Criminal Defense of Domestic Violence Offenses and

Order of Protection Violations

Domestic violence defense attorneyAt the Law Offices of Robert W. Brown, Jr., whether you have been charged with a domestic battery or a violation of an order of protection you will get the professional legal help you need. In defending these types of criminal prosecutions, it helps to know the inner workings of the prosecutor’s office. Robert Brown is a former State’s Attorney, so he has special knowledge of how and why criminal charges are brought. Mr. Brown is a respected and experienced criminal defense attorney in Lake County ready to help you with personalized, quality legal representation.

In the last decade, Illinois’s response to domestic violence has increased, both in effort and in effectiveness. The law enforcement community at large, local prosecutors and the courts have been in the forefront of protecting the victims of domestic abuse.

Strong legislation to curb serious crime

The Illinois Domestic Violence Act of 1986 marked a watershed change in attitude of the General Assembly, prosecutors, police and the general public. The act was enacted to address the serious problem of domestic violence in our society. The Act provides for greatly expanded civil and criminal remedies for victims of domestic battery, but it also provides the opportunity for abuses in divorce or child custody situations.

If the police were called to a domestic dispute prior to 1986, the parties were usually separated and allowed time to "cool off." Arrests rarely occurred.

The Domestic Violence Act clarified and expanded the role of law enforcement officers in crimes of domestic battery. Today if the police are called to a domestic dispute where they witness physical harm, an arrest most likely will be made, regardless of the wishes of the victim.

The Act offers protection to victims abused by a family or household member. That protection comes in the form of a civil court order (Order of Protection) that is designed to stop violent and harassing behavior and to protect individuals from the abuser. 

During the last twenty years the legislature has enacted numerous changes to the 1986 Act.  In August 1993, court supervision was no longer available and a conviction for domestic battery became mandatory. That criminal conviction may have drastic implications:  future employment, continued employment with a current employer, or it may prevent obtaining a license in a particular trade or profession. 

Levels of protection

An order of protection can be obtained on an emergency basis when there is a likelihood of harm or injury. Typically, an emergency order of protection is sought after a recent incident of domestic violence. Since an emergency order of protection is sought relatively soon after an incident of violence, a judge will hear the petitioner without the presence of the other party. If the judge finds that irreparable harm or injury is likely to occur, then the judge may enter an emergency order of protection for a maximum of 21 days.

 An interim order of protection may offer the individual a slightly longer period of protection than an emergency order. However, the person against whom the order is sought or his lawyer must have made an initial appearance before the court, or that person must have been notified of the court hearing before a judge will grant such an interim order.  An interim order lasts for up to 30 days.

A plenary order of protection can be issued only after a full court hearing in which evidence is taken, and both sides have an opportunity to call and cross examine all witnesses.  A plenary order may last up to two years.

 A violation of an order of protection can constitute a criminal misdemeanor or felony offense.

Who is protected

The Domestic Violence Act recognizes eleven relationship categories that constitute a family or household relationship, and these individuals may seek a protective order:

-spouse

-former spouse

-parent

-child

-stepchild  

-person related by blood or marriage

-sharing or formally sharing a common dwelling

-persons who have a child in common

-sharing a blood relationship through a child

-dating or engagement relationship

-personal assistant to a disabled person

Identified behaviors

Domestic violence can include, but is not limited to the following which in themselves constitute various crimes under the criminal code:

-physical abuse

-threats that place an individual in fear of physical harm

-unlawful imprisonment

-harassment

-stalking

-intimidation of a dependent

-interference with personal liberty          

When the case reaches the courts, victims are routinely subpoenaed; if they fail to appear a "body attachment" (the civil equivalent of an arrest warrant) is often issued to ensure that necessary witnesses are present for the prosecution.  It is not unheard of for spouses (victims) to be charged with filing a false police report if their testimony suddenly changes at trial.

Modifications to the Domestic Violence Act

In 1997, changes to the law required bond amounts for domestic battery to be set by a judge at a bond hearing and also mandated that bond could no longer be set by rule of court. Often individuals arrested for domestic battery will spend the night in jail before being taken before a judge to set bail.  If released on bond, they are subject to a 72-hour "cooling off" period during which they may not return home.

