Eyewitness Accounts and Infliction of Injury

Infliction of injury, more commonly called “spousal abuse,” is a California domestic violence crime that applies to intimate partners. These partners may be heterosexual or homosexual and married or divorced, living together or formerly living together, or have children in common. If an individual willfully inflicts any injury, no matter how minor, upon the body of an intimate partner, he or she can be charged with a felony, punishable by up to four years in prison and a fine of up to $6,000. This charge can be brought against a defendant even if he or she barely touched the intimate partner.

Because of the intimate nature of domestic abuse, most violent situations occur outside the presence of witnesses. As a result, many infliction of injury cases are based on “he said, she said” allegations. Eyewitnesses, therefore, play a vital role in helping to prove or disprove an alleged victim’s charge of abuse.

The job of an eyewitness is to simply tell the judge and/or jury what he or she saw with no inherent bias. Easily said, rarely done. Eyewitnesses almost always have a bias either for or against one of the parties, depending on his or her relationship with them. As a result, the truth generally gets lost in translation.

There is a common misconception that a witness testifies for either the prosecution or the defense, but that is truly not the case. Since both parties have a chance to examine the witness, witnesses essentially testify for both parties. A skilled criminal defense lawyer knows how to take an eyewitness who is presented by the prosecution and turn him or her into a witness who ultimately helps prove the defendant’s version of the events. Similarly, a good defense attorney will invest time in preparing an eyewitness that he or she intends to “put on the stand” in order to try to make sure that he or she is comfortable with answering questions and to ensure that the witness doesn’t get tripped up by the prosecutor’s cross-examination.

Infliction of injury cases are usually based on a highly charged, emotional incident that unfortunately took a turn for the worse. This means that even if there was an eyewitness to the abuse, that individual may not have witnessed all the events that led to the charged incident and may not have the accurate back-story on what took place before the charged incident. It is the attorney’s job to make sure that this type of information gets relayed to the jury. The experienced attorneys at The Kavinoky Law Firm have successfully defended countless individuals who faced infliction of injury charges. They are familiar with all aspects of California’s intimate partner abuse laws and know how to skillfully examine witnesses in ways that are beneficial to their clients. In conjunction with their private investigators, the attorneys not only interview all witnesses but also check the criminal history of each witness to uncover any past conduct that could be considered relevant in weighing that witness’s credibility. A knowledgeable attorney will effectively cross-examine witnesses in an infliction of injury case to bring out and highlight discrepancies in their accounts that may otherwise be overlooked.

An eyewitness could potentially be the “kiss of death” to a defendant facing a domestic abuse charge. When facing an infliction of injury charge (especially when there was an eyewitness), it becomes even more critical for the accused to hire an attorney who is competent and experienced in handling witness preparation and who excels in cross-examination. The attorneys at The Kavinoky Law Firm know how to handle diverse witnesses under a variety of circumstances. Keeping the jury in mind, they know when it is appropriate to examine a witness with care and compassion and they know when it is appropriate to “take the gloves off” to aggressively attack. They are in it to win! Don’t hesitate to contact them today. Click here for a free consultation and for the best representation.

DNA Evidence in a Violation of a Protective Order Case

Violation of a protective order is a California domestic violence offense that can be charged against an intimate partner. The term “intimate partners” includes every type of couple – straight, gay, married, divorced, cohabiting, individuals with children in common, or who are currently or were formerly dating.

Anyone who intentionally and knowingly violates a protective order in a California domestic abuse case can be charged with a misdemeanor punishable by a maximum of one year in jail and a $1,000 fine.

Protective orders issued by the court prohibit the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. California courts even punish domestic violence defendants for violating orders in California that was issued in other states. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days and the fine may rise to $2,000.

Unfortunately, there are many partners who 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 violating a protective order when he or she actually didn’t.

In a case alleging physical injury to the protected party or in a case where there may be some physical evidence, such as a letter, DNA evidence can play a vital role. When charged with violating a court order, it is important to hire an attorney who is experienced with all of the evidentiary issues that often arise in connection with this crime. The skilled criminal defense lawyers at The Kavinoky Law Firm receive ongoing training in intimate partner abuse trial strategies and evidentiary issues, such as DNA evidence, giving them a leg up on the competition.

