Articles Posted in Domestic Battery/Violation of Order of Protection

cannabisA recent Illinois appeal involved a Domestic Battery. The defendant was acquitted of Aggravated Domestic Battery and unlawfully interfering with a report of Domestic Violence, but he was convicted of Domestic Battery under 720 ILCS 5/12-3.2(a)(1). The trial court denied his post-trial motion, and he was sentenced to 30 months in prison. He appealed on the grounds that the court had made a mistake in permitting the prosecution to impeach him with his felony Cannabis conviction.

The case arose from allegations that the defendant knowingly caused harm to a woman by choking her after previously being convicted of a Domestic Battery. In addition to applying pressure to her throat, it was alleged that he stopped her normal breathing or blood circulation, and he knowingly stopped her from calling the police by taking her phone.

Before trial, the defendant tried to stop the State from impeaching him by showing he had a prior Domestic Battery conviction and a felony Marijuana conviction. At the hearing, the prosecution argued that the Marijuana conviction could be admitted because the charge was not similar to the defendant’s current charges, and it had impeachment value because it was a crime against society.

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knifeIt is crucial to retain an experienced attorney to defend you if you’re charged with domestic battery or aggravated domestic battery in Illinois. In a recent Illinois appellate case, the defendant was convicted of aggravated domestic battery after a bench trial. The couple had met in 2011 and started an intimate relationship. The woman gave birth to their child. She had no permanent place of residence, so she stayed with the defendant at his house. They frequently argued, which caused her to leave for a certain period before coming back.

In 2012, during a fight, the defendant threatened to kill her and put her in a chokehold. Their son was in a car seat on the floor. The mother flipped the defendant onto the floor, but he kept choking her for about two minutes until she had to stop. She left and called the cops, but she didn’t want medical treatment when an officer offered to call an ambulance. She filed an order of protection against the defendant, but she had no way to go back to court to make sure the order continued to be in effect. After that, she lost custody of the child.

The couple continued to argue. On the last occasion, the defendant stabbed the victim. She didn’t realize she’d been stabbed until she saw the blood, and then she panicked. He told her to run, and she did. She passed out on the street, and when she woke, the police were there and asked who’d stabbed her. She had to have an emergency surgery to fix the wound.

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Order-of-Protection-200x300Many times when someone is arrested and charged with a Domestic Battery the Court will issue an Order of Protection that seeks to protect the person claiming to be abused (Petitioner) from being harmed or harassed by the person who is being charged with the Domestic Battery. When I have a client (Respondent) that has an Order of Protection entered against them they often get confused and do not fully understand what this means and what they can and cannot do. I want to discuss what an Order of Protection is and what you need to do to protect yourself from Violating the order and getting into deeper trouble.

Basically an Order of Protection is a Court Order which prohibits someone from doing something. There’s two ways for an Order of Protection to come into existence. The most common way is when someone is arrested and charged with a Domestic Battery. At the first court date, which is usually the Bond Hearing, the court will enter an Order of Protection . This initial Order of Protection is only for a limited time until the Court conducts a hearing to determine whether to extend the Order of Protection or enter an Order of Protection that will last for as long as the Domestic Battery criminal case continues in court. This is called a Plenary Order of Protection.  Another way for an Order of Protection to be issued is when someone goes to court and files a Petition asking the court to issue a Temporary Order of Protection.  In cases like that, the Order of Protection is often issued without the other person being present in court and is only for a short period of time so that the other person can be notified to appear in court so that a hearing may be conducted to determine whether the Order of Protection should be extended or issued for up to two years.

Not every Order of Protection is the same. From my experience there’s basically two types of Orders of Protection that are usually entered. The most common Order of Protection is a “full no contact” Order of Protection. That type of Order of Protection provides that the Respondent is not allowed to have any contact whatsoever with the Petitioner.  The other type of Order of Protection that is commonly entered prohibits any harmful or offensive contact.  The full no contact Order of Protection means what the title says.  If you have that type of Order of Protection entered against you this means that you cannot have any contact whatsoever with the other person.  Those types of Orders usually provide that you cannot be within a certain number of feet of the other person, that you cannot go to their residence, that you cannot go to their place of employment and other places where they may be.  It also means that you cannot contact them by electronic means whatsoever. This includes email, social media, telephone calls, and text messages.  The reason that you are trying to contact that person is irrelevant.  The mere fact that you tried to contact them by sending an email or a text message, or posting something on their Facebook page is enough for you to be considered in Violation of the Order of Protection.

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 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.  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.

Inspector. Please note that the graphics are my artwork.Thanks. The Law with respect to family related, domestic violence issues. Book of law with a gavel and a Restraining Order.

