I was listening to calls and I heard them call you. I immediately hung up.” And I trust the prosecutors, the ones in St. Louis County. But I still never get into the facts. We’re never gonna be on a phone call saying, “Let’s walk through what happened.” We’ll do that in person, at the jail if they’re locked up, at the appropriate time.
That is a critical one. As Chris said, know that all those phone calls are recorded and they are listened to. And even in a big county with tons of and tons cases like St. Louis County, they still will use resources, investigators, and prosecutors themselves that will listen to those calls.
Scott Michael Dunn: Wow.
Steve Waterkotte: And you would be surprised by how many times a defendant incriminates themself.
“I didn’t mean to do it. I’ve just got – things got crazy.” That’s incriminating, right? You’re essentially kind of acknowledging your participation, at least to some extent, into this.
Chris Combs: The second you get charged with domestic violence, your accuser, the alleged victim, is going to get a call from the prosecutor. They want them to hang on and to prosecute.
They’re also going to get a call from a victim advocate. They’re gonna be encouraged to file an order of protection, also known as a restraining order in Missouri.
Again, right away there’s gonna be a lot of hands on the alleged victim. This is what you ought to do, this is what you ought to do.
Scott Michael Dunn: Wow.
How about how long does a domestic violence case generally take?
Steve Waterkotte: It depends. Obviously, if you get a domestic assault first degree – the more serious [cases] typically take longer to resolve versus a misdemeanor.
You can ballpark six months minimum to a year and even beyond. I have a couple right now that are approaching a year, domestic assault first degrees.
So, the more serious the case, the longer it’s probably gonna take to resolve. Six months to a year is kind of a ballpark, but certainly [they] can go longer than that, the more serious it is.
Chris Combs: And we never wanna rush a case at the expense of the outcome.
Now of course, if a client is incarcerated, we’re gonna speed things up. But we’ve done so many of these that I’ve only seen things either stay the same or get better with time.
So again, while six to 12 months is a good ballpark, I often tell clients, “Look, I know you don’t want this hanging over your head forever, but the more time that goes on, almost always the better.”
Scott Michael Dunn: Can I be fired based on a domestic violence allegation?
Steve Waterkotte: Yeah, absolutely.
That’s probably more an employment area of law, but most employers are at-will, which means you can be fired for any reason. They don’t like your socks, “Hey, get out of here.”
Scott Michael Dunn: [It’s a] right to work state, yeah.
Steve Waterkotte: Certainly, it’s a stigma too.
This area of law, domestic violence, domestic assaults, probably outside of child sex crimes is probably the biggest stigma. You are an abuser – particularly for a male – you’re hitting a woman. That stigma there is real.
Why would an employer want that person? Whether it’s just an allegation or not, the presumption of innocence and your constitutional rights don’t necessarily flow into your workplace. An allegation alone can be sufficient.
Again, another reason why it’s important to get an attorney who is experienced in this area of law from the jump to put yourself in the best possible position.
Scott Michael Dunn: What do I do about child custody in domestic violence cases?
Steve Waterkotte: Well, that’s typically a family law question. We usually will help navigate that, but at the end of the day we don’t do family law.
How that domestic assault charge could come into effect is through orders of protection, which then can affect your custody rights, right? And then, obviously if you have a divorce pending or it is some sort of custody order, you’ll see the victim file a modification of that based on, “Hey, he’s got a violent history.”
We’ll refer folks to family lawyers that we know and trust. A lot of times we’ll work side by side while they’re handling the family law case, we’re handling the criminal law case.
We want to make sure our client’s supported and has the resources in place for not only the criminal case. Because that’s a major thing. Your rights to your children and how often you can see them or visit them and things like that.
So it’s more of a family law question, although it does kind of have some overlap into our area. We have a handful of family law attorneys that we refer cases to that we know do good work for our clients and we’ll work kind of in conjunction with them. [We] keep each other apprised of what’s going on in each other’s cases to make sure we’re putting our client in the best possible position.
Scott Michael Dunn: What’s the difference between a misdemeanor and a felony in a domestic violence charge?
Chris Combs: We kind of discussed that a little bit earlier, but again, the misdemeanor typically comes with a shove. No injury. For a misdemeanor, you cannot cause injury. The second you cause an injury it is a felony, because the difference between a Class A misdemeanor and a Class C felony is creating a physical injury.
Like I mentioned earlier, although a domestic assault fourth is typically gonna have a shove or something, the way the law reads, [it’s] putting someone in the immediate fear of apprehension of physical harm. So there’s nothing in the law about touching. But again, almost always there’s a shove or something like that.
But then it escalates to a felony if there’s an injury.
Scott Michael Dunn: What should I do if I’m accused of domestic violence?
Steve Waterkotte: Be quiet, exercise your Fifth Amendment Right. Call an attorney ASAP.
Scott Michael Dunn: How should I avoid being accused of domestic violence?
Steve Waterkotte: Well, I don’t know if you ever truly [could].
Common sense says “Hey, remove yourself from situations that could be volatile if you have an argument heating up.” These are kind of common sense approaches to anything really, any kind of conflict, particularly in the domestic where there’s emotions and children perhaps involved. To remove yourself is the best. So don’t put yourself in a position where she is making or he is making an accusation against you.
That said, sometimes that’s impossible. You can’t do it, right? You can’t completely control whether or not somebody’s going to make an accusation, or whether it’s going to be a false one, or an embellished one.
