Domestic Violence and Orders of Protection in Illinois
Domestic violence is no joke. It happens to families from all walks of life. Rich and poor. Educated and blue collar. White, black, and brown. It can happen to anyone.
I am a strong advocate for victims of domestic violence in Orders of Protection. Obtaining an Order of Protection or No Contact/No Stalking Order, commonly referred to as restraining orders, is a lot more complicated than it should be. The rules of evidence and court procedures must be followed by everyone, including victims of domestic violence. It takes years of training and hearing experience to perfect the tools to win cases in court. In the last 6 years, I’ve represented dozens and dozens of people and gone to hearing 23 times, winning 19 of them. I have a proven track record fighting and advocating for people on both sides of the equation.
Charged with Domestic Battery
For those accused of domestic battery, the consequences can be severe for even the slightest of charges. You CANNOT receive supervision if you are guilty of domestic battery. A conviction stays on your record for life and can be used to enhance any future domestic battery charge to a felony.
Domestic battery, contrary to popular belief, comes in so many different shapes and sizes:
- Husband charged against wife
- Wife charged against husband
- Boyfriend charged against girlfriend
- Girlfriend charged against boyfriend
- Father charged against son
- Son charged against father
- Brother charged against brother or sister
- Sister charged against sister or brother
- Aunt charged against nephew
- I can go on for dozens of combinations. The point is, domestic battery encompasses a lot more than you think. And there is always more than one side to the story.
What is Domestic Battery?
There are are two kinds of domestic battery charges:
- Making contact of an insulting or provoking nature – examples: touching, grabbing by the shirt, pushing, grabbing arms
- Making contact causing bodily harm – examples: punching in the leg causing a bruise, striking in the face and breaking skin or bruising, pushing to the ground causing a scraped knee
There are so many kinds of actions that can lead to a domestic battery charge and the consequences can be harsh right from the moment you get charged.
When you get arrested for domestic battery:
- You are taken to jail for the night until 8:00 am right’s court the next morning for your initial court appearance.
- At the initial court appearance, a monetary bond may be set that you must pay to be released.
- You will be ordered to surrender any firearms that you own to the police until the case is over.
- You will be ordered to stay away and make no contact with the victim for at least 72 hours from release, and possibly for the duration of the case, which could be months and months. This includes phone calls and texts.
- You may be ordered to pay for and complete an evaluation within 14 days of release.
- You might need to find somewhere else to live.
- You might lose your job simply for being arrested.
- You are not allowed to leave the state of Illinois without written permission from the judge.
- You must appear at multiple future court dates at 9 am during the work week.
This is all before you get your day in court.
Consequences of Domestic Battery
Domestic Battery is a class A misdemeanor, punishable by up to 364 days in jail and up to a $2,500 fine or both. You cannot receive supervision if you are guilty and a conviction must enter on your record if you are found guilty or plead guilty to domestic battery. This is a very serious offense with numerous collateral consequences, including the potential to impact your job, housing, 2nd amendment rights, and your professional licenses.
A conviction for Domestic Battery can also be used to enhance any future Domestic Battery charges to a felony.
Domestic Battery – Felony Eligible
Class 4 Felony
A Domestic Battery charge can be enhanced to a class 4 felony if you have 1 or 2 prior Domestic Battery convictions. There is a long list of offenses that may lead to felony eligibility of a Domestic Battery charge.
Maximum Sentence: 1-3 years in prison and up to a $25,000 fine
Minimum Sentence: 72 consecutive hours in jail
Class 3 Felony
A Domestic Battery charge can be enhanced to a class 3 felony if you have 3 prior Domestic Battery convictions.
Maximum Sentence: 2-5 years in prison and up to a $25,000 fine
Class 2 Felony
A Domestic Battery charge can be enhanced to a class 2 felony if you have 4 prior Domestic Battery convictions.
Maximum Sentence: 3-7 years in prison and up to a $25,000 fine
Aggravated Domestic Battery
Class 2 Felony
A person who, in committing a domestic battery, knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery. 720 ILCS 5/12-3.3
You may also be charged with aggravated domestic battery if, in committing a domestic battery, it is alleged that you strangle another individual. “Strangle” means intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual.
Maximum Sentence: 3-7 years in prison and up to a $25,000 fine
1st Offense: 60 consecutive days in jail
2nd Offense: 3 years in prison
Orders of Protection
An Order of Protection (“OP”) is a civil order barring any and all contact with one or more individuals, their residence, and usually a 200 or so foot stay away order. An OP can be obtained by anybody who alleges that a family or household member is harassing, abusing, stalking, or threatening abuse to them.
Family or Household Member
This includes spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling (aka roommates), persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, and persons with disabilities and their personal assistants and caregivers.
After drafting a petition, a person requesting the OP goes in front of a judge and describes why they need the OP, and the judge will do one of several things:
Deny the request outright.
Deny the request for emergency relief and set the matter for a hearing.
Grant the request for emergency relief and issue an Emergency Order of Protection and set the matter for hearing within 21 days.
If an Emergency Order of Protection is issued, it will be served on the Respondent. The protections begin once a Respondent is served with the Order by the Sheriff.
No Contact/No Stalking Order
This type of order is essentially the same thing as an Order of Protection. However, this is the type of Order used when the individuals are not family or household members or have no prior dating relationship.
Some common examples of when a No Contact Order is used:
The person asking the Court for an OP.
The person being barred from making contact.
Anybody that is protected by the terms of the OP. This can include children or elderly individuals if they are unable to request an OP themselves.
If the Respondent is served and fails to appear AND the Petitioner shows up and asks for a 2 year Plenary Order of Protection, it will most likely be granted.
If the Petitioner does not appear at the hearing date, the Judge will dismiss the request for an Order of Protection.
If both parties appear, the Judge will conduct a hearing to determine if extending the Emergency Order of Protection is necessary. If the Judge decides the Petitioner has proven their case, they will issue up to a 2 year Plenary Order of Protection. The Judge may not be convinced after a hearing and deny the request for a Plenary Order of Protection.
If your case goes to hearing, the Judge will enforce the Illinois Rules of Evidence and the Illinois Code of Civil Procedure while conducting the hearing. Only an attorney experienced in contested hearings can properly advise if you should consider hiring an attorney for your case.
What happens if an Order of Protection or No Contact Order is granted against me?
If you are the Respondent in Order of Protection or No Contact proceeding, you are barred from making any and all contact with the protected parties and their residences and places of employment by direct or indirect means, including through third parties, and are usually required to stay at least 200 feet away from any protected party, including in public. You may experience collateral consequences, such as an impact on your employment or a revocation of your FOID card all prior your day in Court.
Furthermore, if a violation occurs, you may be charged with a class A misdemeanor of Violation of an Order of Protection. This charge requires that you spend the night in jail and go in front of a Judge the next morning before you are released.
What if you are facing criminal charges and an Order of Protection or No Contact Order? Anything you say in the civil proceeding can be used against you in the criminal case. Gun owner? Are you okay with your 2nd amendment rights being taken away?
Make sure you are prepared for what you are facing and protect your constitutional rights by hiring an experienced domestic violence attorney. Simply fill out the form below for a free consultation.