In 2010 the Kane County State’s Attorney’s office, in collaboration with Domestic Violence victims rights groups established the first Domestic Violence Diversion Program in Illinois. The main goal of this Diversion Program is to take first-time domestic violence offenders out of the criminal justice system and place them into a program that is designed to prevent them from becoming repeat offenders. Instead of putting them through the criminal justice system and punishing them, this program seeks to treat the causes behind the behavior. Treatment rather than punishment. If an offender successfully completes this program, the case will not be placed on their permanent criminal record. This is very important. While the vast majority of domestic battery cases are misdemeanors that carry a maximum punishment of one year in jail, a guilty plea, or a finding of guilt for a domestic battery, can never be removed from your permanent criminal record.  You cannot receive Court supervision for a Domestic Battery. The only possible sentence for a Domestic Battery is conditional discharge or a misdemeanor conviction. You are not allowed to expunge a Domestic Battery. The consequences of not being able to remove a Domestic Battery from your criminal record should be pretty obvious. If you ever apply for a job, a criminal background search will reveal this case on your record. If you ever apply for an apartment and your landlord performs a background search, they will find this criminal case in your background. If you apply for a loan, a lender may find this case in your background.

Offenders are not automatically eligible for the Domestic Violence Diversion Program. You are ineligible for this program if you have ever had any prior conviction or any type of probation for a Domestic Violence-related offense. You will not be eligible if you are an active gang member or–if your case is eligible to be upgraded to a felony. They will check with the victim and the arresting police officer and if they object to you being admitted into this program, you will not be eligible. You will not be eligible if you are unwilling to admit your guilt. If you threatened or intended to cause physical harm to the victim, you will not be eligible for this program. If the victim required medical treatment, you will not be eligible. Finally, you will not be eligible for this program if it was determined that you used or possessed a deadly weapon during the course of this Domestic Battery or if you have previously participated in this, or a similar, program. This program is strictly for first time offenders.

Once the State Attorney’s Office determined that you are eligible to be placed into this program, you will be instructed to contact the State’s Attorney’s Office so that you can arrange to be interviewed. You will be charged a $25 application fee. If they accept you into this program, you will appear at the next court date and you will plead guilty. Whether or not you are accepted into this program is left to the sole discretion of the State’s Attorney’s Office and you cannot appeal their denial of your acceptance into this program.

Domestic BatteryThe Illinois State Senate Judiciary Committee will begin hearings on changes to the Rights of Crime Victims and Witnesses Act. This Act is commonly known as the Illinois Crime Victims Bill of Rights. This Act is designed to preserve, protect and enforce the guaranteed rights of Crime Victims throughout the criminal justice process. It requires that victims receive notice of all court dates, requires prosecutors to communicate with victims, and gives victims the right to be consulted when it comes to plea agreements and at sentencing hearings.  The changes that will be considered by the Senate Judiciary Committee will give crime victims the right to hire an attorney who will represent them during the entire criminal case so as to ensure that their rights are protected and enforced at no charge.  The attorney fee will be paid from the Crime Victim Compensation Fund. This Fund was established by the State Legislature to help victims of violent crime and their families to help reduce the financial burden to them. Currently, Crime Victims are allowed to hire their own attorney to represent them in a criminal case. But under current law, the victim has to pay for the attorney out of their own pocket. The new law will provide that the attorney be paid out of this Fund.

There is no doubt that more needs to be done to help crime victims. In my practice, I frequently receive phone calls from people who are victims of crime looking for answers and looking for help. While there’s plenty of resources online for criminal defendants looking for legal representation in criminal cases, there are not enough resources to assist victims of crime. This is especially true for victims of Domestic Violence. Not only do they have to go to court and try to understand how the court proceedings will affect their lives, but many of these victims have to make arrangements to live outside the home. Some of the victims have child care issues, child support issues, child visitation issues, and various other issues having to do with raising their family during the pendency of a Domestic Battery criminal prosecution and afterwards. Many of these cases involve Orders of Protection, Conditions of Bond issues which may affect whether they can have contact with their spouse, and various other issues that go well beyond the criminal proceedings in court. These victims are in desperate need of assistance. Some of these victims have never been on their own before. These people need help and it’s very difficult, if not impossible, to find someone to help you. On top of that, to ask victims to come up with money to hire their own attorney is simply unrealistic. Prosecutors are busy prosecuting cases in court. To ask them to take on the responsibility of basically representing the victim during a criminal prosecution may be asking too much of prosecutors. There is no doubt that victims of crime need and deserve an attorney who will be with them during all the phases of a criminal case. Many victims of crime have never been exposed to the criminal justice system. Some criminal defendants have previously been through the system so they know what is happening and what is going to happen.  As with many other things, while this is a good idea, the money may not be there to make this work. The State of Illinois is going through very difficult economic times. If you ask any Illinois resident they will tell you that Illinois is basically broke. There may not be any money to make this work. So while conceptually this legislation makes sense, there may not be enough money around to make this happen.  In addition to the financial constraints, the Attorney General’s office is also withholding support for the legislation. Apparently, recent changes to this same Act were made and the Attorney General’s office wants to wait and see how the new changes operate before agreeing to more changes to the Illinois Crime Victims Bill of Rights.

If the measure makes it past the Judiciary Committee, it will go before the House and Senate for a vote.