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 violation of a protective order case, if the defendant’s DNA evidence, such as saliva, blood or skin tissue, is found on the protected party’s body or clothes, or on a letter written to the protected party, it will be easier to assess blame to the accused. However, if someone else’s DNA is found on the alleged victim or on any other physical evidence, 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 in 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 potential jail or prison time in connection with a conviction for violating a protective order. The knowledgeable attorneys at The Kavinoky Law Firm have experience with this complex and technical area of the law. An experienced lawyer can outline an effective defense strategy during a free consultation.

Mandatory Terms of Probations in a Sexual Battery Conviction

Intimate partners may be charged with sexual battery is a California domestic violence case if one individual is accused of touching the other for purposes of sexual gratification or abuse. Almost any type of relationship can be considered an intimate partnership – the couple may be of the same or opposite genders, and can be married, divorced, living together, have children in common, dating or formerly dating.

A sexual battery charge can stem from any type of touching or physical contact of another person’s intimate parts, whether it occurs directly, through the clothing of the accused, or through the clothing of the accuser. Even an individual involved in an ongoing relationship can face a sexual battery charge. This offense 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.

While that is the maximum prison sentence and fine that can accompany a first time sexual battery conviction (a person with aggravating factors and/or prior sexual battery convictions faces more severe punishment), it is not a complete list of the penalties that ultimately face the offender. If a defendant is convicted of any intimate partner abuse crime in California, and is granted probation, there are certain conditions that must be imposed.

Upon a conviction of sexual battery, the defendant is placed on a minimum of three years probation, which may be formal or informal, depending on whether the crime was charged as a felony or a misdemeanor. During that time, a criminal court protective order will be issued against the defendant to prevent further acts of violence against the victim and, if appropriate, will contain a residence exclusion or stay-away conditions. It should be noted that the victim will be notified about the outcome of the case. The defendant will also be required to register as a sex offender and required to pay an additional $200 – $300 fine for committing the offense, which will be paid to the Department of Justice Sexual Habitual Offender Fund. Registration is for life, has many requirements, and if those requirements aren’t met, the convicted faces additional penalties, including additional time in jail and/or prison.

In addition to the procedural conditions just described, the convicted must pay a separate fine of at least $200 to various domestic abuse funds that are distributed by the state. He or she will also be required to attend a minimum two-hour “batterer’s class” on a weekly basis for at least one year. Depending on the circumstances surrounding the charged incident, the court may also order the defendant to enroll in a drug and/or alcohol dependency program. Community service will also be required.

In lieu of an additional fine (but not in lieu of the $200 – $300 or $400 payments described above), the court may order the convicted to pay up to $5,000 to a battered women’s shelter or to reimburse the victim for any reasonable expenses that the court believes were incurred as a direct result of the abuse.

When the court evaluates the defendant’s progress, it takes into consideration his or her ability to pay and his or her willingness and diligence in following through with these mandated conditions. Finding good cause, the court may modify, extend or even revoke probation. If probation is revoked, the maximum prison sentence will likely be imposed. Having an experienced criminal defense lawyer is the key to ensuring that these probation requirements are kept to a minimum.

The understanding attorneys at the Kavinoky Law Firm treat each client with compassion and respect. They sympathize with their clients and do their best to help each client through this difficult time. A knowledgeable defense lawyer can explain the complexities of a California sexual battery charge during a free consultation.

Civil penalties for stalking one’s intimate partner in California

Stalking, as defined by California’s domestic violence laws, is when an individual maliciously and willfully follows or harasses and threatens his or her intimate partner with the intent to place that partner in fear for his or her safety. If convicted of this crime, the defendant faces up to one year in the county jail and up to a $1,000 fine if convicted of a misdemeanor or up to one year in the state prison if convicted of a felony. Both a misdemeanor and a felony conviction carry additional penalties, but jail or prison is generally the defining characteristic of a criminal sentence.

Civil penalties may also face an individual accused of stalking his or her intimate partner. Both civil and criminal punishment may be sought against the offender and are not mutually exclusive, which means that an individual accused of stalking may face both civil penalties and criminal prosecution.

The major differences between a civil suit and criminal prosecution for D.V. related stalking are found in the title and role of the accuser, in the “burden of proof” and in the penalties. In a civil case, the victim (who becomes known as the plaintiff) sues the defendant for the “tort” of stalking. In a criminal court, it is the prosecutor who actually files the charge, despite the common misconception that it is the victim who “presses charges.”

