Johnson County Domestic Battery Lawyer
Domestic Battery is commonly charged in Johnson County, Kansas. In fact, it is one of the most common crimes than an average person is likely to be charged with in their life. Aside from DUI, there are more domestic violence cases than any other type of criminal cases. The simple fact of the matter is, if you find yourself charged with a domestic battery, you're not alone. If charged with Domestic Battery, you probably have several questions about what you're facing and how to handle the situation. Follow these simple rules to set yourself up for success in your case, written by a skilled domestic battery attorney in Overland Park.
Calm down. You're in a tough situation but being emotional will only lead to poor decision making. Making emotional decisions without thinking out your case strategy first will make your domestic battery case more difficult. Now is the time to play chess not checkers.
Keep your mouth shut. Don't talk to anyone about the situation other than a lawyer. Telling other people about the problem can't be undone. You don't want to create witnesses but you also don't want to start up the rumor mill. There may be a time to talk about it down the road, now isn't that time. You never know who is your friend today but might have something to gain by divulging your information down the road.
Get in contact with a lawyer. Now is the time to lawyer up, we are talking about a serious problem that can have life-long consequences. You need to treat an arrest in the same way you would if you found out you had a health problem. If you found out you had cancer you wouldn't hire the cheapest and most convenient doctor you found, you would do some research and hire a doctor that specializes in cancer treatment. Same with picking a lawyer, do your research and be prepared to pay for an expert. Be sure that you hire a domestic battery attorney, just because you "really liked" your divorce attorney, doesn't make them qualified to practice criminal law.
Listen to the lawyer you hired. If your lawyer gives you advice, listen to it. It makes no sense to hire an expert and then not follow their advice. If you trust your lawyer and do what he or she says you will get a better outcome. You will also, almost certainly save your self money and heartache by listening to your attorney. You're attorney has been in these waters before, let them guide you.
Below is a list of some common questions that people generally have when facing a domestic battery charge, feel free to read up on the charge or call to speak to an experienced lawyer.
What is domestic battery?
According to Kansas Law, domestic battery is knowingly committing an unprivileged touching in a rude angry or insulting manner to one’s spouse or former spouse, girlfriend/boyfriend or any person in which you are having or have had an intimate relationship with. In Kansas, a domestic battery case can be charged as either a misdemeanor or a felony depending on the assessment of the case by the prosecutor. The prosecutor will usually charge it as a misdemeanor unless there are some aggravating factors present in the case. Here are some examples of factors that could lead the prosecutor to charge you with a felony instead of a misdemeanor.
The abused/victim has suffered grave injuries that are potentially life threatening.
A dangerous weapon such as a knife or a gun was used during the fight or was used in threatening violence to the abused/victim.
There are past criminal records that indicate a violent past and/or there have been previous domestic violence conviction in the defendant's past.
Remember, the State prosecutor has wide discretion if charges will be filed against a defendant, they also have discretion as to what charges will be filed. The alleged victim is not the person, "pressing charges" against a defendant, only the State prosecutor has the power to charge someone with a crime.
What do I need to know if charged with Domestic Battery?
When you look at the domestic battery statute, it is long and difficult to understand. Take a look:
Domestic battery. (a) Domestic battery is:
(1) Knowingly or recklessly causing bodily harm by a family or household member against a family or household member; or
(2) knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.
(b) Domestic battery is:
(1) Except as provided in subsection (b)(2) or (b)(3), a class B person misdemeanor and the offender shall be sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the offender to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program;
(2) except as provided in subsection (b)(3), a class A person misdemeanor, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a second time and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program. The offender shall serve at least five consecutive days imprisonment before the offender is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections; and
(3) a person felony, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a third or subsequent time, and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $7,500. The offender convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the offender has served at least 90 days imprisonment. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections. If the offender does not undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, the offender shall serve not less than 180 days nor more than one year's imprisonment. The 90 days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program.
(c) As used in this section:
(1) "Family or household member" means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. "Family or household member" also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and
(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(A) "Conviction" includes being convicted of a violation of K.S.A. 21-3412a, prior to its repeal, this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(B) "conviction" includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(C) only convictions occurring in the immediately preceding five years including prior to July 1, 2001, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and
(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.
(d) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section or an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits only twice during any five-year period.
What it really comes down to is that a person can be found guilty or convicted of domestic battery if there is an unprivileged or unwanted touching between household members or a romantic couple if done in a rude, angry or insulting manner. It is a quite a bit different than most people think.
Most people think that for a domestic battery, there is going to be someone with physical bodily injuries, such as a black eye or somebody got pushed down and was injured. For a regular domestic battery, this is not what usually happens. People get into an argument, someone calls the cops, and a person makes the mistake of admitting there was physical contact because they think they have not done anything wrong. In most cases, all it takes is a touch. It can be as simple as putting a finger on your wife, your husband, your significant other in a fight, and just one finger can get you arrested for a domestic battery charge.
