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.

Hearsay and 911 Calls in a Sexual Battery Case

Sexual battery is a domestic violence offense that can be charged against any intimate partner in a California domestic abuse case. The term “intimate partners” is defined very broadly under California domestic violence law – the partners can be gay or straight, married, divorced, currently or formerly living together, have children together, or be dating or formerly dating.

Touching an intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse can result in a sexual battery charge. Any physical contact – however slight – can be considered touching, even if it occurs through the clothing of either partner. Even an individual involved in an ongoing relationship can face sexual battery charges. Depending on the circumstances, the crime 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.

With such severe consequences, a sexual battery charge is no joke. That is why it is imperative for the accused to hire an attorney who is knowledgeable not only with respect to California domestic abuse crimes but with the types of evidentiary issues that frequently arise during these types of trials. The experienced criminal defense lawyers at the Kavinoky Law Firm have successfully defended countless individuals in sexual battery cases because they receive ongoing training and education about intimate partner abuse cases and the issues that commonly surround these types of cases. They know how to argue for admission or exclusion of hearsay and 911 evidence to provide the most effective defense for their clients.

“Hearsay” is a legal term that refers to statements that were made out of court that are later offered in court as evidence of their truth. Although hearsay evidence is generally inadmissible in criminal proceedings, there are exceptions to that rule, and intimate partner violence cases are one of those exceptions. Under California law, hearsay statements, including 911 telephone calls, are relevant in domestic abuse cases. This exception admits into evidence statements made by the complaining witness at the time when he or she was experiencing or witnessing the violent act or acts that are the subject of the case.

The rationale behind this exception is that the spontaneity of such statements and the lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness. Clearly this isn’t the case in reality, as many 911 calls have been placed under false pretenses and based on underlying motives such as anger, revenge and jealousy. Nonetheless, these statements are admissible into evidence and, in a vigorous effort to convict the defendant, the prosecutor will seek to have the investigating officer read the alleged victim’s statements to the jury and will also ask the judge to play the recorded 911 call for the jury. However, even the exceptions have exceptions, which is why it is so important to have professional legal representation that is familiar with this area of the law.

Because of the highly complex and technical rules (and exceptions to those rules) that come into play in a California intimate partner abuse case, having a skilled and qualified defense lawyer who knows how to exclude or downplay this type of evidence is critical. The attorneys at the Kavinoky Law Firm have both the knowledge and experience to aggressively tackle any issue that may arise in a sexual battery case. Whether the allegation stems from an intense, emotional dispute that took a turn for the worse, from a false report, or from a simple mistake, professional guidance can help ease a difficult situation. When things are at their worst, the attorneys from the Kavinoky Law Firm are at their best! A defense lawyer experienced in California domestic violence cases can outline a strategic defense plan during a free consultation.

Battered person’s syndrome and its effects on the accused in a California domestic violence stalking trial

Stalking, in California, will be charged as a domestic violence crime when it is committed against one’s intimate partner. Intimate partners are persons, regardless of their sexual orientation, who are married, divorced, dating, formerly dating, living together or who have children in common. When an individual willfully and maliciously follows or harasses and threatens his or her intimate partner with the intent of placing that partner in fear, he or she will be charged with stalking as a domestic abuse crime.

In an intimate partner abuse stalking trial, a recognized psychological condition known as the battered person’s syndrome, more commonly called battered woman’s syndrome, battered women’s syndrome, B.W.S. or BWS, may be introduced as evidence against the defendant to explain the victim’s behavior or actions. This condition is commonly introduced when the victim either recants his or her allegations or refuses to cooperate with or testify for the prosecution.

Battered person’s syndrome is a theory that explains why abused individuals don’t leave their abusive intimate partners. Although the theory was developed with victimized women and abusive men in mind, it applies to both heterosexual and homosexual men and women who are victimized by their intimate partners. The syndrome explains that a severely or consistently victimized person will be unable to leave his or her partner because he or she will have been conditioned to feel helpless and will feel that escape is impossible and that the abuse is inevitable. The abused partner basically blames him or herself for the abuse.

In a stalking case that was filed as an intimate partner abuse crime, the prosecutor may hire an expert witness who will testify about the effects of the battered person’s syndrome if the alleged victim either refuses to testify or changes his or her story from the original allegations that were made to the police or prosecutor. When this type of evidence is introduced, it is against the accused and basically paints a picture for the jury that the defendant has repeatedly and severely abused his or her partner. This is one reason why it is critical for a person accused of D.V. stalking to hire a criminal defense lawyer who is familiar with battered person’s syndrome, should it and its effects be introduced at trial.

The experienced attorneys at the Kavinoky Law Firm specialize in intimate partner violence cases and have successfully defended countless individuals charged with stalking their intimate partners. They understand the many evidentiary issues that are frequently raised in these types of trials and know what arguments to make to try to exclude evidence that is damaging to their clients and how to downplay or refute the evidence if it is admitted. They work with a team of expert witnesses who they use to rebut battered person’s syndrome when it is introduced against their clients.

Battered person’s syndrome, the prosecutor’s expert will testify, is the reason that an alleged victim has recanted or refused to cooperate. The expert will tell the judge and jury that the defendant’s intimate partner has been so abused or threatened, that he or she has recanted out of fear for what the accused would do to that partner if he or she didn’t take back or deny his or her original accusation. If that testimony is given, a skilled defense attorney will have a defense expert witness rebut that testimony by offering the judge and jury the many legitimate reasons that an alleged victim may recant his or her original accusation.

