Domestic battery, more commonly called “spousal abuse” or “spousal battery,” is a California domestic violence crime that applies to intimate partners. Intimate partners may be heterosexual or homosexual, and married, divorced, living together, have children in common, dating or formerly dated. If a person willfully and unlawfully uses force or violence upon an intimate partner, he or she can be charged with battery, which is typically charged as a misdemeanor and carries a maximum of a one-year jail sentence and a $2000 fine. This charge can be brought against a defendant even if he or she used the slightest force. Any unwanted physical touching could lead to a battery charge. However, if the accuser suffers a serious injury, the battery will rise to a felony, which carries a maximum of four years in state prison.

In this, as well as many other intimate partner abuse cases, the condition known as “battered person’s syndrome” (more commonly called “battered women’s syndrome”) comes into play and can be offered as evidence through the testimony of an expert witness by either side. Although it usually refers to a woman, battered person’s syndrome can apply to a woman or a man involved in a heterosexual or homosexual relationship. Battered person’s syndrome is a recognized psychological condition that is used to describe someone who has been consistently and/or severely victimized by his or her partner. It is frequently used in domestic battery cases either to defend an abused defendant’s actions or as evidence against the defendant if the abused victim later recants his or her allegations. Because this syndrome is frequently raised in domestic abuse trials, it is vital to hire a skilled criminal defense lawyer from The Kavinoky Law Firm who is familiar with battered person’s syndrome should it and its effects be introduced into evidence.

The characteristics of this syndrome all focus on the abused believing that the violence was his or her fault. In addition, the syndrome has three distinct phases that include the “tension-building” phase, the actual battery, and the “honeymoon” phase. In order to be diagnosed with battered person’s syndrome, the abused must have gone through all three phases at least twice.

If the abused has committed a crime (and therefore becomes a defendant), battered person’s syndrome may be introduced as a defense to the case. A knowledgeable attorney will likely hire an expert witness to testify that the abused either didn’t have the criminal mental intent that was necessary to commit the crime or that he or she honestly believed that force was necessary to avoid a more serious injury or even death. If either of these scenarios sound familiar, it is crucial to contact an attorney immediately to begin building a defense based on this syndrome.

If, however, the prosecution introduces battered person’s syndrome as evidence against a defendant, it is vital for the defendant to hire an experienced criminal defense attorney to help exclude that evidence or, at the very least, to rebut it with a defense expert witness. A defense expert witness will help discredit the prosecution’s theory that the “victim” suffers from battered person’s syndrome and will point out that the prosecution is simply using it as a way to bolster an otherwise weak case. The prosecution usually introduces the syndrome when the “victim” refuses to testify. The prosecutor then argues that the “victim” has recanted the allegations because the victim feared what would happen if he or she didn’t. A defense expert will rebut that argument, addressing the many legitimate reasons why an accuser may change his or her story.

The attorneys at The Kavinoky Law Firm have the training and experience to handle any battery case. They have successfully defended countless cases with skill and compassion and are well qualified to effectively tackle any and every evidentiary issue that may arise, particularly with respect to battered person’s syndrome. Click here for a free consultation and to secure the best representation available.

Domestic Violence, Expungement, & Firearm Rights

Individuals convicted of a misdemeanor crime of domestic violence, or MCDV, are prohibited by federal law from possessing or transporting any firearm or ammunition. However, those firearm rights can be restored if the conviction is expunged from the record. The experienced post-conviction relief lawyers of The Kavinoky Law Firm are skilled in every aspect of obtaining expungements and restoring the rights of individuals convicted of misdemeanor domestic abuse offenses.

Misdemeanor domestic violence offenses that qualify for firearm rights restoration after expungement are those federal or state offenses that include the use or attempted use of deadly force or threats of using a deadly weapon. Domestic violence law covers current and former spouses and live-in boyfriends and girlfriends, heterosexual and gay couples, parents of children, and parents and guardians.

Certain individuals won’t necessarily need an expungement to restore rights such as firearm possession. These exceptions include anyone who was convicted without being represented by an attorney, or who was entitled to a jury trial and didn’t receive one, unless the individual expressly waived those rights. Also, if an individual was pardoned or otherwise had his or her civil rights restored, no additional action is necessary.