Why did I get arrested if my spouse doesn't want to "Press Charges?"
It doesn't matter if the victim wants to press charges or not. You may notice that on every single document that is filed with the court in your case it reads, "The State of Kansas...vs Defendant," it says that because the State of Kansas is pressing charges, not the victim. This is perhaps the most difficult thing for people to understand, it's not you vs the victim. It is the State vs You. This is wildly misunderstood because of TV shows and how the police officer nearly always asks the victim, "Do you want to press charges?" In reality, the State is the entity that decides if charges are brought against someone not the victim.
In many cases the alleged victim has no intention of getting the defendant in trouble, they do it by mistake. Most people are taught from an early age that if you get lost or need help, "Go find a policeman and tell them you are lost." This leads many people to believe that law enforcement is there to help solve their problems or to "calm things down" when a situation gets out of control. They aren't, they are there to investigate crimes and arrest people. Read. "Rethinking the role of the Police in our Communities" an article I published in the Kansas City Business Journal.
How serious is a Domestic Battery charge in Kansas?
Domestic battery in Kansas is no joke. It carries with it ancillary consequences besides just having to go to court and deal with a possible conviction, probation or being put in jail. There are other collateral consequences that impact your rights to carry or have a firearm. It also carries with it the negative stigma associated with domestic battery. Ninety-five percent of the people that contact an attorney after being charged with domestic battery have no idea that what they did was a domestic battery. Most people are under the mistaken impression that there needs to be some sort of physical harm, a bloody nose, someone with a black eye, something like that. However, that is not the case.
When someone comes in with charges of domestic battery, usually, it is the person’s first offense for any type of crime. They are just getting ready to go down the rabbit hole of finding out how much trouble they are in.
A first time domestic battery charge is simply going to be a Class B misdemeanor. That does not sound like a big deal. However, because there is so much negative stigma associated with domestic battery, and it has ancillary consequences of losing constitutional rights, every time there is domestic battery allegation and someone gets arrested it’s a big deal. When a person gets arrested for domestic battery, they may spend the night in jail before they can get in front of a judge, and most people are not used to being thrown in jail.
After that, when they go in front of a judge, there is a state statute that prohibits the parties from having contact for seventy-two hours. When this happens the defendant will have a couple of days of not being able to even contact their spouse. In theory, the idea of no contact sounds good. This gives the parties time to cool down. When they take that into the real world, people have bills they have to pay. They have work they have to go to; they have kids they have to deal with. They have all these things they have to do as a team that all of a sudden is left to one person and the other person cannot reach out to help. All of a sudden, it is on one party to do everything and they cannot even contact the other party to split things up or to even communicate, “You get the kids this day and I’ll get the kids tomorrow.”
Since the defendant is going to be barred from contact, they are going to be barred from staying at the marital residence for that first seventy-two hours. This basically means they are homeless. When someone gets arrested, they never get arrested with their wallet, keys and everything ready to go. This means that when they get out of jail, they are in this huge problem because they have seventy-two hours where they cannot go home. Usually, the person will be out on bond. They will have to try to deal with that alone. They cannot talk to their most important partner in helping them, and they are trying to get hold of family or friends to bond them out. Then a person that is charged with domestic battery, they are going to be under bond conditions with possibly bond supervision. That means they basically have to be on probation while they are on bond. They are not going to be able to drink, they are not going to be able to have guns and they are not going to be able to stay at their regular residence for at least those seventy-two hours.
A lot of times, the judge will order just a straight no contact between the parties for an indefinite period of time. This means they might be going from talking to their wife everyday, to not at all and then dealing with not talking to kids for a month or two. Imagine what that does to their entire world. T
How common is it for an ordinary person to get charged with Domestic Battery?
It scares most people when they actually find out how easy it is to get into trouble. I would say eighty to ninety percent of people who come in for a consult with an attorney for such a matter are regular everyday people. They could be a lawyer, teacher, doctor, or someone from any walk of life. It is very common for people to find themselves charged with a domestic violence offense.
What are the most common scenarios you see where Domestic Battery charges are filed?
Johnson County has a very strict policy on domestic battery. An average domestic battery is a difficult thing to quantify, but in general it starts with mom and dad get into an argument and somebody is usually intoxicated, and things get out of hand. It can be a fight, it can be anything. I have seen people get a battery charge over a board game. People just get mad over something stupid and then next thing you know the cops get called.
The overwhelming majority of the time, people do not intend for their spouse or their significant other to get in trouble. They call the cops because they think that is the right thing to do at the time. They are excited or they may want to put some fear into the person that has touched them. Unfortunately, most jurisdictions policy is; If there is any evidence of domestic battery, someone is going to jail. Once you are in the system, it goes from there.
Are Domestic Battery charges filed along with Divorce cases?
