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Articles Posted in Domestic Battery/Domestic Violence

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.

Kane-County-Drug-Crime-300x226Last week, Kane County State’s Attorney, Joe McMahon, reported that Kane County Prosecutors have seen a rise in the number of criminal cases filed in Kane County in the first six months of this year compared to last year. McMahon reports that felony filings are up 15.7% compared to the same period last year. The increase in criminal cases in Kane County is happening with misdemeanor and traffic cases as well. In the first six months of 2017, 1,247 new felony cases were filed. During the same period last year, 1,078 cases were filed. Aurora, the largest city in Kane County, has seen a drop in the number of new felony cases. Most criminal cases in Kane County come from Aurora. The Village of Carpentersville has seen a rise in the number of Retail Theft cases. Carpentersville police attribute this to the opening of a new Walmart in Carpentersville. Elgin, the second largest city in Kane County, has seen a rise in violent crimes. McMahon is concerned with the increase in the number of criminal cases filed in Kane County since the number of criminal cases filed increased in 2016 as well.

In 2016, McMahon talked about the inability of authorities to make a dent in the number of Domestic Battery, or Domestic Violence cases filed in Kane County. In 2016, McMahon reported that of the almost 5,700 misdemeanor cases filed in Kane County in 2015, 1,219 involved Domestic Battery, or Domestic Violence charges. 200 Aggravated Domestic Battery felony charges were filed in Kane County in 2015. In the same 2016 discussion, McMahon talked about the impact that the heroin problem is having on Kane County. McMahon echoed his concerns about the heroin problem in Kane County last week when he announced an increase in the number of criminal cases filed in Kane County. Last week, McMahon stated that drug-related cases, “continue to be a serious problem.”

This morning, the Chicago Tribune is reporting about efforts that police departments throughout the State of Illinois are taking in an attempt to get drug users into drug treatment. Many local police agencies are trying to implement a program started by the police in Glocester Massachusetts a few years ago. The programs are commonly referred to as “Safe Passage.” If people walk into a police station and give up their drugs and ask for help, instead of placing them under arrest, the police will dispose of the drugs without filing criminal charges and will place them in drug rehab programs. More and more police agencies in Illinois are trying to do something like this with varying results. Authorities in Dixon Illinois report great success with their program. Dixon police report that 170 people have been placed into rehab with this program. More than half of the people placed in drug rehab have successfully completed their drug treatment. Dixon police report a 39% decrease in the number of misdemeanor and felony criminal cases filed.

Violation-of-an-Order-of-ProtectionThe main difference between a Civil Order of Protection and a Criminal Order of Protection has to do with how the person who is seeking the Order of Protection goes about getting the Order of Protection entered, or issued.  An Order of Protection is a court order which bars someone from having at least some contact with another person.  The typical Order of Protection forbids a person from being anywhere near another person or forbids them from being at a certain location or attempting to make any contact whatsoever with the other person.  It’s really the only way that the legal system can offer protection from bodily harm from another person.  It’s a piece of paper that has no power in and of itself to prevent anything from happening.  The only thing that the Order of Protection does is allow the police to arrest someone if they are found to be in Violation of the Order of Protection.

Let’s first talk about a Civil Order of Protection. The process for obtaining a Civil Order of Protection is usually started by the person who is seeking to be protected themselves.  They file a Petition with the court requesting that a Civil Order of Protection be entered.  The initial order can be entered without the person against whom the Order of Protection is sought to be entered without even having been served with the petition.  When the Court is presented with the Petition, the court will review it to see if there’s a basis for an order being entered.  The Court may question the person seeking the Order of Protection, known as the Petitioner, and if the Court is satisfied that there’s good cause for the entry of an Order of Protection, the Court will enter an Emergency Order of Protection that will only be good for 14 days.  The Court will set a Court date and the Petitioner will have to serve the Respondent, the person who the Petitioner is seeking to be protected from, with a copy of the Emergency Order of Protection.  At the next Court date a hearing will be held for the judge to determine whether a permanent Order of Protection should be entered.

Now let’s talk about a Criminal Order of Protection.  A Criminal Order of Protection arises out of a criminal case.  The party asking for the entry of an Order of Protection is usually the prosecutor in the criminal case.  Most Criminal Orders of Protection arise out of a Domestic Battery case.  But I have seen them in Stalking and Harassment cases.  What typically happens is that at the first court date, usually the Bond Hearing, the prosecutor will ask the judge to enter a Temporary Order of Protection forbidding the defendant from being anywhere near the victim and from having any contact with the victim.

Domestic-BatteryLast week I had a trial for a Domestic Battery at the Bridgeview Courthouse in Cook County. My client had no criminal record whatsoever. He had been charged with committing a Domestic Battery on an ex-girlfriend (victim) during a consensual sexual encounter. The facts of the case were very strange. At no time did I think that my client was guilty of the Domestic Battery. As a matter of fact, I tried to alert the prosecutor to the weakness of their case and tried to get them to drop the case rather than force their witness to take the stand and be exposed to a potentially damaging cross examination.  Let me tell you about the facts of the case and how easy it is to get caught up in something that you had no idea could possibly become a criminal matter.

Last year, my client met the victim on Tinder. Tinder is a social media site that people frequently use to “hook up”. My client dated the victim for about 2 months. They both agreed to end the relationship but continued seeing each other, on and off, to have sex for several months after they broke up. The day of the alleged crime, the victim contacted my client to set up another consensual sexual encounter. My client, and the victim, agreed that the victim would come over to my client’s condo after work. When my client came home from work, he left the door to his condo unlocked and went to the bathroom. The victim arrived and walked into the condo. After a short while, the victim and my client sat on the couch to watch TV. They started kissing and then had sex on the couch for a few minutes. The victim terminated the sex and proceeded to cuddle with my client for several minutes. The victim decided to go home, so she got up from the couch and grabbed her clothes. As the victim was gathering her clothes, my client grabbed her from behind so that he could take her into the bedroom because he wanted to continue with the sex. The victim struggled to get loose from my client and told him that she wanted to go home. She laughed at him and made a humorous comment.  She tried to gather her clothes again and my client grabbed her once more from behind and a short struggle ensued. Once again, the victim told my client that she didn’t want to have any more sex with him and wanted to go home. At that point, my client complied and went back to the couch. The victim gathered her clothes and went into the bathroom. She testified that she locked the door to the bathroom and put her clothes on. She also testified that while she was in the bathroom my client was not banging on the door nor was he yelling at her. Yet, she testified that she feared him and was frantic to get dressed so she could go home. She testified that after she exited the bathroom she went back to the living room, where the couch was, and saw my client laying on the couch. She asked him if he wanted his clothes and my client said that he did not want to get dressed. The complaining witness went into the kitchen and retrieved a beverage that she had brought with her to the condo and exited the condo. She testified that she ran down the stairs and quickly entered her car.

The victim testified that when she entered her vehicle she immediately placed a call to her Therapist. She could not get a hold of her Therapist so she left a voicemail. At some point, before she got home, she testified that she spoke to her Therapist on the telephone. She then drove home and spoke to her mother. She also spoke to her neighbor, a former police officer. She testified that she told both of them what happened. After she finished speaking to everyone she decided to go to the police and report that she had been the victim of a Domestic Battery. The complaining witness gave the reporting officer a detailed description of the events that happened at my client’s condominium that night.