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Articles Posted in Domestic Battery/Domestic Violence

Domestic-BatteryThis is, without a doubt, one of the most common questions I get from clients, especially if the client is accused of Domestic Violence and is charged with a Domestic Battery. Most of my clients appear for their first Court date only to be disappointed when the Judge continues their case and tells them to come back with a lawyer. Because a Domestic Battery is a Class A Misdemeanor that carries up to one year in jail, the question is not if you need a lawyer, but whether you will have a Public Defender represent you or whether you will have your own lawyer represent you. This will depend on whether the Court determines that you have the ability to afford to hire your own lawyer. If the Judge determines that you do not have the money to hire a lawyer, the Judge will appoint a Public Defender to represent you.

The decision about whether Domestic Battery criminal charges will be filed against you are not made by the victim. If you are facing a misdemeanor, the police will decide whether criminal charges will be filed. The police will make their decision based on the evidence, the facts and circumstances of the case, and the wishes of the Complaining Witness, or victim. Criminal charges for a Domestic Battery will not be filed because the victim insists that charges be filed. Criminal charges for a Domestic Battery will not be filed because the Complaining Witness insists that charges not be filed. The same holds true once the case goes to Court. While the victim’s wishes are always taken into consideration, since the victim did not file the charges, the victim cannot dismiss the criminal charges. The criminal charges can only be dismissed by the party that filed the criminal charges. If you are facing a felony, the decision to file criminal charges was made by the prosecutor’s office who reviewed the evidence and made the decision about whether to file criminal charges and what criminal charges to file.

In order to be convicted of any criminal charges, including a Domestic Battery, the prosecution must prove each and every element of the offense beyond a reasonable doubt. Prosecutors evaluate every case based on whether they believe that they will be able to prove their case beyond a reasonable doubt in Court. When prosecutors are prosecuting someone for a Domestic Battery, it is common for a Complaining Witness, or victim, to not show up to Court. When that happens, prosecutors will evaluate their case and determine whether they will have enough evidence to prove you guilty beyond a reasonable doubt without the cooperation, and testimony, of the victim. While not having a testimony of the victim usually means that that the prosecutor will not be able to prove their case beyond a reasonable doubt, that is not always the case. There’s more than one way for a prosecutor to prove their case. If you made a statement to the police, prosecutors may be able to admit it into evidence. If there were witnesses to the incident, prosecutors may be able to prove their case with the witnesses. If you made a statement that falls under one of the hearsay exemptions, that statement may be used against you in court to help prove the state’s case.

Schaumburg-Criminal-Lawyer-300x226This morning I met with a client who was charged with a Domestic Battery against his wife last weekend. He and his wife have been going through some marital problems for several months which led to a very heated argument over the weekend. At the end of the argument, my client left the house to go for a ride in his car. After a couple of hours, he received a police a phone call from the local police asking him to return to the home so they can talk to him. When he arrived at his house, he found out that his wife had called 911 to report that she was a victim of Domestic Violence at the hands of my client. She told the police that when she tried to call the police my client fled from the residence in his car. My client insists that these allegations are false. My client’s wife obtained an Order of Protection and my client is not allowed to return to his house nor have any contact with his children. The client was very upset and was complaining that he should not have to hire a lawyer because he is innocent. This attitude by criminal defendants is very common. You need to understand how important it is that you have an experienced and knowledgeable criminal lawyer by your side if you are being charged with a criminal offense. Let me explain why.

The Sixth Amendment to the United States Constitution gives you the right to have a lawyer represent you whenever you are facing criminal charges. The Sixth Amendment also gives you the right to the lawyer of your choice, even if that means that you want to be your own lawyer. It’s important to understand what representing yourself means. Representing yourself means that you have the right to act as your own lawyer. It’s important to understand that if you exercise your Sixth Amendment right to represent yourself, you will be held to the same standards as any lawyer would. The prosecutor is a lawyer. Many prosecutors are highly experienced lawyers. Most prosecutors are in court all day, and have handled countless criminal cases. They have a law degree, passed a Bar Exam, a law license, and have the necessary knowledge and experience required of any lawyer who handles criminal cases. Most criminal defendants that represent themselves do not have the education, knowledge, and experience that the prosecutor has. If you choose to represent yourself, you should be aware of the obstacles you will face and how you are probably out of your league by taking on an experienced prosecutor. Do not think that because you are not a lawyer that the judge will cut you a break and not hold you to the same standards as any lawyer appearing in Court. You should not expect the Judge to help you or guide you through the process. You will be expected to know what you are doing and you will not be helped because you are not a lawyer. If you lose the case, you cannot get a new trial because you didn’t know what you were doing.