The two go hand-in-hand sometimes but is not as common as you might think. In a relatively low percent of the divorces there is going to be some sort of domestic violence involved. However, when domestic battery occurs it can be the catalyst for ending a relationship. A lot of the time, a criminal offense ends up being the straw that broke the camel’s back; “he laid his hands on me” or “she laid her hands on me.” They talk to their families, who then encourage them to get out of an unhealthy relationship.
Can a Domestic Battery charge be used against someone falsely over things like Child Custody?
It happens. Some people will try to use it as leverage. For example, I once had a case where it was clear that the lady was trying to manipulate the system to get her husband out of the house during the divorce proceedings. She wanted him out of the house. Since there is a local rule in Johnson County that says you cannot kick the person out of the marital residence during a divorce, the only exception to that is if there is if there is an allegation of domestic abuse.
In that case, both people already knew, “The marriage is over practically”. The husband and wife are spending the night in different rooms, different parts of the house. They do not talk to each other anymore, but they are still living together while a divorce is in the process. Then one of the parties decides, “I want to do whatever I can to get this person out of their house.” They go to their divorce lawyer and the divorce lawyer says, “Well, you can’t. The only way that’s ever going to happen is if there is a domestic abuse allegation”. Next thing you know, very conveniently, there is an allegation of domestic abuse.
In these types of case, a judge will often grant one person sole occupancy of the marital residence during the divorce. That can get manipulated and it is also makes one person fight on two fronts. Instead of having to fight not only the divorce case, they are fighting the state’s case trying to put them in jail, while at the same time they are fighting their divorce case. It is a kind of divide and conquer tactic that a lot of people will try to use. If you need a domestic battery attorney, look no further. We at Roth Davies have skilled domestic battery attorneys ready to hear your case.
What are the possible punishments if found guilty of a domestic battery charge?
If the charge was a misdemeanor, the possible punishments are:
Imprisonment up to 6 months on a first offense (Class B misdemeanor)
Imprisonment up to 12 months on a second offense (Class A misdemeanor)
Probation and mandatory domestic violence rehab program completion.
Testing for Drugs and Alcohol
Fines, fees and court costs.
If the charge is a felony, the possible punishments are:
Level 4 = 36-172 Months Imprisonment
Level 5 = 31-136 Months Imprisonment
Level 7 = 11-34 Months Imprisonment
Level 8 = 7-23 Months Imprisonment
The judge has the discretion in deciding the punishment and jail time for any domestic violence cases. The judge will base the punishment on three factors, 1) the severity of the case 2) the criminal history of the defendant 3) any mitigating or aggravating facts presented to the judge.
Domestic Battery is a serious offense that carries serious jail time but more importantly, it can tarnish a person’s credibility and reputation. It can also affect employment prospects in the future as well as housing opportunities. So it is important for any defendant charged with a domestic violence charge to do everything possible to avoid a guilty verdict. The guidance and help of an lawyer on domestic violence cases can be the very thing that saves you from being found guilty of the offense.
If I am convicted of Domestic Battery will I lose my firearm rights?
In Kansas, most first time domestic violence related offenses are misdemeanors. In general, misdemeanor crimes are not as severe as most other types of crimes. The worst punishment that a person can receive on a misdemeanor crime is one year in the county jail. However, depending on the type of misdemeanor you are charged with you may have a lot more at stake than you think including losing one of your constitutional rights. Federal law prohibits purchase and possession of firearms and ammunition by someone that has been convicted of a crime involving domestic violence (even a misdemeanor charge involving domestic violence).
Legislation prohibiting the sale or possession of firearms by those with a domestic violence conviction was signed into law in 1996 and is commonly known as the “Lautenberg Amendment.” How the Lautenberg Amendment defines “domestic violence crimes,” is any misdemeanor crime that is against state, federal or tribal law in which the use or attempted use of physical force or threatened use of a deadly weapon is an element to the crime. The Lautenberg Amendment also requires that the defendant be in a domestic relationship with the victim, in the context of this law domestic relationship is very broadly defined.
If you look at the most common domestic violence offense in Kansas, Domestic Battery, you will see that the definition of a “domestic violence crime,” in the Federal law is arguably met. Kansas defines domestic battery in two ways:
Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or
Intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.
Both of these definitions arguably meet the definition of “domestic violence crimes,” as delineated in the federal law. In just a relatively short time (20 years) since the federal legislation was signed into law it has dramatically impacted the populations ability to legally obtain firearms. In fact, the baring of firearm purchases by the Lautenberg Amendment is the third most common reason that people are denied the ability to purchase a firearm only surpassed by denial because of a felony conviction or an open arrest warrant. Hundreds of thousands of people in the United States have attempted to legally purchase a firearm and been denied because of the Lautenberg amendment.
Many states have enacted their own laws that are more restrictive than the federal law that prohibit the possession or purchase of firearms. Dozens of states have made more restrictive laws, to date Kansas has not enacted any.