The outstanding attorneys at the Kavinoky Law Firm receive training about battered person’s syndrome and how it can be introduced and refuted in an intimate partner stalking case, which has helped lead to their impeccable reputation. If charged with stalking an intimate partner, click here for a free consultation.

Stalking as a California Domestic Violence Crime

Stalking, when committed against one’s intimate partner, will be prosecuted as a domestic violence crime in California. California defines intimate partners as married, divorced, dating, formerly dated, having children together or living together, regardless of whether they are heterosexual or same-sex partnerships. When an individual willfully, maliciously and repeatedly follows his or her intimate partner and makes a threat, intending to place that partner in fear, he or she faces up to one year in jail and a $1,000 fine, depending upon whether it is charged as a misdemeanor or a felony. The prison time would be at least two years and as many as four years if the accused commits this crime while named in a protective order or may be raised to a maximum of five years if he or she has a prior conviction for stalking or prior convictions for infliction of injury, violation of a protective order or for making criminal threats.

California law prohibits an individual who has been charged with stalking to be released from custody without first having a bail hearing. At a bail hearing, a judge considers the defendant’s flight risk, his or her prior criminal history, the increased risk to the victim of the crime and the facts of the pending case to determine whether to release the defendant on his or her own recognizance (commonly called OR) or to increase or reduce the scheduled bail amount. The defendant is more or less presumed guilty by the judge during this phase of the proceedings, which is why it is imperative that the defendant hires an experienced criminal defense lawyer from The Kavinoky Law Firm to help persuade the court that either reducing bail or releasing the defendant O.R. will best serve justice.

In an intimate partner abuse case such as stalking, a judge will typically deny an OR release, thereby requiring the defendant to post bail in order to get released from custody. He or she can either post cash bail or post a bail bond. Posting cash bail is rare, because few people have enough money to pay the full amount of their set bail. When cash bail is posted, it will be returned to the defendant within 60-90 days after the case is resolved if the defendant attended every single court appearance. If, at any time, the accused failed to appear for court, the cash bond may be forfeited to the court.

A bail bond is more typically used to post bail than cash bail. When obtaining a bail bond, the defendant enters into a contract with a bail agent. In exchange for a fee (usually 10% of the bail amount), the bail agent (or bondsman) agrees to post the full bail amount for the defendant. The agent will usually require additional “collateral” which is an item of great value, usually a house or a car, to further secure the bond. If the defendant makes all of his court appearances, at the conclusion of the case, the bond will be exonerated and the collateral will be released. If the defendant flees, his or her collateral will become the property of the agent.

Because the consequences of a stalking conviction are so serious, it is vital that the accused hires a skilled defense attorney as soon after his or her arrest as possible so that the attorney can fight for the defendant throughout the entire criminal court process. The rules pertaining to a Domestic Violence stalking charge are specific and technical, which is why it is so important to retain representation that is experienced in this area of the law. The unparalleled attorneys at The Kavinoky Law Firm have successfully defended countless individuals accused of stalking. To secure the best representation, click here for a free consultation.

Aggravating Factors with Violating a Protective Order

Violation of a protective order is one of the charges that can be brought under California’s domestic violence laws. Domestic violence laws apply to crimes where the suspect and accuser are intimate partners. California domestic abuse laws define “intimate partners” very broadly – they may be married or divorced, cohabiting, have children in common, or be currently or formerly dating. These laws apply to both heterosexual and homosexual couples.

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 of a one-year jail sentence and a $1,000 fine. Protective orders include orders issued by the court that 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 may even punish an offender for violating an order in California that was issued in another state. In addition, if the accused has prior convictions for violating a protective order, he or she will also likely serve mandatory jail time.

There may be facts and circumstances that surround the alleged violation that could be considered “aggravating factors” and will, in turn, force a court to impose additional sentencing if the suspect is found guilty of the crime. This is simply another reason why an accused should always hire an experienced attorney when charged with a crime. The skilled criminal defense lawyers at The Kavinoky Law Firm have experience in defending California domestic abuse cases. They are familiar with this special area of the law and will both aggressively defend the charges and do their best to keep all penalties to a minimum by arguing the injustice involved in imposing additional penalties.

There are two common aggravating factors that are frequently connected to violating a protective order. The first deals with injury. If the protected party sustained any physical injury (no matter how slight) as a result of the defendant violating the protective order, 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. There are circumstances, however, where the defendant would only have to serve 48 hours in jail, which is another reason why it is important to have professional legal representation. An experienced lawyer who is familiar with the intricacies of violating a protective order will attempt to persuade the court to reduce the mandatory 30-day sentence in the interests of justice, or may propose alternative sentencing as another option, based on the facts and circumstances of the individual case.

The other common aggravating factor seen in connection with violating a protective order is when the restrained individual owns, possesses, purchases or receives a firearm when his or her court order specifically prohibits such actions. The penalties are similar (a one-year maximum jail sentence and up to $1,000 in fines), with the difference being that the one-year sentence can be served in either jail or prison. Because of the seriousness that is inherent with firearm possession, a court may be more likely to impose a jail sentence under these conditions.

Before the court sentences a convicted defendant, it will hear from both parties as to whether there were any mitigating or aggravating circumstances that it should consider. When the prosecution presents aggravating circumstances, the court will generally impose the strictest available penalty unless a good defense attorney is able to dissuade it from doing so. When aggravating circumstances exist, it is critical that the accused contact an attorney who has the knowledge and skills to effectively convince the court that to add an additional sentence would be against the interests of justice. The attorneys from The Kavinoky Law Firm have successfully defended countless individuals who were facing intimate partner abuse charges. An experienced attorney can answer any questions about a charge of violating a protective order during a free consultation.