ASSAULT AND BATTERY / DOMESTIC VIOLENCE

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ASSAULT AND BATTERY / DOMESTIC VIOLENCE ATTORNEY

    Being charged with an Assault crime or Domestic Violence can be scary and frustrating. It’s not uncommon for someone to be charged with an assault after the police only hear one side of the story. Assault and Domestic Violence can be charged after allegations of a mere push. Far too often, police and prosecution will ignore things like acting in self-defense or coming to the defense of another person. Police and prosecution may try to force someone to take a plea deal in order to keep them from exercising their rights in court by inflating the charges against them.

    What does the prosecutor have to prove for an Assault and Battery?

    Prosecution must prove that the accused intentionally tried to commit or did commit an act that would cause a person to believe they were going to be battered. A battery is a forceful, violent, or offensive touching of another person or something connected to them. The accused must have had the ability, or thought they had the ability, to carry out the threat of the battery.

    Is Assault and Battery or Domestic Violence a misdemeanor or a felony?

    Assault and Domestic Violence charges in Michigan vary in severity. The penalty can range from a 93-day misdemeanor to a felony that could result in years in prison. A charge can be escalated from a misdemeanor to a felony based on allegations of a weapon being present, the degree of injury, and prior convictions.

    What is a No Contact Order?

    In Michigan, it is standard for the judge to issue a no contact order as a bond condition in domestic violence and assault and battery cases. Even in domestic violence cases between a husband and wife who may have kids together and live in the same home, no contact orders are issued forcing the accused party to move out of their own home. This makes life very difficult for all the parties involved.
    The effect of a no contact order is that the defendant’s bond will be violated if they have any communication with the person they have been ordered not to speak with, this almost always refers to the accuser.

    Can I Drop Domestic Violence Charges?

    Domestic Violence is a criminal charge in Michigan. This means that the matter at the court is not you versus your accuser; it is the State of Michigan versus you. Your accuser is merely a witness to the State of Michigan’s case.
    Due to pressure to prosecute cases, prevent spousal abuse, and other factors prosecutors rarely dismiss a case just because the accuser asks them too; however, it may help you get a more favorable outcome.

    What are the defenses to Assault and Battery and Domestic Violence?

    If the prosecutor cannot prove all of the elements of the crime the person is not guilty. For instance, batteries cannot occur on accident. If the offensive touching was an accident the person is not guilty.
    A person acting in self-defense is not guilty of assault or domestic violence.
    Defense of others is similar to self-defense. Defense of others occurs when a person comes to the rescue of another who would have had a valid self-defense claim.
    Defense of property allows physical force to be used to protect one’s property.
    Being falsely accused of assault charges can easily happen. False accusations of assault are most common in domestic violence situations where a break up, divorce or child custody battle is pending. A common defense is that the accuser is lying.

    Domestic Violence Lawyer – Proven Results

    Assault and Battery Proven track record
    Felonious Assault / Domestic Violence – Macomb Circuit Court – Not Guilty
    Domestic Violence – 52-2 District Court Clarkston – Not Guilty
    Assault and Battery – 52-2 District Court Clarkston – Not Guilty
    Domestic Violence – 16th District Court Livonia – Not Guilty
    Domestic Violence – 35th District Court Plymouth – Dismissed
    Assault – 35th District Court Plymouth – Not Guilty
    Domestic Violence – 14B Ypsilanti District Court – Dismissed
    Domestic Violence – 14A3 Chelsea District Court – Dismissed
    Felonious Assault / Domestic Violence – 24th District Court Allen Park – Dismissed
    Domestic Violence – 43rd District Court Hazel Park – Dismissed

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Assault and Battery

    Assault and Battery is the least severe assault charge but could still result in 93 days jail under Michigan law, MCL 750.81. A one sided allegation of a push without anything else is all that is needed for the police to charge you with assault and battery.
    Aaron J. Boria, PLLC has successfully defended and won numerous assault cases. Many of the cases we appear on are dismissed without ever going to trial or filing a motion. Others have been taken to trial where we have obtained multiple "Not Guilty" jury verdicts.

Domestic Assault

    What is the penalty for domestic violence?

    Domestic violence (also referred to as domestic assault) cases have three levels of severity, a 93-day offense, 1-year misdemeanor, or a 5-year felony. Under MCL 750.81(2) Police and prosecution can seek Domestic Violence charges when the people involved dated, lived together, or are related in someway. Like simple assault, the allegations of a mere push are all that is needed for prosecution to charge domestic violence.

    What is aggravated domestic violence?

    In order for prosecution to charge you with Aggravated Domestic Violence they must prove the alleged victim suffered a serious injury. A “serious injury” in an Aggravated Domestic Violence case is the same as in an Aggravated Assault case. Defined by law, a serious injury means an injury that requires immediate medical treatment, causes disfigurement, impairs health, or impairs part of the body.
    The 5-year felony offense is charged when the defendant has prior conviction for domestic violence.

