Category: Domestic Violence

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Another NFL Player Domestic Violence Arrest

Sadly, it comes as no huge surprise another NFL football player was arrested for domestic violence.  For some time now, domestic violence has been an increasing problem for the National Football League (NFL). Many advocates to reduce the amount of violence claim the professional football teams are not doing enough to penalize players accused of violence off the field.

Due to this pressure, and significant amount of publicity with violent crime and the NFL, the National Football League recently updated their personal conduct policy to try and address some of the criticism. However, domestic violence by players continues to plague the sport today.

Ray McDonald Dropped from the Bears

The Chicago Bears released Ray McDonald after arresting him on domestic violence charges in Santa Clara, California. McDonald was a major part of the Bears defense strategy for the season, but after this arrest, they chose to let him go.

Police arrested the 30-year-old defensive end after he allegedly assaulted a woman inside his apartment. The incident took place sometime before 4 a.m. on a Monday morning. According to police reports, McDonald allegedly broke down a bedroom door to get to his former fiancée and their infant child.  when the police arrived, McDonald was not on the scene.

The Santa Clara police department issued McDonald a restraining order for the protection of his fiancée and child.

However, on Wednesday, police arrested McDonald for a second time in a week for violating the restraining order.

Santa Clara detectives found him in a Togo’s sandwich shop in Santa Clara and booked him in a San Jose jail. He reportedly made bail, for $5,000. According to his attorney, they did not know about the restraining order.

A History of “Poor Decision Making”

This wasn’t the first time the defensive lineman was in trouble with the law. This was his third arrest in 9 months. In August 2014, police arrested McDonald on suspicion of domestic violence. In December of the same year, he was arrested for alleged sexual assault. McDonald defended the sexual assault claims as being consensual and filed a defamation suit. Although the victim did not file criminal charges, the 49ers dropped him from the team, citing “a pattern of poor decision-making.”

Then, the Bears picked him up. Despite his past arrests, based on a solid conversation, the team trusted he would behave. This did not happen. According to the team General Manager, Ryan Pace:

Bears Tweet 1Bears Tweet 2

Revised Personal Conduct Policy

In late 2014, the NFL teams introduced a revised Personal Conduct Policy. Aimed at addressing domestic violence and sexual assault, the NFL put their heads together to bring about new order . The hope is this new policy will increase accountability and decrease criminal acts. The policy includes funding for counseling of victims as well as violators as well as provides guidelines for independent investigative procedures.

Unfortunately, even with increased penalties, NFL players continue to break the law. The San Diego Union-Tribune keeps a running tally of arrests and citations involving NFL players. There are exactly 38 recorded arrests for crimes more harmful than a speeding ticket in 2015 alone.

We have the best criminal attorneys on hand to answer your calls and walk you through your individual situation 24/7.  We do our research so you can rest easy.

Because no one looks good in handcuffs #unlessyoureintothatsortofthing

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Some Forensic Science Found to be Less Than Scientific

A Test of Bad Forensic Science

Before the advent of DNA testing, U.S. law enforcement relied on a number of different bad forensic science techniques to connect people to crimes. Such as, handwriting samples, microscopic hair analysis, and even bite marks. As may be expected, some of these sciences are not always completely accurate.

Recently, the FBI teamed with the Department of Justice (DOJ), the National Association of Criminal Defense Lawyers (NACDL), and the Innocence Project. The teams released an announcement that they concurrently and separately reviewed microscopic hair analysis cases. The result of these cases is disconcerting. In fact, it’s downright alarming.

A Difference of Opinion

According to the FBI’s press release:

“FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions’ case.”

As Slate Magazine so aptly puts it: “The FBI faked an entire field of forensic science.” The result is, according to University of Virginia law professor Brandon L. Garrett, a “mass disaster.

The “faked,” or bad forensic science involved microscopic examinations of hair found at the scene of a crime, as well as the hair of a suspect. In fact, this was a common practice of law enforcement for nearly thirty years. That is, until 2000, when the FBI started examining full DNA rather than just the hair itself. The DNA analysis works much better.

In reality, the microscopic hair examination technique barely worked at all, if ever. Even the Committee on Identifying the Needs of the Forensic Science Community called the practice “highly unreliable.” Nonetheless, FBI forensic experts commonly testified in trial that the technique not only worked, but was enough to prove a suspect’s guilt.