However, if the offense was previously expunged or pardoned or civil rights were restored with express provisions about weapons possession, the individual still cannot own, possess or transport firearms or ammunition. Also, the individual may be otherwise prevented by local, state or federal law from possessing firearms.

However, many individuals convicted of California misdemeanor domestic violence offenses can have firearm rights restored through the process of expungement. The skilled California domestic violence attorneys of The Kavinoky Law Firm will fight aggressively to restore individual rights after a domestic abuse conviction. Contact them today for a free consultation.

Infliction of Injury

Willful infliction of injury is a California domestic violence offense that applies to intimate partners. “Intimate partners” describes a wide range of relationships – the individuals may be married, divorced, living together, former cohabitants, and/or have children together. The laws apply to both straight and gay couples. Any individual who willfully inflicts an injury, no matter how minor, upon an intimate partner can face felony charges punishable by up to four years in prison and a fine of up to $6,000. A defendant can be charged with infliction of injury even if he or she barely touched the intimate partner.

California domestic violence law forbids a defendant charged with infliction of injury from being released on bail in an amount that is either higher or lower than that contained in the bail schedule or on his or her own recognizance (commonly called OR) without first having a court hearing.

During a bail hearing, the judge will consider the defendant’s prior criminal history, his or her flight risk, and the facts of the pending case. When the judge makes decisions about bail, he or she presumes that the accused is guilty and makes a decision keeping that in mind. With that being the case, it would be quite foolish for anyone to try and take on a bail hearing without first hiring a criminal defense lawyer who has experience with every phase of a domestic violence case.

If the defendant is denied an OR release (which is typical when a defendant faces an intimate partner abuse charge) and must post bail, he or she may be released through two different methods: Posting cash bail or posting a bail bond. To be released on cash bail, the defendant must post certified funds (or cash) in the full amount of the bail with either the arresting agency or with the Clerk of the Court. If the accused attends every court appearance, the cash will be returned within 60-90 days after the case is resolved. However, if the defendant fails to appear, the cash bond is forfeited to the court.

A bail bond is a contract with a bail agent where the agent agrees to post a bond for the full bail amount. The bondsman will generally charge 10% of the bond amount as his fee. The bondsman may also require collateral (which is usually a car, house or something else of great value) to secure the bond. That means that if the defendant doesn’t repay the bond, the bondman has the legal right to keep or sell the defendant’s collateral. Once the case is over, the bond is exonerated, and the collateral is then released.

An intimate partner violence arrest in California is no joke. An accusation can be devastating, emotionally and financially, and a conviction carries severe penalties. One’s reputation, career, family and freedom are jeopardized the minute the arrest is made.

Because California is so strict with domestic violence offenders, it’s critical to contact a skilled California defense attorney immediately after being arrested so that the attorney can help the accused navigate through the criminal court system right from the start. In order to secure the best representation from a firm who has successfully defended countless individuals charged with domestic abuse crimes, contact the unparalleled attorneys at The Kavinoky Law Firm for a free consultation.

Domestic Violence Emergency Protective Orders

An Emergency Protective Order (EPO) is one type of protective order available to victims of domestic violence. In California, domestic abuse laws apply to intimate partners. Intimate partners include both heterosexual and homosexual persons who are married, divorced, cohabiting, have children in common and who are or were dating. An individual who is being abused by an intimate partner may obtain an Emergency Protective Order to aid in his or her protection against the abuse.

In California, each court has an appointed judicial officer who is authorized to issue protective orders even when the courthouse is not open. Throughout this state, when a police officer responds to an intimate partner abuse call, he or she can call a judge at any time of the day or night to request an Emergency Protective Order if he or she feels that a victim is in imminent danger. Emergency Protective Orders are designed to protect victims and their children from the domestic abuser. The protective order is enforceable throughout the state of California by any law enforcement officer who is shown a copy of the order by the protected party. An EPO lasts for five to seven days, allowing the individual enough time to go to court to request a longer Temporary Restraining Order. Before that time, it is recommended that the victim contact an attorney experienced in dealing with California domestic violence matters to successfully obtain that order.

