Assault and Battery

Assault and Battery

Lansing Michigan Assault & Battery Domestic Defense Attorney

Assault and battery are usually charged together although they are technically separate things under Michigan law. A battery is violent or offensive touching of another person or something closely related to that person. An assault is either an attempted battery or placing someone in fear of an imminent battery. Simply put, battery involves contact while assault does not. The penalties vary depending upon the amount of harm (if any) that was caused, if any weapons were used, who the victim is, and if the defendant has any prior assault convictions.

An assault does not require touching. You can be convicted of assault if the other person thought you were trying to touch them, even if you never intended to.

Simple Assault and Battery

Known as simple assault or assault and battery, the penalty is up to 93 days in jail and/or $500 in fines. An aggravated assault (one that causes injury, but less than great bodily harm) is punishable up to one year in jail and/or $1,000 in fines.

Domestic Violence Charges and Penalties

Domestic violence is the same as assault and battery with the added element of the victim and defendant having a “domestic relationship.” The penalties are the same as simple assault—93 days in jail. The penalties for a second offense domestic violence conviction is up to one year in jail and/or $1,000 in fines, and the penalty for a third conviction or more of domestic violence is up to five years in prison and/or $5,000 in fines.

While the penalties for simple assault may not seem too severe, you face the stigma of having a violent or assaultive conviction on your record. That can make getting work, housing, or scholarships very difficult. It will also prevent you from obtaining a concealed pistol license (cpl).

Aggravated Assault and Felony Charges

The charges and penalties can quickly escalate depending on a number of factors. If an injury occurred, even just mild bruising or a scrape, that is enough to elevate simple assault and battery to aggravated assault. If a more serious injury occurred or if a weapon was involved, you could be facing felonious assault (assault with a dangerous weapon) or assault with intent to commit great bodily harm less than murder (GBH). If a firearm was used during the attack, you may be looking at felony firearm charges which carries a mandatory two-year prison sentence, regardless of what your sentencing guidelines are.

There are also heightened penalties for certain victims such as CPS workers, police (resisting and obstructing), and public utility company employees. On top of jail or prison, you may be ordered to pay restitution, which means you would have to reimburse the victim for cost of medical treatment, counseling, or any property damage that occurred during the assault.

In assault and battery or domestic violence cases, prosecutors frequently overcharge defendants. A simple assault can easily turn into a five or 10-year felony. Victims often exaggerate or may even be lying. An experienced domestic assault defense attorney will have experience in cross-examining victims and medical personnel about the events and injury that can discredit their testimony or raise reasonable doubt to a jury. These charges are too serious to go at it alone or to be represented by a general practitioner who doesn’t make his living defending against assault and domestic violence charges.

Deferred Sentencing and Plea Options

If you have no prior assault convictions, you may be eligible for deferred or delayed sentencing under MCL 769.4a. Upon successful completion of probation, you would have no public record of the offense. Other plea options may be available such as disturbing the peace, a minor misdemeanor that may not result in jail time and would not cause you to lose your concealed pistol license. If the prosecutor is unwilling to offer you something acceptable or if you are innocent, you may have to go to trial. An experienced Michigan criminal defense attorney can bring out discrepancies in the prosecution witness’s testimony and raise reasonable doubt, especially when there are no injuries.

If you have been charged with any type of assault and battery or domestic violence offense, call Austin Legal Services, PLC today to speak to a Michigan assault and battery defense lawyer at (517) 614-1983!

 

Defending assault and battery charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Calhoun, Barry, Livingston, Washtenaw, Kent, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Battle Creek, Kalamazoo, Hastings, Brighton, Howell, Ann Arbor, Grand Rapids, Corunna, Durand. 

Assault—Great Bodily Harm (GBH)

Assault GBH

Lansing Michigan Assault Defense Attorney

Assault with intent to commit great bodily harm, aka Assault GBH or GBH, is a serious felony assault charge that carries a maximum penalty of 10 years in prison and $5,000 in fines. If charged as an habitual offender, you could be facing up to life in prison. It is a more serious charge than felonious assault or assault with a deadly weapon. Essentially, it is when someone assaults or intends to assault or injure another person with the intent to inflict great bodily harm, but less than murder.

 

What the Prosecutor Must Prove

 

In order to convict someone of great bodily harm, the prosecutor must prove each of the following elements beyond all reasonable doubt.