Too Many Defendants

According to the FBI’s own report, too many scientists miscalculated the results. Twenty-six out of twenty-eight forensic scientists in the microscopic hair comparison unit “overstated forensic matches in ways that favored prosecutors.”

After examining hair found at a crime scene, the scientists compare it to a suspect’s hair in a lab. Upon finding similarities between the two, the forensic scientists often claimed the hairs matched. Unfortunately, these findings made their way to their expert witness” testimony during trial.

This similarity/match testimony happened at a staggering rate. Of the cases that the FBI reviewed to date, 90% of the cases apply. This affected 284 defendants at their trials. This is poor, bad forensic science.

Many of the convicted defendants privy to the unfortunate microscopic hair analysis are serving jail time for felony offenses. For some, the impact was irreversible. According to the FBI’s press release,

“defendants in at least 35 of these cases received the death penalty and errors were identified in 33 of those cases… Nine of these defendants have already been executed.”

The FBI is taking steps to right their wrong. They are notifying affected defendants and allowing federal defendants to make appeals. Normally, this type of practice is not allowed in federal court. However, most of the defendants in question received state court convictions. It is now up to the states to allow these cases to reexamine these cases.

The Kavinoky Law Firm is closely monitoring the situation in California. If you believe bad forensic science practices impacted your freedom, speak with a criminal defense attorney at 1.800.NO.CUFFS. all 24/7, 7 days a week, 365 days a year.

Domestic Violence Accusations and Defense in California

domestic violenceDomestic violence is sometimes called domestic abuse or intimate partner abuse. Under California law, it involved a broad range of legal violations. These include:

  1. Causing or attempting to cause bodily injury, and/or
  2. Sexual assault.

Perpetrators of Abuse

In these cases, the recipient of the violence may or may not fall into a specific category. Such categories may include such relationships as a:

  1. spouse,
  2. former spouse,
  3. relationship partner (person one is dating),
  4. cohabitant (person with whom one is living),
  5. former cohabitant (person with whom one used to live), and/or
  6. person with whom one had a child.

Domestic violence (DV) can involve physical injury, or another consideration includes threatening words.

The legal definition of an “intimate partner” for purposes of DV includes husbands or wives, boyfriends or girlfriends, and same-sex partners. Therefore, any intimate partner, no matter the sex, can be a victim of domestic abuse. The law is very broad in terms about the relationship that gives rise to domestic violence.

What is Abuse?

Similar to “intimate partner,” the term “abuse” is also very broad.

Each of the following actions, among others, can lead to prosecution for domestic violence or intimate partner violence:

  • hitting,
  • slapping,
  • punching,
  • kicking,
  • threatening with or without a weapon,
  • hitting with an object,
  • hair pulling,
  • burning,
  • cutting,
  • biting,
  • stabbing, and/or
  • stalking

Given these points, keep in mind, there is no scale for pain or abuse. No matter how slight the physical touching, the perpetrator of the action is still eligible for prosecution. Some types of domestic violence charges do not even require any physical touching.  In fact, stalking or criminal threats do not involve touch (Penal Code section 422).

California Penal Code Convictions

California Penal Code section 273.5 is the most frequent domestic violence crime.

This penal code section provides that anyone who willfully inflicts injury on a spouse, former spouse, or certain other people is guilty of a felony.  Of course, Penal Code 273.5 is explicit that the injury may be either minor or serious in nature, so long as it is caused by physical force.  The punishment for those guilty of violating this crime includes up to one year in county jail. Moreover, the perpetrator may face even up to six years in state prison. Additionally, a conviction for someone who has had prior domestic violence conviction means even more time.

Prosecution of DV cases involves a very serious approach. Moreover, the cases often find their way to the District Attorney’s desk. These attorneys specifically handle domestic violence cases and likewise carry intense knowledge.

Your intimate partner does not decide whether or not to press charges in a domestic violence case in California. Once the police are involved in the domestic violence situation, you and your intimate partner no longer have the choice of whether or not to prosecute. The decision of whether or not to file criminal charges in a domestic violence case is up to the prosecutor alone. He or she will decide whether or not to bring the domestic violence charge. It is incorrect (and dangerous) to believe that the DV victim has the power to press charges or not; once law enforcement is involved, it is out of their hands.

California Domestic Violence Defense Attorney

No matter what charges you are currently facing, a skilled California criminal defense attorney can help. There are defenses for every criminal charge. In most cases, these domestic violence charges are based on one person’s word.

