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Barry Boches & Associates

Are Orders Of Protection Automatically Imposed Or Are They Requested?


An order of protection is civil in the matter where a domestic battery is criminal in nature. They do go hand in hand quite often, but a lot of times people do not. They just want to cool off for that night and that is it. A domestic battery order of protection is severe. From the minute they file it, you are not allowed to have any contact with that person for at least seventy-two hours and it could be until further order of the court. Say one side goes in, they get an order of protection which they always do and then the other side is not there. The judge is always going to side with the person who is there, because there is nobody to contradict what they are saying, and it is very easy to embellish on the truth. But, the judge, after they get you the order of protection, usually set the hearing up for three weeks.

You might be booted out of your house with none of your belongings, none of your tools for work, none of anything, with no say in the matter for three weeks; even if you were totally innocent and you do not have a hearing for three more weeks. They can be quite devastating. Also, you are not allowed to have any contact with the person reporting the battery. After one day your wife says “look, I’m really sorry I overreacted, I want to make up, let’s move on”. Even contacting you, that is a violation of the order of protection. That in and of itself is another Class A misdemeanor. You could get up to a year in jail just for saying hi to the wife that is trying to apologize for whatever reason.

It is very bad to have an order of protection go with it. It is a whole separate bag of worms. There are separate hearing dates for that as well. Up here, they happen mostly in the same courtroom, but you would never have the order of protection heard on the same day as the domestic battery case, because one is civil and one is criminal.

Does The Alleged Victim Have To Be Injured For Domestic Battery Charges To Be Imposed?

No, absolutely not, there are two elements to a battery. There is one, the cause of bodily harm without legal justification. That is your normal battery where someone gets hurt, they get bruised, they get slapped, they get punched, they get kicked, whatever. The other element, or the other way to charge the case, is that the person made insulting or provoking nature contact. And that gets really iffy, because look, say a typical insulting nature contact could be slapping someone lightly. It could be spitting on them. It could be pushing them on the bed. It could be pulling their hair. Insulting nature battery, not necessarily domestic, could be that you walked by a girl and grabbed her breast, or grabbed her ass, any kind of unwanted touch. Any of those are insulting nature contacts which could be declared a battery. And if it happens with the girlfriend that is where it gets really iffy and gray.

It is your girlfriend and you have been living with her for a year and you are pissed off and you grab her breast trying to be funny and she gets offended. Well where do you draw the line there, saying it is okay as a couple or it is not, when there really is not any bodily harm? That is a very gray area. You would hope somebody would use some discretion, but the cops are going to come out and they are going to arrest somebody and that person is going to have to go through this whole process of being charged criminally and having to appear in court multiple times and maybe hire an attorney over something that maybe should have not been charged. They are difficult for all these parties involved and they are difficult for the police.

Domestics often escalate into something much worse. A lot of times there are stabbings, murders, real beatings and shootings. So when there is a call they are always going to air on the side of caution and they are going to arrest somebody and they are going to try and diffuse the situation big time, so it cannot escalate into something more.

Common Mistakes Detrimental To A Domestic Battery Case

Like any arrest, if you are being arrested for something you should just use your right to remain silent and do not talk. Give them your basic information and that is the end of it. Be polite. Do not say my attorney is going to kick your ass in court. I have seen that so many times in police reports that I am tired of seeing it. But, you want to be polite with the police. You do not want to get an attitude with them. Do not shoot the messenger. But, you do not want to answer any questions, because if you say look, I just pushed her on the bed, well now you have just admitted to an insulting nature contact, where it might have been nothing. So you do not want to make any statements about oh, she punched me first, so I punched her back so I had legal justification. Well now you have just admitted punching her.

You do not want to make those statements. You do not want to do anything that is going to hurt your case. So, whenever you get arrested, this applies to any case, you should be polite, you should be as cooperative as you can be, but, you should also politely refuse to make any statements without talking to your attorney. That is why I keep that on the back of my business card so people do not have to remember all this stuff. You just hand them the card and it says I know my rights, I am not trying to be rude, I am just trying to tell you I don’t agree to making any statements. I am not consenting to you searching anything or taking anything. I want to talk to my attorney and I want him now. That is what I suggest to anybody who is in that situation.

For more information on Orders Of Protection, a free initial consultation is your best next step. Get the information and legal answers you are seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

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