Your guilt or innocence will be determined by the judge or jury. The prosecution has the burden of proving you guilty Beyond A Reasonable Doubt. This means that the State has the burden of proving that every element of the crime that you are charged with has been proven by the state beyond a reasonable doubt. If the judge or jury are not convinced of your guilt beyond a reasonable doubt, you will be found not guilty of the criminal charges. Your job is to create reasonable doubt in the State’s case by challenging their evidence and their witnesses. An experienced criminal defense lawyer knows how to do this because they’ve done it before. If you’ve never done it before, trying to defend yourself in court can be an uphill battle. An experienced and knowledgeable criminal lawyer knows the laws and the Rules of Evidence which governs how evidence can be introduced in Court. If the prosecutor tries to introduce evidence that is not admissible in court, your lawyer will know to object and prevent the evidence from being introduced and admitted into evidence. If you fail to object, not only does the evidence come in, but you will lose your right to appeal because you never raised the objection. It is not an excuse to claim that you are not a lawyer. While every case is different, the basic principles in our criminal laws apply to all criminal cases. The Rules of Evidence govern the admissibility and exclusion of evidence. An experienced and knowledgeable criminal defense lawyer understands with the principles of our criminal laws are and knows what the Rules of Evidence are.

Domstic-BatteryArguably, the most common question I am asked by clients. This happens all the time with Domestic Battery cases. While it’s always better to have a victim, or complaining witness, that is willing to cooperate with the defense, it does not mean that the case will be dismissed or that the Defendant is guaranteed to win their case. Let me explain.

Your criminal case begins when you are arrested by the police. If you are facing a misdemeanor criminal charge, the police will charge you with whatever they believe they can prove in Court. If you are charged with a felony, police will consult with the prosecutor’s office who will review the facts and evidence in your case, and file whatever criminal charges they think are appropriate. Police and prosecutors make the ultimate decision to file criminal charges. The victim’s input is important and almost always taken into consideration. The victim’s wishes are taken into consideration and play a major role in almost every criminal case.  However, the victim’s wishes are not determinative of whether criminal charges will be filed or how the case will proceed in Court. Prosecutors are required to keep victims informed about the case and give victim’s an opportunity to attend every court date and address the Court if the need arises. But the threshold issue, of whether criminal charges will be filed, or what criminal charges will be filed, or whether the case will be dismissed, will be decided by the prosecutor based on their discretion and their continuing ethical obligations. The Judge plays no role in those decisions and does not have the power to dismiss charges because the victim is not cooperating with the prosecution and wants the case dismissed.

Situations like this often arise in Domestic Violence cases. The victim and the defendant are in a relationship and the victim does not want anything to happen to the defendant. Many times the victim does not appear in Court for the Defendant’s Domestic Battery case. This is common in Domestic Violence cases. While this is usually good news for the Defendant, it doesn’t mean that the case will be dismissed or that the Defendant will win their case. When victims do not appear in court, it does not mean that your case will be dismissed. The prosecutor has the right to proceed with the case without the cooperation and testimony of the victim. Whether the prosecutor decides to dismiss the case or continue with the case will depend on the evidence gathered by the police. The prosecutor may decide to proceed with the case if they determine that they can prove the Defendant’s guilt without the testimony and cooperation of the victim. I have seen the state proceed with Domestic Battery cases when the victim is not cooperating with the state when the state has other witnesses that are willing to testify, confessions or other statements made by the defendant, and video evidence that shows what happened.

Special-Conditions-of-Bond-300x200I often receive phone calls from clients asking me if they can go back home after they are released from jail or whether they can contact their boyfriend or girlfriend or spouse after being released from jail. I usually tell those clients to come to my office and bring all of the papers that were given to them when they were released from jail. It is very important to keep all of your papers with you if you are arrested and released by the Police so that you may appear for court. You should bring all of your paperwork with you when you are meeting with your lawyer.