A domestic violence criminal defense lawyer understands that there are two sides to every story. This lawyer can help you gather evidence and proof for your side of the story. Do not think that these charges are hopeless. Speak with an experienced criminal defense attorney today to learn how you can save your reputation and keep your record clean.

Do not hesitate to call on criminal defense lawyer Darren T. Kavinoky if you would like a FREE case evaluation.

Domestic Violence and Divorce in California

Domestic violence accusations are common during a divorce. Some are accurate, some are less than accurate.

22% of divorces today end due to a claim of violence in the relationship. Additionally, 3 million women a year are victims of partner abuse. With this consideration, however, some partners make exaggerated or misleading claims of violence. Unfortunately, some see these claims as a way to gain advantage in divorce and/or custody proceedings.  Many partners lose access to their children as a result of false domestic violence charges. However, with an expert criminal defense attorney on your side, so shall the truth be with your case.

Domestic violence accusations can majorly impact divorce proceedings. Regardless if it is an allegation, arrest or conviction, accusations are impactful.  This is true particularly when it comes to child custody issues. This is a serious danger for all partners processing divorce. However, it is especially harmful for those in the military. A conviction of domestic violence during a divorce will affect child custody and the outcome of a divorce. Unfortunately, it can also cost military personnel their jobs.

While domestic violence is a real issue in many divorce cases, sometimes the accusations are false.

Divorcing couples are often involved in messy disputes. Some cases lead to an angry spouse claiming abuse out of frustration. If you believe you’ve been falsely accused of spousal abuse, do not wait. It’s crucial to seek the help of a qualified legal counsel who will work to protect your rights.

Protective Orders

Also referred to as restraining orders, protective orders are popular grants during a divorce. If granted, a partner may not be able to see his/her children. The accused is likely not able to enter his/her own home or visit his/her children. In some cases, those with restraining orders against them may also find themselves with additional responsibilities. He or she may need to attend counseling or anger management classes.

A parent with a restraining order against him or her will likely have a difficult time fighting for custody and visitation rights to his children. In some cases, restraining orders may last for several years after the divorce. If a partner violates an active protection or restraining order, he can go to jail.

Criminal Charges

An arrest for domestic violence in the state of California may result in criminal charges. A conviction on your record can affect you for years to come. The safest course of action for men accused of domestic violence is to remain calm and obey all restraining orders for the time being. If the accused respects the boundaries of the restraining order, there is hope to drop the charges. Of course, if an expert criminal defense attorney proves the allegations are false, the restraining order is no longer valid.

Domestic Violence Act

As a man with false allegations of domestic violence made against you, it’s imperative that you understand the Domestic Violence Act. Implemented in 1979, the act defines what constitutes domestic violence. According to the legislation, domestic violence is defined as “attempts to cause or intentionally causing bodily injury, and placing a person in fear of ‘imminent serious bodily injury’ by threatening the use of force.” Under the act, it’s easy for women to make false allegations but, with the right criminal defense, you may be able to prove your innocence and protect your rights.

Domestic violence charges can result in severe legal consequences for defendants, including eviction, heavy fines and legal fees, and a permanent mark on your criminal record. Additionally, these charges can affect alimony and child custody. Some courts prevent parents with a history of physical abuse from visiting their children, even under supervision. Some of the normal privileges you’ve grown accustomed to throughout the years may be taken away from you as a result of a false domestic violence charge.

Don’t Fight Alone

During a divorce, things can get ugly. Don’t fight this battle alone. If you find yourself standing on the wrong side of a restraining order, call The Kavinoky Law Firm. We hire only the best attorneys in Los Angeles. We work around the clock to protect your rights. 1.800.No.Cuffs is the number to remember but hope you never need.

Drug Expungement

drug expungementDrug expungement is a popular option for those who worry about life after conviction. It’s not a perfect solution for everyone, but it’s a great option to consider. An experienced criminal defense attorney can help you work towards expungement.

A drug charge may keep you from living your life the way you desire. From getting a good job and earning more money to purchasing a home, criminal convictions are no fun. Today, more than 80 percent of employers conduct background checks. Consequently, in today’s volatile job market, a drug charge can make job hunts a challenge. Even if you pass a drug test, the challenge persists.