The “burden of proof” is the standard that the prosecutor or plaintiff’s attorney must meet to prevail. In a criminal case, the prosecutor must prove that the defendant is guilty “beyond a reasonable doubt,” which is the highest burden. In a civil case, the plaintiff must only prove that the defendant is liable by a “preponderance of the evidence,” which means that it is more likely than not that the defendant stalked his or her intimate partner. Although the burden of proof is higher in a criminal trial, a civil trial requires more evidence. For example, a criminal charge for stalking an intimate partner can be filed based only on the accusation of the victim, yet in a civil trial for stalking, the plaintiff must support his or her allegations with independent corroborating evidence. Another example is that in a criminal case, there is no requirement that the victim asked the offender to stop his or her behavior, but in order to file a civil suit, the plaintiff must have clearly and definitively told the defendant to stop the stalking, unless the defendant was already under court order to refrain from such behavior.

Finally, the penalties in a civil suit and in a criminal prosecution are different. A civil suit penalizes the defendant financially whereas a criminal case can result in jail or prison. A plaintiff sues in civil court for two things – money and sometimes protection. In a stalking case, both would be sought. If a defendant is found liable, he or she could be required to pay the plaintiff “general” damages (damages that are awarded when an exact dollar amount can’t be calculated, an example being pain and suffering), “special” damages (out of pocket expenses for attorney’s fees, hospital bills, counseling, damage to personal property, etc.) and “punitive” damages, which are awarded above and beyond general and special damages to punish the defendant for stalking his or her intimate partner. In addition, if the defendant were found liable, his or her intimate partner would receive a civil protective order that would prohibit further stalking or other types of abuse by the defendant.

Stalking is a serious matter, whether charged criminally or alleged in a civil suit. It is therefore imperative that the accused hires the best attorneys he or she can afford. The criminal defense lawyers at the Kavinoky Law Firm specialize in intimate partner abuse crimes and have successfully represented numerous individuals charged with stalking their intimate partners. Contact them today for a free consultation and/or to ask for a referral for a civil attorney.

The consequences of a California domestic violence stalking conviction

Domestic violence laws, in California, are applicable to all crimes that are committed against one’s intimate partner. Intimate partners are people who have children together, who live together, who are dating or formerly dating and who are married or divorced. The partners may be heterosexual or homosexual. It therefore follows that an individual who follows or harasses and threatens his or her intimate partner, intending to place that partner in fear, will be charged with stalking as a domestic abuse crime. Depending on the circumstances that surrounded the charge, D.V. stalking can be charged as a misdemeanor, punishable by up to one year in the county jail and/or a maximum $1,000 fine or as a felony, punishable by up to one year in prison. Aggravating factors and/or prior convictions will likely result in mandatory prison time for as many as six years.

Imprisonment is perhaps the most frightening part of a sentence, but it is certainly not the extent of what a defendant convicted of intimate partner stalking faces. A defendant who is convicted of any intimate partner abuse crime will usually be placed on probation (which can be informal if charged with a misdemeanor or formal if charged with a felony). Probation generally remains in effect for at least three years. While on probation for a DV related offense, the defendant will have several mandatory terms of probation with which he or she must comply. These terms include, but are not limited to, enrollment and attendance in a batterer’s class, fines payable to specific domestic violence funds, a protective order issued against the defendant and the booking process.

Penalties for an individual convicted of stalking an intimate partner also include counseling, in addition to enrollment in a batterer’s class and possible confinement in a state hospital if the court decides that the defendant would benefit from treatment due to a possible mental illness. Perhaps the most devastating consequence of a domestic violence stalking conviction is that the defendant may be required to register as a sex offender if the court finds that the defendant stalked his or her intimate partner as a result of sexual compulsion or for the purpose of sexual gratification. If the court finds that registration is appropriate, the defendant must register for life and will face additional penalties, including jail or prison time, if he or she doesn’t comply with all of the requirements that coincide with registration.

Professional licensing restrictions may also face a defendant convicted of stalking his or her intimate partner if it can be proven that the stalking was somehow substantially related to the defendant’s job duties. This means that a conviction could potentially end an individual’s career. Along these same lines, firearm restrictions will be imposed upon a stalking arrest and will remain in effect if the defendant is convicted of the charge. Such a restriction could potentially end an individual’s career if that person must carry a firearm as a part of his or her job.

Civil penalties may also face an individual convicted of stalking his or her intimate partner, as the victim may also sue the defendant in civil court for monetary damages and a civil harassment order.

Clearly, the penalties facing a defendant convicted of stalking his or her intimate partner who was prosecuted under California’s intimate partner violence laws are severe and life altering. One’s freedom and reputation is too important to trust to an inexperienced attorney. The criminal defense lawyers at the Kavinoky Law Firm specialize in domestic abuse crimes and have successfully defended countless individuals who have been charged with stalking their intimate partners. The attorneys excel in preparing the most comprehensive defense strategies and will aggressively advocate for alternative sentencing when appropriate. Click here for a free consultation and for the best representation.