 

  • Defendant tried to injure another person

 

  • Defendant had the ability to cause that injury or the complaining witness reasonably believed that he had that ability

 

  • Defendant intended to cause great bodily harm (but did not intend to kill them)

 

Actual Injury Not Required

 

Actual injury is not required for GBH. The defendant doesn’t even have to touch the other person. Intent to cause great bodily harm is the key element. Injury can be considered as evidence in deciding if defendant had the requisite criminal intent.

 

What is Great Bodily Harm

 

Great bodily harm is any physical injury that could seriously harm the health of a function of the body. It can include serious internal injuries, serious burns, severe cuts, poisoning, or multiple puncture wounds. Testimony of medical experts may be needed to prove this crucial element.

 

Defenses to Assault—Great Bodily Harm

 

  • Self-Defense—This is the most common. You have the right to use physical force to protect yourself against the threat of unlawful force or harm, provided the perception of the imminent unlawful force or harm is reasonable and you were not the aggressor or provoker.

 

  • Defense of Others—This is similar to self-defense and the same limitations apply. You can use physical force to defend someone else against unlawful force or harm if it is reasonable.

 

  • Defense of Property—Using physical force to defend or protect property is generally not allowed. One exception is when the property is stolen directly (pick pocket, purse snatcher). Then you can use reasonable force that is necessary to retrieve the property.

 

  • Consent—If the complaining witness gives consent or permission to the act, then defendant cannot be convicted. Be careful about not exceeding the scope of the permission. Also, be mindful that consent in all circumstances might not be a valid defense as it could violate public policy.

 

Prior Acts of Domestic Violence

 

Normally, the rules of evidence prevents the prosecutor from introducing evidence of “prior bad acts” to show “action in conformity” with those prior bad acts. In other words, the prosecutor could not introduce evidence to the jury that since the defendant acted violently toward other people in the past, then they could use that to conclude that he acted violently on this occasion.  The court system wants juries to decide cases based upon the evidence presented on the current charge and not to be prejudiced by the defendant’s past bad behavior. Essentially, we don’t want the jury to conclude that since the defendant behaved badly in the past then that means he probably acted badly on this occasion. That is why that type of evidence is normally not allowed unless it meets one of the exceptions.

 

However, for assault charges, Michigan law allows prosecutors to do just that. Under MCL 768.27b, upon serving the defendant with notice of the particular prior bad acts, prosecutors can introduce evidence of past allegations of domestic violence to prove that the defendant is a violent character. Mere allegations are permitted, even if they did not result in arrests or charges being brought. These may even be allegations that you have never heard before. If that occurs, you need an Michigan assault defense lawyer to file motions against this evidence, if necessary, or to effectively cross-examine witnesses on these allegations that may have just surfaced, and to make sure the jury understands their limited purpose as evidence.

 

Plea Negotiations

 

Plea negotiations will depend heavily on a number of factors. Plea options will be effected by how strong or how weak the case is against you, how adamant the complaining witness or victim is, if you have any prior offenses, how severe the injury was, and if you have any prior assault convictions. Pleading to a lesser charge of felonious assault may be a good option if the case against you is strong or you are an habitual offender. In other cases, reducing the charge to a simple assault and battery or domestic violence might be a better option. If you have no prior domestic violence convictions, you may be eligible for deferred sentencing under 769 which would keep the matter off your public record.

 

If no good plea offers are available to you or if you assert your innocence, the case may have to go to trial. You need someone with experience in trying assault cases who is not afraid to litigate. Many of these cases go to trial for a variety of reasons. You need an aggressive advocate to cross-examine witnesses for contradictions, bias, and inconsistencies. Prosecutors often over-charge these cases so you need a criminal defense lawyer who is not afraid to stand up to prosecutors when they do. It is not unusual for a domestic violence or simple assault and battery case to be transformed from a misdemeanor to a serious felony.

 

If you have been charged with assault with intent to commit great bodily harm, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan assault defense lawyer.

 

Defending assault charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Shiawassee, Jackson, Barry, Livingston, Washtenaw, Kent in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Corunna, Hastings, Brighton, Howell, Ann Arbor, Grand Rapids. 

Domestic Violence: Defenses and Pretrial Release Conditions

Domestic Violence 2

 

In this we continue our discussion of Michigan domestic violence charges. This post covers pretrial releases conditions such as bond and no-contact orders, deciding on whether or not to take your case to trial, deferred sentencing, and possible defenses to domestic violence allegations.