Expungement refers to the process of sealing arrest and conviction records. Once an arrest is no longer on your record, potential employers or landlords have the right to its disclosure. In turn, it’s relatively easy to expunge your California criminal record. If you are eligible, your record can be clear very quickly.

Expungement Eligibility

There are certain entry requirements to meet if you’re looking for a drug expungement. The list is as follows:

  1. Any mandatory drug treatment is complete,
  2. Probation is complete, and
  3. Any other punishments related to the drug charge completed.

If you meet all of the above requirements, you are eligible for expungement in California. This process, if approved will set your conviction aside or dismissed entirely.

Once California releases your conviction, the crime is no longer on your record. As a result, you’re free from all penalties and disabilities resulting from the conviction. Additionally, you don’t have to answer ‘yes’ on criminal history questions on job applications. Truly, it’s as if the crime did not happen.

Other Rights After Expungement

Although a conviction disappears via expungement, not all rights are the same after a conviction. Regardless of expungement, some rights are revoked indefinitely.

One example is the right to possess a firearm. This right will not restore after expungement. Additionally, you must disclose your criminal history in any application for public office or a position as a peace officer. You must also disclose it for licensure by any state or local agency, or when contracting with the California State Lottery. Lastly, you must disclose when serving on a jury.

Keep in mind, your disclosure should not hurt you. Legally, the disclosure of a conviction cannot in any way result in the denial of employment or benefits.

Denial of Expungement

Certain convictions are not eligible for expungement consideration. Firstly, you may not expunge your conviction if you served your sentence in state prison. Also, depending on the severity of the crime, some just may not be up for clearance. Under California state law, some crimes are more heinous than others. These crimes include serious sex offenses committed against children. Additionally, in some cases, murder and other violent crimes are not eligible.

Expungement Process

Before the court will grant you a drug expungement, there are several steps you and your criminal defense attorney must follow. These include:

  1. Analyzing the case to determine you are eligible for an expungement,
  2. Performing legal research regarding the current and relevant law,
  3. Filing the appropriate paperwork within the proper time frames, and
  4. Attending the hearing in court.

Even if you follow these steps, and the judge grants you a drug expungement, there may still be limitations as to what an expungement can do for you. Expunged convictions can still be used as prior convictions in order to enhance sentencing for future crimes, and can be used as a ‘strike’ for the purposes of California’s three strikes law.

In most cases, juvenile offenders and those who have been arrested or convicted for drug crimes may have an easier time expunging their criminal history. It’s important to note that possession of marijuana for personal use should automatically be erased from your criminal record after two years – this does not apply to convictions for growing, selling, or transporting marijuana.

Hire a Lawyer 

The Kavinoky Law firm hires the best criminal defense attorneys in California. Our excellent and experienced attorneys work hard to fight for their clients’ rights. If you find yourself on the wrong side of the law, call 1.800.No.Cuffs for a free consultation. 

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Consequences of Conviction for a Domestic Violence Charge

Consequences of Conviction for a Domestic Violence Charge

Typically, domestic violence charges will consist of violations of Penal Codes §§ 273.5 and/or 242 and 243(e). However, there are a variety of charges that fall under the category of domestic violence. The consequences of each crime are different. If you have been charged with any domestic violence offense(s), please contact a criminal defense attorney today to determine your best defenses.

Infliction of Injury. California Penal Code §273.5. If you willfully inflict any injury, no matter how minor, upon the body of an intimate partner, you can be charged with a felony. If convicted, you will face up to four years in prison and/or a fine of $6,000. If you were convicted of a domestic violence charge within seven years of this conviction, you will be guilty of either a misdemeanor or a felony. As a result, you face up to five years in state prison and or a fine of up to $10,000.

Battery. California Penal Codes §§242, 243(e)(1). According to California law, “a battery is any willful and unlawful use of force or violence upon the person of another.” If you are found guilty of this misdemeanor, you will be subject to a $2,000 fine and/or up on one year in the county jail.

Sexual Battery. California Penal Code §243.4. If you touch an intimate part of another person against the will of the person and the touching is for the purpose of sexual arousal, you are guilty of sexual battery. This crime is a wobbler, meaning that you could be charged with a misdemeanor or a felony; and you may face up to four years in state prison and a fine of up to $10,000.