Alternative Sentencing and Its Effect on a California Criminal Threats Domestic Violence Conviction

“Criminal threats” is classified as a California domestic violence crime when an individual threatens to commit a crime against his or her intimate partner that would result in death or serious bodily injury if committed. Intimate partners are married, divorced, dating, were formerly dating, living together or have children together. These intimate partners may be heterosexual or same-sex partnerships. If, as a result of the threat, the recipient reasonably fears for his or her safety, his or her intimate partner may be charged with criminal threats as a domestic abuse crime. If convicted, the accused faces up to one year in the county jail or state prison, depending on whether the charge was filed as a misdemeanor or as a felon.

Although imprisonment is the stated penalty for making criminal threats against one’s intimate partner, there are alternative sentencing options that an experienced criminal defense lawyer may be able to convince a judge that would better serve the interests of justice. The unparalleled attorneys at The Kavinoky Law Firm keep current with all of the different sentencing options that are available to their clients who have been convicted of intimate partner abuse charges so that they can effectively advocate for their imposition as an alternative to jail or prison.

Alternative sentencing comprises a variety of options that serve as alternatives to incarceration. The most common types of alternative sentencing that may be imposed in a conviction for making criminal threats against one’s intimate partner in a Domestic Violence case include probation, electronic monitoring, house arrest, community service or labor, counseling in either an individual or group setting, and paying restitution to the intimate partner when possible. These options are by no means the entirety but are the most frequently used alternatives to serving jail or prison time. Depending on which alternative is sought, a skilled attorney may be able to convince the court that alternative sentencing will be more effective in acting as a deterrent to future criminal conduct, as the requested alternative may have a rehabilitative element to it, as opposed to imprisonment which only serves to punish.

When considering whether to impose an alternative sentence to jail or prison, a judge will take into account several factors. The court will want to know whether drugs and/or alcohol were involved in the charged incident or are regularly used by the defendant, whether there were any mitigating or extenuating circumstances that led to the commission of the crime, and whether the defendant suffers from any mental illness. An experienced lawyer knows what facts and circumstances are likely to persuade a judge that alternative sentencing is a more appropriate penalty than jail or prison and will advocate for his or her client accordingly.

A California domestic abuse charge such as “criminal threats” jeopardizes an individual’s reputation, career, family and freedom the minute the accusation is made, especially when a jail or prison sentence awaits. Alternative sentencing can make all the difference, which is why it is imperative that an individual facing a criminal threats charge hires an attorney who is familiar with available sentencing alternatives and knows how to effectively argue for their application. The outstanding attorneys at The Kavinoky Law Firm will do their best to help keep their clients out of jail or prison by proposing creative alternative sentencing options that meet each client’s needs. A skilled defense lawyer can explain the complexities of a California criminal threats prosecution during a free consultation.

Defenses to Violating a Protective Order

There are many effective defense strategies available to fight California domestic violence charges such as violation of a protective order. Protective orders are issued by courts in domestic abuse cases to bar offenders from engaging in specific acts of abuse, re-entering their own homes, or behaving in certain ways.

Any intimate partner can be charged with a California domestic abuse offense, including straight or gay individuals who are married, divorced, living together, have children together, or who are dating or were formerly dating.

Any intentional and knowing violation of a protective order by an individual against his or her intimate partner is a misdemeanor punishable by a maximum penalty of one year in jail and a $1,000 fine. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days, possibly up to one year, and the fine may rise to $2,000. California courts may even punish an offender for violating an order in California that was issued in another state.

The good news is that there are many effective defenses in domestic abuse cases. In an effort to acquit the accused, a good defense attorney will employ as many defenses as he or she can, which all include a thorough review of the facts, witness preparation and effective cross-examination. Altercations between intimate partners are emotional, highly charged incidents that can be interpreted in more than one way. A skilled criminal defense lawyer will ensure that the defendant’s version of events is not only heard by the jury, but believed as well.

Because injury is not a requirement when charging an individual with violating a protective order, any physical evidence and/or eyewitness testimony that supports or negates the charge can be critical to either party. Depending on the circumstances, a good defense lawyer will attempt to either discredit both or alternatively make them favorable to the defense. Similarly, if the protected party sustains no injury and there is no documented proof of the violation or any credible eyewitnesses to the violation, the defense attorney may argue that there is insufficient evidence to prosecute the defendant. A skilled attorney will also know how to address mitigating circumstances that may either reduce or negate the charge. These are just some of the reasons why it is so important to have professional legal representation experienced in this area of the law.