Domestic BatteryAn Introduction to Domestic Battery in Illinois

A criminal charge of Domestic Battery is a very serious offense in Illinois.  In recent years, public attention has been focused on Domestic Violence.  I noticed the increased attention on Domestic Violence 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 people convicted of Domestic Battery have been stiffened to impose harsher penalties on people convicted of Domestic Battery. Local prosecutors offices 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.

RecentVictoryLast week, Possession of Drug Paraphernalia charges pending against my client in Kane County were dismissed after the court granted my Motion to Suppress the search of his gun safe inside his house and threw out all of the evidence seized as a result of the illegal search.

A couple of police officers arrived at my client’s home to serve him with an Emergency Order of Protection arising out of a domestic dispute with his wife. The officer asked my client if he had any firearms inside the home.  My client advised the officer that he had several firearms inside a locked safe in his home and showed the officer his valid FOID card.The officer contacted her supervisor who instructed her to seize the weapons in the home, inventory them and transport them to the police station. My client indicated his displeasure with what the police were doing but was told that he had no choice in the matter.  He provided the officers with the key to the gun safe and the police started removing the guns from the safe.  As they were removing the guns from the safe, they smelled some burnt cannabis, looked inside a bag at the bottom of the safe and found a pipe that is used to smoke marijuana.  My client was arrested and charged with Possession of Drug Paraphernalia.

I filed a Motion to Suppress alleging that the search was illegal because the police did not have a warrant to search the safe and that there was no exception to the warrant requirement.  After I established that the police conducted the search without a search warrant, the burden shifted to the state to show that an exception existed.  The state made several arguments which failed.  The state argued that the Paraphernalia would have eventually been discovered when the guns would have to have been removed by the police because he had to leave the home and the only way he could go back would be with a police escort.  The state argued that the Defendant was required to surrender his FOID card and surrender his weapons as a result of being served with an Order of Protection.  However, we produced a letter from the Illinois State Police dated three days after the date of the serving of the Order of Protection which informed him that his FOID card had been revoked and he had 48 hours to turn over his firearms to the local police.  After hearing all the arguments and all the evidence, the Court ruled that the police had no right to seize his weapons so any evidence obtained as a result of the illegal search of the safe was suppressed and would not be allowed into evidence in his case. Faced with the fact that the evidence could not be used against the Defendant, the state had to drop and dismiss the Possession of Drug Paraphernalia charges.

Robbery ChargesThis week the United States Supreme Court issued a ruling in a case which expands the ability of the police to search a residence even though they had originally been denied consent. The case started when police arrived at the Los Angeles home of Walter Fernandez for a suspected Robbery.  When the police first arrived at Fernandez’s home, they asked for his consent to enter and search and he did not grant them consent to search.  The police then determined that he had committed a domestic battery on his girlfriend and arrested him.  An hour later, while Fernandez was under arrest at the police station, the police returned to his residence and obtained consent to search from his girlfriend.  When they searched his residence, they recovered weapons and other evidence which connected him to the Robbery.  He was eventually convicted of Robbery, gun and Domestic Battery charges and sentenced to 14 years in prison.  He appealed his conviction arguing that the police did not have the right to search his residence since he had denied them consent.

The question facing the Supreme Court was whether the police had to obtain a warrant to search his residence in light of his denial of a consent to search?  In a 6-3 decision the Supreme Court ruled that a warrant was not required and upheld the search of the home and the subsequent conviction of Fernandez.  In 2006, in Georgia v. Randolph, the Supreme Court ruled that the objection of a consent to search of one occupant was valid to bar a search without a warrant even if one occupant consented so long as the occupant denying consent remained at the location.  The Court held that since Fernandez was not present when the police returned, his denial was no longer in effect and when his girlfriend consented, that was all the police needed.  A notable development in this case is that Justice Steven Breyer, a noted liberal on the Court, joined the majority conservative Justices in limiting the 4th Amendment’s prohibition against unreasonable searches and seizures.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients against robbery, and weapons charges.  If you have a robbery or weapons case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

imagesqtbnANd9GcQqR4Dz_uJGafmoHScPDeNzYZcWF8nOZr5yYXTErMMwySXKQFF9The Cook County State’s Attorney Deferred Prosecution Program is a diversion program for adult felony defendants without a prior felony conviction that have been arrested for non-violent crimes. Participation to the program is at the sole discretion of the State’s attorney.

The program placed the defendant into a 12 month intensive  program. Upon completion of the program, the State will then dismiss the case. The Defendant can then file to have the arrest record expunged upon dismissal. In Cook County, due to delays, it takes 6  to 12 months to have the arrest record expunged after the Petition to Expunge is filed.

However, only probationable  offences of  Theft, Retail Theft, Forgery, Possession of a Stolen Motor Vehicle, Burglary, Possession  of Burglary Tools, Possession of Cannabis, Possession of a Controlled Substance, and Possession of Methamphetamine are eligible for the program.