Violation of Protective Order. California Penal Code §273.6. If you intentionally violate a protective order of the court, you can be charged with a misdemeanor. You could be punished with a fine of up to $1,000 and/or imprisonment in the county jail for one year. If this violation of a protective order results in physical injury, you will be punished by a fine of up to $2,000 and/or a jail sentence for up on one year.

Intimidating an Intimate Partner or Witness. California Penal Code §136.1. If you prevent or dissuade or attempt to prevent or dissuade your partner or any witness from attending or giving testimony at trial or any court proceeding, or if you try to dissuade or prevent someone from making a report of victimization or seeking the arrest of someone in connection with that victimization, your actions can result in a felony or misdemeanor charge.

Where these acts are accompanied by force or by an express or implied threat of force or violence or where the act is in furtherance of a conspiracy or for pecuniary gain, you can be charged with a felony punished by up to four years in state prison. It is not a defense for this crime that no one was physically injured or actually intimidated.

Criminal Threats. California Penal Code §422. You can be charged with a crime if you threaten to commit a crime that will result in death or great bodily injury, whether it’s made verbally, in writing or by means of an electronic communication device even if there’s no intent to actually carry out the act. The only requirement for this crime is that a reasonable person is fearful for his or her own safety. A criminal threat is a wobbler, meaning that you could be convicted of a misdemeanor or a felony.

Stalking. California Penal Code §646.9. If you willfully, maliciously and repeatedly follow or harass or make a credible threat toward another person, you can be charged with stalking. Stalking can occur even if you do not have, nor ever had, a relationship with the other person. This crime is a wobbler, which means that you may be convicted of a felony or a misdemeanor.

You will be charged with a felony if you stalk someone while there is a protective order in place. The punishment for this felony is up to four years in state prison. Additionally, if this is your second stalking conviction and your first stalking conviction was a felony, you can be charged with a felony stalking count and you may be sentenced to five years in prison. As if the prison sentence isn’t bad enough, a felony stalking conviction can haunt you for the rest of your life: The court may order you to register as a sex offender.

Expunging a Domestic Violence Conviction.

If you’ve already been convicted of a domestic violence offense, there are things that can be done to positively impact your criminal record. Expungement of a domestic violence conviction, just like expungement of other criminal offenses, is possible. In any case in which probation has been granted, whether a misdemeanor or a felony domestic violence case, it may be possible to withdraw the guilty or no contest plea, or a verdict of guilty, and replace with a not guilty plea and dismiss the complaint. This is pursuant to California Penal Code section 1203.4. In felony cases where a state prison term was imposed, the only relief available is either through a Certificate of Rehabilitation and Pardon, or a direct application to the Governor for a Governor’s Pardon. There are also serious considerations relating to firearms rights for anyone convicted of a domestic violence crime. Getting a record restored following a domestic violence conviction, or any criminal conviction, is a sensitive undertaking, and it is vital to confer with a skilled criminal defense lawyer who understands and appreciates the legal complexities of expungements associated with domestic violence charges.

No matter what charges you are currently facing, a skilled criminal defense attorney can help. There are defenses for every criminal charge. In most cases, these domestic violence charges are based on one person’s word. A domestic violence criminal defense lawyer understands that there are two sides to every story. This lawyer can help you gather evidence and proof for your side of the story. Do not think that these charges are hopeless. Speak with an experienced criminal defense attorney today to learn how you can save your reputation and keep your record clean.

Infliction of Injury Penalties

Infliction of Injury Penalties

Infliction of injury, also known as spousal abuse, is a California domestic violence offense. Infliction of injury can be charged against any kind of intimate partner – either married, divorced, or living together. The individuals can be former cohabitants or have children together. They can be heterosexual or same-sex partnerships. If an individual inflicts an injury, even a minor one, upon the body of an intimate partner, he or she can face felony charges punishable by up to four years in prison and a fine of up to $6,000.

Although the penalty just described lists the maximum amount of prison time and the highest fine that a first-time offender faces, it is not a complete list of the penalties that ultimately face the accused. Furthermore, aggravating factors and/or prior domestic abuse convictions will likely invoke an even stiffer sentence.

If the defendant is placed on probation (which is usually the case), he or she remains on probation for at least three years. There are certain mandatory terms of probation with respect to any California intimate partner abuse crime and include the booking process if the defendant wasn’t booked upon arrest, issuance of a Criminal Protective Order against the defendant, the offender’s participation in a batterer’s class and an additional fine payable to specific domestic violence funds.