    Spousal Privilege

    The spousal privilege allows the spouse of a party involved in a lawsuit to refuse to testify against their significant other. For example, if I were charged with an assault after I was accused of starting a fight at a bar where I was with my wife and my wife witnessed the events then she could invoke the spousal privilege and refuse to testify against me.
    The Court of Appeals has ruled that the privilege does not belong to the accused spouse (myself in the above scenario) but it belongs to the witness spouse (my wife). This means that I cannot prevent my wife from taking the stand, she has to make the choice and decline to testify.
    A requirement of the privilege is that the parties were married at the time the event occurred. If it occurred prior to marriage the privilege will not apply, so you cannot run off and get married to prevent your spouse from testifying against you.

    Spousal Privilege and Domestic Violence

    The major exception to the spousal privilege is that it cannot be invoked in a criminal case arising from harm caused to the spouse holding the privilege. Meaning, if my wife accused me of assaulting her and that accusation resulted in me being charged with domestic violence, my wife would not be allowed to claim spousal privilege to avoid testifying against me.

Aggravated Assault

To be charged with Aggravated Assault the prosecutor must be able to prove that a “serious injury” is present. Defined by law, a serious injury means an injury that requires immediate medical treatment, causes disfigurement, impairs health, or impairs part of the body.

What is the penalty for aggravated assault? 

MCL 750.81(1) makes aggravated assault a misdemeanor, with a maximum penalty of a year in jail and a fine of $1,000.00 plus court costs. If you have a prior conviction for domestic violence and are later charged with aggravated assault in a domestic violence situation you face a felony with the maximum possible penalty of 5-years in prison and a fine of $5,000.00 under MCL 750.81A(3). 

Remember, self-defense, defending another person, and accident is always defenses to an assault offense.

Felony Assault (Assault with a Dangerous Weapon)

In Felony Assault, MCL 750.82, the prosecutor must prove that the defendant used a “dangerous weapon” to commit the offense. Objects like a pen, or book will not satisfy the requirement, as they are not dangerous weapons. The prosecutor must prove a dangerous weapon was present such as a gun, knife, or club.

The maximum penalty for assault with a dangerous weapon is up to 4-years in prison, but can be increased if the offense happened in a school zone under MCL 750.82(2). Acting in self-defense, the defense of another person, or a simple accident are probably the most common defenses to felonious assault.

Assault With the Intent to Murder

A conviction for Assault With the Intent to Murder (AWIM) can only be sustained when the prosecution can prove beyond a reasonable doubt that the assault committed by the defendant was intentional, with the intent to kill, and without acting in defense.

The maximum penalty for Assault With the Intent to Murder is life in prison. Accident, self-defense, defending another, lack of intent, and acting on impulse are all defenses to AWIM. Aaron J. Boria, PLLC has successfully obtained dismissals in AWIM cases. Contact our office today for a free consultation.

Self-Defense

    If you are charged with an assault offense and are claiming that you acted in self-defense the prosecution has to prove beyond a reasonable doubt that you didn’t act in anything but self-defense, you don't have to prove anything.
    By law, a person has the right to use force to defend themselves. As long as the person is acting in lawful self-defense their actions are justified and they are not guilty of an assault.

    Self-Defense Law in Michigan

    A jury would be told to take into consideration the facts and circumstances as they appeared to the person claiming self-defense.
    A person claiming self-defense cannot be engaging in the commission of a crime at the time they are using self-defense. MCL 780.972(1) and (2).
    If deadly force is used in self-defense, Michigan law, MCL 780.972(a) and (b), requires the person claiming self-defense must honestly and reasonably believe that deadly force is necessary to save their life, to save themselves from imminent great bodily harm, or to save themself from a sexual assault.
    If non-deadly force is used for self-defense, the person claiming self-defense honestly and reasonably believes that the use of that force is necessary to defend themselves, or another individual, from the imminent unlawful use of force by another individual. MCL 780.972(2).
    Even if you used words that resulted in the other person attacking you the law would still allow you to claim self-defense.

No Contact Orders

What happens if I violate the No Contact order?

If you are the defendant then violating the No Contact order can result in being held in contempt and facing fines and jail time, loosing your bond money and being forced to pay an additional bond, or face additional bond conditions.

If you are the person that the judge has ordered the defendant not contact it is unlikely you will suffer a penalty as the court lack jurisdiction over you. However, the court will disapprove if you are the one pursuing contact and the defendant is abiding by court order.

Can I drop a No Contact order?

It is possible to have a No Contact order lifted or modified. In some cases they judge may allow contact for the exchange or property of child visitiation. If you are the person that the defendant has been ordered not to have contact with you could appear in court and ask that the no contact order be lifted. You have to ask as opposed to the defendant asking because the court will see the order as being in place for your protection.

Depending on the case, it is possible that the prosecutor may object to bond modifications of the no contact order. It is also possible that the judge may not grant it. Not always, but in most cases the judge is willing to lift the no contact order if that is what everyone involved wants.

“When I take the time to consider just how bad things could have been I consider myself fortunate. Your services were invaluable – it was comforting to have your help and guidance.” – Bryan in Westland, Michigan