Through an Emergency Protective Order, a judge can order that the restrained person leave the home, stay away from the protected person or persons, and not see his or her children, at least on a temporary basis. In order to issue an EPO, a judge must reasonably believe, based on a law enforcement officer’s assertions, that an individual is in immediate and present danger of intimate partner abuse, that a child is in immediate and present danger of abuse or abduction by a family member, or that an elder or dependent adult is in immediate and present danger of being abused by a family member and that the order is necessary to prevent the occurrence.

Once an Emergency Protective Order is issued, it is imperative that the restrained individual hires a skilled attorney to defend against a more restrictive, more permanent restraining order. A more permanent protective order issued against an accused severely impacts the relationships with his or her spouse, children, family and friends. In addition, if a restrained person is found in violation of that order, the defendant will additionally suffer jail time and/or fines. A knowledgeable criminal defense lawyer from The Kavinoky Law Firm will not only help tell the accused’s side of the story but will ensure that it is heard as well.

The attorneys at The Kavinoky Law Firm are familiar with every aspect of a domestic abuse case and take the time to explain each step of the process with their clients. They maintain an excellent reputation for treating their clients with understanding and respect, which is only surpassed by their success rate. Click here for a free consultation.

Physical Evidence in a Sexual Battery Case

Sexual battery is a California domestic violence offense that can be charged against intimate partners. California defines intimate partners in domestic abuse cases very broadly – they may be straight or gay, married, divorced, cohabitating, have children together, or be currently or formerly dating.

Anyone who touches an intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse can be charged with sexual battery. “Touching” can mean any type of physical contact, however slight, and can occur directly or through the clothing of either partner. This offense can be charged even against partners involved in an ongoing relationship. Sexual battery can be charged as a misdemeanor or a felony with penalties of up to one-year in jail or up to four years in prison and fines of up to $10,000.

Unfortunately, many partners are involved in mutually abusive relationships. This means that both partners are victims and abusers. In these troubling relationships, both partners will exert their power in a number of ways. One of the common ways that a partner will do this is by making a false allegation. An example of this is when the self-proclaimed “victim” accuses his or her partner of sexual battery when it didn’t occur or accuses the partner of causing an injury that, in fact, wasn’t his or her fault.

When this type of situation arises, DNA evidence plays a vital role. When faced with a sexual battery charge, it is important to hire an attorney who is experienced with all aspects of a California intimate partner abuse case, including the many types of evidentiary issues that often arise in connection with this crime. The skilled criminal defense lawyers at the Kavinoky Law Firm receive ongoing training in domestic violence trial strategies and evidentiary issues, such as DNA evidence, giving them a leg up on the competition. They have successfully defended countless individuals who faced sexual battery charges, protecting them from the devastating consequences that the charge carries.

In criminal courts throughout this country, DNA evidence is playing a larger role than ever before in helping to convict the guilty and to clear the falsely accused. DNA (deoxyribonucleic acid) evidence is particular to each individual and remains constant throughout one’s life. Virtually every cell in the body contains DNA and it is the same in each cell, whether it is found in one’s hair, saliva, blood, skin tissue or bone. This evidence is so powerful because, with the exception of identical twins, no two people share the same DNA.

This means that if DNA can be collected from a crime scene, it can either link the accused to the crime or exclude the accused from the crime. For example, in a sexual battery case, if an alleged abuser’s DNA evidence, such as semen, saliva, blood or skin tissue, is found on the alleged victim’s body or clothes, it will be easier to assess blame to the accused. However, if someone else’s DNA is found on the alleged victim, it may be easier to clear the suspect and possibly look at bringing a criminal charge against the “victim” for filing a false police report.

DNA evidence is clearly here to stay. Having an attorney who is well versed with DNA evidence and the ways that it can be admitted into and excluded from evidence in a domestic abuse case is of the utmost importance, especially when facing the severe consequences inherent within a sexual battery conviction. The knowledgeable attorneys at the Kavinoky Law Firm have experience with this complex and technical area of the law and can outline an effective strategy during a free consultation. In addition, they have the necessary resources to help prepare the best possible defense strategy, which is specifically developed for each client.