An individual convicted of infliction of injury who also has any prior domestic violence convictions within seven years of his or her current offense faces an additional year in county jail or state prison and an additional $4,000 in fines above the maximum sentence allowed for a first-time offender. This means that a repeat domestic abuse offender can face a total of up to five years in prison and a $10,000 fine in addition to his or her mandatory terms of probation.

If there are aggravating factors, which are facts that surround the charged incident that make the incident seem even worse, the judge will likely issue the maximum sentence allowed by law. Examples of aggravating factors include a child witnessing the abuse or a victim suffering significant bodily injury. In an infliction of injury case, if the victim in fact suffers serious bodily injury as the result of the defendant’s force, the defendant may be subject to an additional three to five years in state prison, which means that he or she faces incarceration for up to nine years.

A conviction for infliction of injury may also bring professional licensing restrictions. Under California law, a licensing board may suspend or revoke a professional 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. This means that a conviction could potentially end an individual’s career.

Finally, an individual may not only be charged criminally for infliction of injury, but may be sued in civil court for the abuse as well. In a civil court, a person who is found liable for committing this wrong is subject to additional heavy fines and a Civil Protective Order but cannot be sentenced to jail or prison.

With such devastating consequences, it is imperative that an individual who has been arrested on an infliction of injury charge hires a qualified criminal defense attorney who is familiar with all of the defenses that apply to this charge. The attorneys from The Kavinoky Law Firm have successfully defended countless individuals who were facing intimate partner abuse charges. They receive ongoing education and training in this highly complex and technical area of the law, which is directly responsible for their outstanding results. When things are at their worst, the attorneys at The Kavinoky Law Firm are at their best! Click here for a free consultation and for the best representation.

Domestic Violence Temporary Restraining Orders

Domestic Violence Temporary Restraining Orders

A Temporary Restraining Order 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 apply for a Temporary Restraining Order to aid in his or her protection against the abuser.

Temporary Restraining Orders (commonly called TROs) are designed to protect a victim of intimate partner abuse from further harm. Although a TRO falls under the category of domestic violence, the individual seeking the protection doesn’t need to be a victim of actual violence. In addition to protecting against violence, a Temporary Restraining Order can prohibit the restrained person from harassing, stalking, threatening, telephoning, mailing or otherwise coming within a certain distance of the protected person. It is an order made by the court that states that the named person must refrain from particular acts and must stay away from particular people and places. A victim may request a TRO “ex-parte,” which means that his or her partner does not need to be present. The order is usually granted the same day that it is requested and lasts until the “Order To Show Cause” hearing. An Order To Show Cause hearing takes place about two to three weeks after the Temporary Restraining Order is issued and allows both parties to explain why the order should be extended or revoked.

Once the court has heard from both parties, it may decide that a more Permanent Protective Order is appropriate. Depending on the evidence presented at the hearing, the judge may prohibit the restrained person from engaging in specified acts and/or from being in designated places. This permanent order can last for years and may be indefinitely extended as circumstances warrant.

A true victim of intimate partner violence requires a Temporary Restraining Order to help ensure his or her safety and the safety of his or her children. Contacting an attorney to aid in securing this order should be the victim’s first mission. A knowledgeable attorney can make sure the application is in proper order and that the reasons for requesting the order are articulated in such a way that the judge will understand the imminent need for the victim’s protection.

Unfortunately, there are cases where a TRO is sought against an individual for frivolous or unlawful reasons. Many times, the so-called “victims” of domestic violence are in fact abusing their partners and obtaining an order against that partner is simply another form of that abuse. When that is the case, it is the restrained individual who should immediately hire an attorney. The criminal defense lawyers at The Kavinoky Law Firm know that intimate partner abuse is always two-sided and they will help ensure that the judge and jury not only hear the accused’s side but believe it as well.

Whether an individual is the victim or the alleged abuser, hiring an attorney who is experienced in California domestic violence law can help either side get his or her desired outcome at the Order To Show Cause hearing. 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. Their reputation for treating their clients with compassion, discretion and respect is exceeded only by their success rate. Click here for a free consultation.

Professional Licensing Restrictions and Sexual Battery

Professional Licensing Restrictions and Sexual Battery

Sexual battery is a California domestic violence offense that can be charged in an abuse case involving intimate partners. The term “intimate partners” applies to nearly every type of relationship – it includes straight and gay couples and those who are married, divorced, living together, have children in common, or who are dating or formerly dating.