Typical Conditions of Bond

If you are arrested and released on Bond, you will be required to comply with certain requirements. In Illinois, the typical conditions that will apply to you if you are released on Bond are as follows:

Arrested-300x226A common question I get from clients is whether they will have to go to jail if they are arrested by the police. Yesterday, I received a telephone call from a prospective client who was caught shoplifting at a local Target. When he was approached by store security, he ran out of the store and jumped into his vehicle and left the store. He noticed the security guards chase him to his car and realized that they probably had his license plate number. The next day he spoke to a police officer who told him that they they have him on video committing the crime and leaving the store and would be charging him with a Retail Theft. He wanted to know whether he would go to jail if he turned himself in as the police had asked him to. This is a common question I get from people calling me and asking for my advice. Many people do not realize what happens when they are arrested and what their rights are when they are in the custody of the police and are not free to leave.

How Long Can the Police Hold Me Before Charging Me or Releasing Me?

As a general rule, the police can hold you in the police station for up to 48 hours before releasing you or charging you with a crime. This is based on a 1991 US Supreme Court case that established this general rule. However, in that same case, the Supreme Court stated that suspects can be held at the police station for a longer period of time if there is “extraordinary circumstances.” It is the policy of the Chicago Police to hold suspects for up to 48 hours before releasing them or charging them with a crime. Joliet police also have a similar 48-hour strict deadline. Police in Elgin and Waukegan consider 72-hours to be their deadline. What constitutes “extraordinary circumstances” is the subject of debate among legal circles and is unsettled by the courts. However, the Supreme Court has held that holding a suspect in custody for the purpose of gathering additional evidence is unconstitutional. Different police agencies and police departments have their own policies. For instance, police in Waukegan will hold a suspect for up to 72 hours but only after they receive approval from the Lake County State’s Attorney’s Office.

Domestic-BatteryA common question I get from clients who come into my office to talk about their Domestic Battery case is whether their Domestic Battery is a misdemeanor or a felony. The overwhelming majority of Domestic Battery cases are misdemeanors. But under certain circumstances, a misdemeanor Domestic Battery can be a felony. If you are charged with a Domestic Battery and the charge is a felony, you will be charged with an Aggravated Domestic Battery. Let me explain what a misdemeanor Domestic Battery is and what a felony Aggravated Domestic Battery is and what’s the difference between the two possible charges.

What is a Misdemeanor Domestic Battery?

If you make physical contact with a family member, you may be charged with a Domestic Battery. There’s two ways that you can be charged with a misdemeanor Domestic Battery in Illinois. The first is if the physical contact results in physical harm to the family member. An example would be punching a family member, or pushing a family member to the ground, causing pain or bruising. Another way that you can be charged with a Domestic Battery is if you make physical contact with a family member that is of an insulting or a provoking nature. An example would be spitting in the face of a family member. While no physical injury or pain results from the contact, this could be considered insulting, making it a misdemeanor Domestic Battery.

Arrest-300x226Being arrested by a police officer is something that nobody would ever want to experience. While being arrested by a police officer does not automatically mean that you will be charged with a crime, it usually means that you are suspected of committing a crime and you should be aware of what may happen and what you should do to protect yourself from what the future may hold.

When you are arrested by a police officer, this means that you are in custody. This means that you are not free to leave. If you are arrested, you will be taken to the local police station. If the police believe that they have enough evidence to prove you guilty beyond a reasonable doubt in court of committing a crime, you may be charged with a crime. However, if the police believe they need to gather more evidence, they can hold you in custody for a limited period of time for questioning.

Whether you are charged with a crime or being held for questioning, you need to understand that you are under no obligation to answer any questions asked by the police. What you need to do is provide some basic information, such as your name and address, but you are not required to answer any questions involving the reason behind your arrest.

Domestic-BatteryOne of the most common questions I get asked by people who are charged with a Domestic Battery is whether they can be guilty of a Domestic Battery if they did not hit anyone.  The short answer to that question is yes.  But let’s talk a little about what a Domestic Battery is and why it is very important that you hire a good Illinois Domestic Battery lawyer who knows what they are doing.