Some other defenses to this crime include legality (was the protective order issued for a lawful purpose?) and knowledge (did the defendant actually know the order existed and have the opportunity to read and/or understand its contents?). Self-defense or the defense of others could be a possible defense, depending on the circumstances surrounding the alleged violation. When an experienced domestic violence attorney reviews the facts of the case, he or she knows how to spot the issues that could ultimately defend his or her client and how to most effectively present them to the court.

Domestic violence statistics reveal that many couples who are involved in an abusive relationship are both victims and both abusers. This means that an accused may also be the victim of his or her intimate partner’s abuse and should not legally bear sole responsibility for the alleged incident. Another example of this power struggle (which is also another common defense) is when the protected party (or so-called “victim”) makes false allegations. A skilled defense attorney knows how to effectively cross-examine a “victim” to prove that the allegations were indeed false and initiated out of anger, jealousy or revenge.

An intimate partner abuse charge such as violating a protective order jeopardizes the defendant’s reputation, livelihood and freedom. In an aggressive effort to acquit their clients, the knowledgeable defense attorneys at The Kavinoky Law Firm will effectively communicate these defenses to the judge and jury. An experienced defense lawyer can outline an aggressive strategy to defend California domestic violence charges during a free consultation.

Domestic violence counseling

In California, when a defendant is convicted on a domestic violence charge, he or she will usually be sentenced to a batterer’s class as a condition of probation. The classes that the court requires are held once a week for a year, although anyone can attend more frequently. These classes are geared towards people who need treatment to help manage their anger and violent outbreaks. With respect to abusers, the goal of counseling is to help them learn to walk away from potentially explosive situations without resorting to violence. To achieve this goal, counselors encourage the abusers to examine their lives to better understand the reasons why they succumb to violent outbursts. If successful, the batterer learns that he or she cannot control his or her relationships through violence.

In addition to mandating a batterer’s class, if the court finds evidence that the defendant was using alcohol or drugs at the time of the violent episode (which, according to domestic violence statistics, is often the case), it may order that the defendant additionally attend a specified number of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings which are free of charge.

Experienced criminal defense lawyers like those at The Kavinoky Law Firm are sympathetic to what their clients are going through when charged with intimate partner abuse. They have successfully defended countless California domestic abuse cases, treating each client with respect and compassion. In situations where the defendant was placed on probation, they helped ensure that their client followed through with each condition of probation so that he or she would ultimately be able to apply to have their criminal conviction expunged. They have many resources available to them to aid their clients in fulfilling their probationary conditions as conveniently as possible.

Counseling is also available to victims of domestic abuse. Victims of intimate partner violence require special care and treatment. Services frequently include private or group therapy, vocational training, and lessons on how a victim can safely flee from a violent partner. The goal of this therapy is to empower the victim to leave an abusive relationship behind in order to secure his or her safety and the safety of involved children.

Oftentimes the accused has also been the victim of abuse by his or her partner. Domestic violence statistics reveal that many couples who are involved in an abusive relationship are both abusers and both victims. This fact applies to both men and women involved in heterosexual and homosexual relationships. When such is the case, it is important that the accused also receives counseling as a victim. The caring attorneys at The Kavinoky Law Firm become closely involved with their clients to make sure they are receiving all appropriate outside assistance. They have referrals for all types of counseling services, regardless of gender or sexual orientation, and they will ensure that their client is referred to an appropriate class where his or her native language is spoken.

Being arrested on a California domestic abuse charge is a serious matter with serious consequences. Trying to navigate this very technical and complex area of the law without the best legal representation is a mistake that can have devastating consequences. Hiring a skilled attorney from The Kavinoky Law Firm as soon as possible after a domestic violence arrest is imperative to a successful defense. Click here for a free consultation.

Professional Licensing Restrictions and the Violation of a Protective Order

Under California’s domestic violence laws, an intimate partner can be charged with violation of a protective order. Intimate partners can be straight or gay and may be married, divorced, living together, have children in common, or currently or formerly dating.

California courts often issue protective orders in domestic abuse cases that bar the offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. Any intentional and knowing violation of a protective order by an individual against his or her intimate partner is a misdemeanor punishable by a maximum penalty of a one year jail sentence and a $1,000 fine.