 

Pretrial Release and Bond Conditions

 

As noted above, the judge has a myriad of conditions that can be imposed on someone charged with domestic violence. In almost all cases, a no contact order will be issued directing the defendant not to have any contact with the victim, including indirect contact through third parties and electronic communication. This can impose great obstacles, especially if the defendant and victim are living together and/or have children-in-common. The judge can also require the defendant to not be in possession of or purchase any firearms while the case is pending. If you have firearms, you will have to get rid of them or have someone else store them for you. Finally, the judge can also make you wear an electronic monitoring device. Not only does this impose an extra financial burden (the defendant has to pay for it), but often it requires a landline phone at an address within the court’s jurisdiction. So, even if you can post bail but you don’t live in the county, you would not be able to bond out if the judge requires electronic monitoring unless you can find a local landline to run the device through.

 

Deciding on Whether or Not to Go to Trial

 

This is a decision you should make only after consulting with an experienced criminal defense attorney upon reviewing all the evidence in your case. Often, these types of cases involve no injury and no witnesses outside the victim and the defendant. These “he said/she said” cases can be good to take to trial simply because the prosecutor will have a difficult time proving their case beyond all reasonable doubt if there is no additional evidence other then the victims’ testimony to corroborate their story. If the victim has credibility problems (history of false reports, lying, etc.) that can make the case even stronger for the defense This can also backfire as a jury may very well believe the victim if her story comes across believable and credible. Also, if you have previous domestic violence convictions, the prosecutor may be able to introduce that at trial which is even more devastating to the defense.

 

It is important to review all the evidence of the case very carefully. Look to see if there are any other witnesses and if there are, compare their stories, look for bias from any of the parties or witnesses, are there any photographs, medical reports, is there a history of domestic violence or assaulter behavior from any of the parties. Many defendants choose to go to trial believing that the victim will not show up for court. This can work but it can also backfire if the victim does show up as many prosecutor or judges will not accept pleas (especially to reduced charges) on the day of trial. Even if the victim does not show up, the case may be dismissed without prejudice meaning that it can be re-filed. Prosecutors have been known to seek bench warrants for witnesses who do not show up for court.

 

Can the Victim Decide Not to Press Charges?

 

This is the most frequent question I get asked regarding domestic violence cases. Both defendants and victims ask if they can decide to drop the charges. The truth is that is entirely up the prosecutor. The prosecutor alone decides on whether or not to pursue a case. A victim can request that charges be dropped, but that doesn’t mean the prosecutor will. Many times prosecutors will drop charges or greatly reduce charges at the victim’s request as they don’t like pursuing a case with a reluctant or un-cooperative witness. However, they will if they have to and they often do. Prosecutors and police frequently deal with the frustration of having someone seek police involvement in a domestic dispute only to request that no charges be pressed or they simply don’t show up for court. This abuse of emergency services have caused many prosecutors to pursue domestic cases regardless of the victim’s wishes, even though domestic violence is one of the most falsely report crimes.

 

Deferred Sentence

 

Michigan does allow for a deferred sentence for first-time offenders under MCL 769.4a, commonly known as 769. It is similar to 7411 for drug crimes, in that if you successfully complete the terms of your sentence, you will not have a public record of the conviction. Keep in mind that this only applies to domestic violence convictions– convictions for Great Bodily Harm Less than Murder or Assault by Strangulation are not eligible. Again, this can only be used one time. On top of jail and probation, the judge can also sentence you to attend a counseling program or drug treatment court if substance abuse is an issue.

 

Defenses

 

Here are some of the most common defenses to domestic violence charges:

 

  • Other Cause of Injury– While the victim may show signs of injury, it was caused by something or someone else other than the defendant.

 

  • Self Defense– A person can use reasonable force necessary to defend themselves from being attacked or acting in defense of another person. This often includes children as the accused spouse asserts force was necessary to stop the other spouse from hurting the children.

 

  • She’s Lying– In cases where there are no signs of injury, the defendant can claim that the victim is simply lying about the assault. He Said/She Said can be difficult to prove beyond a reasonable doubt.

 

  • Accident– Assault and domestic violence charges require intentional and willful actions by the defendant. If the contact or injury resulted from an unintentional act or an accident, then the defendant cannot be convicted.

 

  • De Minimis Injury or Contact– This is where the physical contact is too trivial to constitute an assault or battery.

 

Michigan Domestic Violence Defense Attorney

If you have been charged with any domestic violence offense, you need experienced legal representation. Call Austin Legal Services, PLC today to speak to our Michigan domestic violence assault charges lawyer at (517) 614-1983 for a free consultation!

Defending domestic violence charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Jackson, Livingston, Barry, Washtenaw, Kent in the cities of Lansing, East Lansing, Charlotte, Brighton, Howell, Jackson, Battle Creek, St. Johns, Ithaca, Barry, Grand Rapids.