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, including physician and surgeon boards, which 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 sexual battery conviction (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.

Sexual battery is an offense known as a “wobbler” under California law, which means that it can be charged as either a misdemeanor or a felony depending on the facts of the individual case. Sexual battery charges can be filed against anyone who touches another person for the purpose of sexual arousal, sexual gratification or sexual abuse.

California domestic abuse law defines “touching” as any type of physical contact – however minor – whether it occurs directly or through the clothing of either individual. An individual can charged with sexual battery even when involved in an ongoing, intimate relationship.

When charged as a misdemeanor with no aggravating circumstances, sexual battery is punishable by a maximum of six months in jail and a $2,000 fine. However, if the touching takes place while the accuser is unlawfully restrained, institutionalized, seriously disabled, medically incapacitated or unconscious, the jail sentence may increase to a maximum of one year or the crime may rise to a felony, punishable by a maximum of four years in state prison and a $10,000 fine.

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 sexual battery may face is a restriction on his or her professional license.

If either facing a sexual battery charge 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 have successfully defended countless individuals who have been charged with intimate partner abuse and have helped them keep their families, careers, freedom and dignity intact.

Defenses available in a California domestic violence stalking case

Defenses available in a California domestic violence stalking case

In California, crimes that are committed against an intimate partner will be prosecuted as domestic violence crimes. Intimate partners are married, divorced, living together, dating, formerly dating or have children together. It therefore follows that if an individual harasses or pursues and threatens his or her partner, with the intent of placing that partner in fear, he or she will be charged with stalking as a domestic abuse crime. Without any aggravating factors or prior convictions, a defendant faces up to one year in jail or prison for this crime – with them, he or she faces up to six years in prison.

Because the consequences of stalking an intimate partner are so severe, it is critical that the accused hires a criminal defense lawyer who specializes in intimate partner abuse law. The experienced attorneys at the Kavinoky Law Firm have defended many D.V. related stalking cases and have mastered the defenses that are used in conjunction with this crime. They can effectively fight for their clients, based on their thorough understanding of domestic violence law.

The elements that are required to prove this crime are the best place to look for defenses, because if the prosecutor can’t prove each element independently, the defendant must be acquitted. To be convicted of stalking, the prosecutor must prove that the defendant “made a credible threat, intending to place his or her intimate partner in fear”. If the defense attorney can show that his or her client never intended to place his or her partner in fear, either because he or she was only joking or because he or she never actually revealed a threat, but only wrote about his or her own private thoughts in a place that wasn’t directed at the partner, that may serve as a defense. In addition, the threat must be made with the “apparent ability” to see it through. If the threat were so ridiculous or so grandiose that its execution would not even be likely, that would also serve as a defense. Along these same lines, if the intimate partner overreacted and it can be proven that a reasonable person in the same situation would not have feared for his or her safety, the defendant would be entitled to an acquittal.

Defenses may often be presented to the prosecutor or judge even before a case goes to trial. Insufficient evidence is one defense that can be raised in an intimate partner abuse stalking case if, for example, the police report didn’t clearly define the crime. Under this scenario, a skilled defense attorney may argue that the charge should be reduced or even dismissed. Similarly, if there were no witnesses to the alleged incidents and/or no proof of the charges, absent the partner’s accusation, the defendant’s attorney may be able to have the case dismissed at the preliminary hearing, thereby avoiding a trial. Mistaken identity could also be raised as a defense if the perceived threat was received in any manner other than face-to-face.

Defenses raised during a trial can include any of the previously stated pre-trial defenses and may also include false accusations. DV often characterizes volatile, highly charged relationships. Oftentimes, either partner does whatever it takes to gain control over the other, as domestic violence statistics reveal that, in many partnerships, both partners are abused and both partners are abusive. Such being the case, a partner may initiate a false stalking charge out of anger, revenge, jealousy or another motive simply to punish the partner. An experienced attorney will bring this type of defense to light by effectively cross-examining any and all witnesses.

The outstanding attorneys at the Kavinoky Law Firm receive ongoing training in intimate partner violence cases and on all of the defenses that are available in these types of special cases. The creative Kavinoky lawyers will customize an intimate partner stalking defense based on each client’s charge and will educate the client about the many additional defenses that may apply to that case. Click here for a free consultation.