In California, police can arrest both partners after a domestic violence incident. The law tells officers to try to identify a single dominant aggressor and discourages, but does not forbid, arresting both people. Being arrested is not the same as being charged, and from that point on, each partner’s case, protective order, and legal defense are handled separately.

Why police sometimes arrest both people

California law does not simply tell officers to arrest anyone with probable cause. Agency policies must encourage arrest on probable cause generally, and must require arrest, absent exigent circumstances, when there is probable cause that a protective order was violated (Penal Code section 13701(b)). The same policies must also “discourage, when appropriate, but not prohibit, dual arrests” (Penal Code section 13701(b)).

Officers must make reasonable efforts to identify the dominant aggressor, defined as the most significant aggressor rather than the first one. In deciding who that is, an officer must consider four things: the intent of the law to protect domestic violence victims from continuing abuse, threats creating fear of physical injury, the history of domestic violence between the two people, and whether either person acted in self-defense (Penal Code section 13701(b)). Those factors guide an officer’s arrest decision. They do not decide guilt: if you are charged, the case still turns on the elements of the specific charge and any defenses that apply, including self-defense. See self-defense and defense of others.

Separately, an officer may make a warrantless arrest for a domestic violence assault or battery that happened outside the officer’s presence when the officer has probable cause and arrests as soon as that probable cause arises (Penal Code section 836(d)). If both of you already have protective orders against each other from family court, arrest liability under those orders is limited to whoever the officer reasonably believes is the dominant aggressor (Penal Code section 836(c)(3)).

For these police-response rules, domestic violence means abuse of a current or former spouse, a current or former cohabitant (unrelated adults who have lived together long enough for some permanency of relationship), a current or former dating or engagement partner, or the other parent of the suspect’s child (Penal Code section 13700).

An arrest is not a charging decision

Neither a single arrest nor a dual arrest decides who gets prosecuted. The prosecutor’s office (usually the district attorney), not the arresting officer, decides whether to file charges against one person, both, or neither, based on the evidence gathered (Government Code section 26500). A dual arrest does not mean charges against either person will be dropped, and it does not mean a court will treat either person as the victim. What happens next depends on the specific evidence in your case.

If you believe you were defending yourself, or that you were wrongly identified as the primary aggressor, that is a defense theme discussed in false accusations and domestic violence defenses.

Two cases, two protective orders

Because each partner may be a defendant in one case and the protected person in the other, two separate criminal cases can move forward from the same incident. Each case can carry its own criminal protective order (Penal Code section 136.2(a)(1)), and in a case charged as domestic violence, the court must consider issuing one on its own motion (136.2(e)(1)). A no-contact order generally takes priority in enforcement over other restraining or protective orders, except a more restrictive emergency protective order (136.2(c)). While a protective order is in effect, the restrained partner cannot possess firearms and must give up any firearms already owned (136.2(d)).

The exact rules on contact, including whether any contact is allowed at all, come from the specific order issued in your case, not from a general assumption. Read the actual order, or have your lawyer explain it, rather than guessing. Do not contact the other person in a way the order forbids, even if that person contacts you first or says it is fine. For more on how these orders work, see restraining order defense.

Why each partner needs a separate lawyer

One lawyer generally cannot represent both of you. Under California’s Rules of Professional Conduct, a lawyer may not take on a representation that is directly adverse to another current client unless each client gives informed written consent and further conditions are met. The rule’s commentary adds that direct adversity can arise when a lawyer cross-examines a witness who is the lawyer’s client in another matter, if the questioning is likely to harm or embarrass that client (Rule of Professional Conduct 1.7). Because each of you is a likely witness in the other’s case, each partner needs a separate lawyer looking out for that partner’s own interests.

Family court restraining orders work differently

A criminal protective order comes from the criminal case. A domestic violence restraining order from family court is a separate civil process, and a family court cannot simply issue orders against both of you because you each accused the other. Under Family Code section 6305, a mutual restraining order requires both of you to appear and each file a written application, and the court must find that “both parties acted as a primary aggressor and that neither party acted primarily in self-defense.”

If children are involved, a later court finding that a parent committed domestic violence within the past five years creates a rebuttable presumption against giving that parent sole or joint custody (Family Code section 3044(a)).

What to do after a dual arrest

  • Get your own lawyer. Do not rely on your partner’s lawyer or assume your interests match.
  • Get the actual protective order in your case in writing, and follow it exactly, even if the other person asks you to break it.
  • Do not discuss the incident, or what either of you plans to say, with the other partner. Beyond any order that limits contact, coordinating what either of you will say can raise separate legal risks, including witness-dissuasion concerns.
  • Keep a copy of any citation, case number, or court date you receive. Each partner’s case moves on its own track.
  • If children are involved, ask your lawyer how a domestic violence finding could affect custody.

Next steps

Two arrests from the same incident can lead to two separate, fact-specific cases. The Law Offices of David S. Chesley can review your specific charges, any protective order in your case, and how the dominant-aggressor determination was made. Call (800) 755-5174 to discuss your case.