California courts may even punish an offender for violating an order in California that was issued in another state. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days and the fine may rise to $2,000. In addition, if the accused has prior convictions for violating a protective order, he or she will also likely serve additional mandatory jail time.

When an individual is convicted for this domestic abuse crime, there are several mandatory penalties that will be imposed and other penalties that may be imposed. One of the possible consequences that a defendant convicted of violating a court order may face is a restriction on his or her professional license.

Under California law, a licensing board may suspend or revoke a license if the license-holder has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. It does not matter whether the conviction was the result of a jury trial, a guilty plea, or a no contest plea. This suspension or revocation may take place once the defendant is placed on probation, once the conviction has been affirmed on appeal, or once the timeframe within which to file an appeal has ended. In addition, there are several professional licensing boards that maintain their own standards and practices related to disciplining their license-holders that may be even more restrictive.

In order to defend against a professional license restriction, it helps to have an attorney to argue against its application. An attorney has the knowledge and available resources to articulate why a conviction for violating a protective order (under most circumstances) is not substantially related to the “qualifications, functions, or duties” of the defendant’s job. In addition, the skilled attorney may recognize when the defendant’s employer is unlawfully imposing such a restriction in an effort to inappropriately fire their otherwise competent employee.

If either arrested for violating a protective order or if recently convicted of the charge, hiring an experienced, knowledgeable criminal defense lawyer to help guard against a conviction and/or a possible professional license restriction is by far the smartest defense strategy. The skilled attorneys at The Kavinoky Law Firm can answer any questions about professional license restrictions or any other aspect of a California domestic violence charge during a free consultation.

 

The Definition of Domestic Battery

Domestic battery, is a California offense also known as “spousal abuse” or “spousal battery.” Under California law, battery is a domestic violence crime that applies to intimate partners. Intimate partners can be of opposite or the same genders, married, divorced, living together, have children in common, or be dating or formerly dating.

Battery is a “wobbler” offense, meaning that it can be charged either as a misdemeanor or a felony depending on the facts of the individual case. When charged as a misdemeanor, battery is punishable by a maximum one-year jail sentence and a $2,000 fine.

An individual can be charged with domestic battery even if he or she used only the slightest force. Any unwanted physical touching can result in a misdemeanor battery charge. However, if an individual suffers serious injury, such as broken bones, loss of consciousness or a concussion, the offense will likely be charged as a felony punishable by a maximum of four years in state prison.

Every crime has specific elements that the prosecutor must prove beyond a reasonable doubt in order to obtain a conviction against the defendant. Each element of the charge must be independently proved or else the jury must vote “not guilty.” In order to find the accused guilty of “spousal battery”, the prosecutor must prove three elements.

The first element is that the accused used force or violence upon another. Note that this element doesn’t make any mention of injury. This is because a battery is simply any unwanted touching and has nothing to do with whether or not an injury was sustained by the offended party. The jury must only find that the defendant actually touched the accuser.

The second element is that the use of the force or violence was willful. “Willful” means that the individual had the willingness or desire to use force. Willingness has nothing to do with the amount of force used or the physical result of the force, it only deals with the willingness to simply do the act. In a situation where the accused willfully used the force in self-defense or in the defense of others, he or she is not guilty of a battery. It is the prosecutor’s burden to prove that the willful force was unlawful and not for self-defense or in the defense of others.

The final element that must be proved is that the accused and the accuser were intimate partners at the time of the alleged offense. This means that as long as the parties met the definition of “intimate partners” as defined above (which includes being married, divorced, separated, living together or formerly living together, having children in common, dating or formerly dating) at the time of the battery, the defendant may be convicted of this charge. It is important to remember that the definition of intimate partners includes heterosexual relationships as well as same-sex partnerships.

In a domestic abuse battery case where the victim suffered from serious bodily injury, there is an additional element that must be proved. The prosecutor must be able to show that the injury that the victim sustained was a result of the force or violence that was used by the accused. In other words, it must be proved that the injury wasn’t self-inflicted or caused as the result of an accident.

A California domestic battery accusation is a very serious matter. Facing a domestic violence charge can be devastating emotionally and financially, and a conviction carries severe penalties. To best avoid these consequences, it is imperative that an accused hires a skilled criminal defense lawyer who knows the most effective ways to refute this crime’s elements. In order to secure the best representation from a firm who has successfully defended countless intimate partner abuse cases, contact the experienced attorneys at the Kavinoky Law Firm for a free consultation.