First of all, most Domestic Batteries in Illinois are a misdemeanor.  The maximum punishment for a misdemeanor Domestic Battery is one year in jail and a fine up to $2,500.  But unlike most misdemeanors, if you are found guilty of a Domestic Battery in Illinois, you cannot receive Court Supervision.  Court Supervision is a type of sentence, that if successfully completed, does not result in a conviction on your criminal record.  The lowest possible sentence that can be imposed on a Domestic Battery in Illinois is Conditional Discharge.  A Conditional Discharge sentence for a Domestic Battery cannot be expunged from your criminal record.  This means that if you are found guilty of a Domestic Battery you will never be able to remove the conviction from your criminal record.  And that’s why even though a Domestic Battery is usually a misdemeanor it is more serious than most other misdemeanors.  Since it can never be removed from your record, the consequences of a conviction can last a lifetime.

Next let’s talk about what Illinois law considers a Domestic Battery to be.  In order for a Battery to be considered a Domestic Battery as opposed to a regular Battery, the victim has to be either a family or household member. What does that mean?  This means that the victim has to either be a spouse or former spouse, a child or stepchild, or someone related to you by blood or by a prior marriage.  The victim can also be a current, or former boyfriend/girlfriend or a current, or former spouse. A family or household member can be someone who lives with you, someone that you are alleged to have had a child with or are related to each other through a child.  A household or family member can also be someone that you are currently having, or have previously had, a dating relationship with.  So as you can see, a family or household member is rather broadly defined under Illinois Law.

Domestic BatteryAn Introduction to Domestic Battery in Illinois

A criminal charge of Domestic Battery is a very serious criminal offense in Illinois.  In recent years, public attention has been focused on Domestic Violence.  I noticed the increased attention on Domestic Violence cases after the infamous OJ Simpson case. State legislatures throughout the United States have passed laws which seek to punish crimes like this more severely and to try to put an end to this crime. This is true in Illinois as well.  Laws have been changed to make it easier for a spouse to obtain an Order of Protection.  Laws have been enacted to require the placement of GPS tracking devices on people have been ordered to stay away from victims.  Penalties for Domestic Battery crimes have been stiffened to impose harsher penalties on people convicted of Domestic Battery. Local prosecutors have established units within their offices that specialize in prosecuting Domestic Battery crimes and specific courtrooms have been established in most counties that only handle cases like this.

This article will discuss what the crime of Domestic Battery involves and the possible penalties.

Domestic-BatteryYou can be charged with Interfering with the Reporting of a Domestic Battery when you prevent a family member from making a call to report a Domestic Battery incident.  You can also be charged with Interfering with the Reporting of a Domestic Violence charge if you interfere with a family member who is reporting the incident to the police.  It is very common to see this charge added to a criminal Domestic Battery charge.

Let’s talk a little about how charges like this usually come about.

The police are called to the scene of a report of a Domestic Battery.  Basically, you can be charged with a Domestic Battery when you make physical contact with a family member.  What the law considers to be a family member is defined rather broadly in Illinois.  A current or past boyfriend or girlfriend is considered a family member under Illinois Domestic Battery law.  If the police are convinced that you made contact with a family member that resulted in physical harm to that family member you can be arrested and charged with a Domestic Battery.  But you don’t have to injure the family member to be charged with a Domestic Battery.  You can be charged with a Domestic Battery if the contact that was made was of an insulting or provoking nature.  If the police are convinced that any of these two types of contact occurred, you can be arrested and charged with a Domestic Battery.  If the police determine you did something to prevent the family member from calling the police, or 911, you can be charged with Interfering with the Reporting of Domestic Violence.  An example would be if you took the phone away from the victim, or unplugged the phone or removed the battery from a cell phone resulting in the inability to make a 911 call.   You don’t have to actually prevent the person from calling 911 or the police.  Simply attempting to prevent them from calling the authorities can make you guilty of this crime.  You can also be guilty of Interfering with the Reporting of Domestic Violence if you prevent, or attempt to prevent, a victim from obtaining medical assistance or from making any report to any law enforcement official.  If the police arrive and you threaten the victim with physical harm if they tell the police the truth, that can be considered Interfering with the Reporting of Domestic Violence.