Those convicted of domestic battery now forfeit the right to possess firearms or obtain a FOID (Firearm owner’s identification card) in the future.

Domestic Battery Defined

Domestic Battery Defense LawyerDomestic Battery: (720 ILCS 5/12-3.2),  A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

1.  Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended

2.  Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

Sentence:

Domestic battery is a Class A Misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery (Section 12-3.2) or violation of an order of protection (Section 12-30).  Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for aggravated battery (Section 12-4), stalking (Section 12-7.3), aggravated stalking (Section 12-7.4), unlawful restraint (Section 10-3), or aggravated unlawful restraint (Section 10-3.1), when any of these offenses have been committed against a family or household member as defined in Section 112A-3 of the Code of Criminal Procedure of 1963.  In addition to any other sentencing alternatives, for any second conviction of violating this Section within 5 years of a previous conviction for violating this Section, the offender shall be mandatorily sentenced to a minimum of 48 consecutive hours of imprisonment.  The imprisonment shall not be subject to suspension, nor shall the person be eligible for probation in order to reduce the sentence.

Domestic battery committed in the presence of a child:

In addition to any other sentencing alternatives, a defendant who commits, in the presence of a child, a felony domestic battery (enhanced under subsection (b), aggravated domestic battery (Section 12-3.3), aggravated battery (Section 12-4), unlawful restraint (Section 10-3), or aggravated unlawful restraint (Section 10-3.1) against a family or household member, as defined in Section 112A-3 of the Code of Criminal Procedure of 1963, shall be required to serve a mandatory minimum imprisonment of 10 days or perform 300 hours of community service, or both. The defendant shall further be liable for the cost of any counseling required for the child at the discretion of the court in accordance with subsection (b) of Section >5-5-6 of the Unified Code of Corrections. For purposes of this Section, "child" means a person less than 16 years of age who is the defendant's or victim's child or step-child or who is a minor child residing within the household of the defendant or victim. For purposes of this Section, "in the presence of a child" means in the physical presence of a child or knowing or having reason to know that a child is present and may see or hear an act constituting one of the offenses listed in this subsection.

Aggravated Domestic Battery: (720 ILCS 5/12-3.3) 

A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery.

Sentence:

Aggravated domestic battery is a Class 2 felony.  Any order of probation or conditional discharge entered following a conviction for an offense under this Section must include, in addition to any other condition of probation or conditional discharge, a condition that the offender serve a mandatory term of imprisonment of not less than 60 consecutive days.  A person convicted of a second or subsequent violation of this Section must be sentenced to a mandatory term of imprisonment of not less than 3 years and not more than 7 years or an extended term of imprisonment of not less than 7 years and not more than 14 years.

Selecting an experienced attorney is imperative in protecting your rights in any criminal proceeding involving a domestic battery or violation of a domestic order of protection.

The Law Offices of Robert W. Brown Jr. P.C. in Libertyville, Illinois is devoted to representing the rights of those who have been arrested.

Note: There are numerous criminal offenses and procedural rules that apply in Illinois to domestic violence, and the General Assembly is continually amending existing offenses, adding new ones, or increasing the penalties to be imposed each session. Therefore, it is beyond the scope of these web pages to discuss all of them. The Illinois Domestic Violence Act, entitled "Families" may be found in Chapter 750 of the Illinois Compiled Statutes. Chapter 720 entitled "Criminal Offenses" defines certain crimes that constitute domestic violence. Those publications may be found in any public library or on our Web Resources page.

DISCLAIMER: The information contained in this web page is not intended to serve as legal advice or as a substitution for a consultation with a qualified criminal attorney.  New laws are frequently passed by the General Assembly and the Appellate Courts of Illinois are constantly issuing opinions interpreting how the law is to be applied, therefore it is imperative that you consult with a legal professional.

Copyright by the Law Offices of Robert W. Brown, Jr. P.C.  All rights reserved. You may reproduce materials available at this web site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

 

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Law Offices of Robert W Brown Jr
14047 W Petronella Dr Ste 202A
Libertyville, IL 60048
(847) 367-1617

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