The easiest way, again, is to remove yourself from a volatile situation where you see things are starting to head towards a more hostile, violent, ending.
Scott Michael Dunn: How [do] these kind of overlap with restraining orders, orders of protection, domestic violence. How does that all kind of weave in together?
Steve Waterkotte: Almost every domestic assault case – I say almost – the vast majority I’ll say, will also lead to an order of protection.
Chris Combs: And that’s because of what I said earlier, the first call that the alleged victim’s going to get is from a prosecutor and a victim advocate that’s going to encourage them and walk them through the steps to file an order of protection.
Steve Waterkotte: And likely the police officer on scene also said that same thing.
Chris Combs: So that’s three people.
Steve Waterkotte: “Hey, we’ll do the police report, but you need to file for an order of protection.” Almost every officer is going to broach that subject with them.
So again, almost every domestic assault client of ours, the vast majority of them, also have a pending order of protection case.
Fortunately, we can handle that, both the criminal case and the order of protection case, at Combs Waterkotte.
Scott Michael Dunn: How does this blend in as well with emotional abuse? So domestic violence and there’s no physical contact. Is it domestic violence if it’s emotional abuse?
Steve Waterkotte: That tends to fall more under what we would consider harassment.
That’s an element under the harassment statute, which I guess can be labeled a form of abuse. But the crime in Missouri for emotional distress, substantial emotional distress, is kind of what it’s defined as. So that would be more harassment.
Certainly a form of abuse, but it doesn’t necessarily fall under the domestic abuse statutes first through fourth. [It] falls more under harassment. One of the elements of the harassment statute is it caused somebody emotional distress.
Scott Michael Dunn: What is the impact of domestic violence charges on my record?
Chris Combs: Again, they’re lifelong. It is one of the handful of crimes that—and there’s not a terribly long list—but, domestic violence, there’s a lot of it out there. And we talked about the negative stigma with it, but it’ll follow you around forever. You can’t get the arrest record expunged.
Again, for a dismissal or an amendment to a different [charge], if it’s a domestic assault fourth, we can get it down to a peace disturbance, go back, and get that record expunged.
Any type of guilty plea entered in a domestic case, even if you avoid the conviction, you enter a guilty plea, there’s no going back and getting that expunged.
So, it will hang around for the rest of your life.
Scott Michael Dunn: Can I defend myself against false allegations?
Steve Waterkotte: Absolutely. Absolutely.
Chris Combs: That’s a lot of what we see too.
Steve Waterkotte: That’s what our role is as an attorney. To make sure we’re doing our job, we’re doing a thorough investigation. We’re combing through some potential physical evidence which could come in the form of text messages, recordings.
Those evidentiary issues often present themselves in these cases. Somebody has a recording that could debunk what this complaining witness or accuser is saying. It’s fairly common.
So we’re doing a thorough investigation. We’re collecting and accumulating any kind of physical evidence. A lot of it, like I said, is text messages and recordings. Past history. The alleged victim’s mental health history sometimes comes into play.
We are leaving no stone unturned to make sure we’re presenting our client’s narrative on their behalf to a prosecutor. To show, “Hey, this case isn’t cracked up to what you think it is. There’s much more than the surface level, what this police investigation did.”
Here’s a whole history or here’s the petitioner’s history. Maybe it’s a violent history, a mental health history. Here’s physical evidence that refutes these allegations or shows that these have been embellished.
That’s our job as the attorney, to make sure we’re doing all those things, leaving no stone unturned.
Scott Michael Dunn: So what should I expect in court during a domestic violence case?
Steve Waterkotte: You go to court throughout these proceedings, You have a preliminary hearing. Typically, you don’t in this sense. These cases frequently get sent to a grand jury. If there’s an indictment issued, you go to circuit court and you have a trial.
Typically these are jury-tried cases if you get that far. You have 12 jurors ultimately deciding whether you’re guilty or not guilty.
Questions that we have to sort out amongst our office and with our client is whether our client is going to testify or not. In a case like this, and perhaps if it’s self-defense, we’d almost always have our client testify.
Those are some of the questions that we are figuring out on our end as we’re representing our client along the way. Ultimately, which could end in a trial where 12 jurors are deciding whether our client is guilty or not guilty.
Scott Michael Dunn: As I stated, when we started this conversation, it’s a sensitive subject for many, many, many people on both sides.
These are either falsely alleged, or the recipient of any kind of domestic abuse or harm – it’s the last thing we want anyone to ever have to endure in their lives. I believe that, and I know you guys share that same opinion.
Chris Combs: Of course.
Scott Michael Dunn: It’s important to understand that going at this alone is dangerous. Without an attorney, without protection, without [being] armed with someone who can facilitate through the law to protect you from allegations, let’s say, [that] weren’t true.
Or let’s say you’re the victim, and these allegations that you’re proposing, you need support to protect the interest of those allegations, so that person can never do that again.
It’s really nice to sit down with you guys and discuss more in depth the details of what to do and how to handle situations with regards to domestic violence.
We’ll see you next time with Combs Waterkotte out of Clayton, Missouri.
Thanks, guys, for coming in. We really appreciate it.
Steve Waterkotte: Thank you. Enjoyed it.
Chris Combs: Thank you, sir.
If you need Missouri’s leading criminal defense team to defend your rights and freedom, speak to a criminal defense attorney today at (314) 900-HELP or contact us online for a free case review.
