Interviewer: What determines whether something is a first or second degree? Could you explain that?
Matthew Gunter: First and foremost, when you have battery or assault, those are going to be misdemeanors. Those are punishable by up to a year of jail or a year of probation. Generally speaking, if someone’s convicted of those offenses, they’re going to have certain domestic violence classes as part of probation, such as how to deal with anger or how to prevent controlling people.
The anger management classes focus on controlling your own anger, particularly your impulse anger. There’s a difference between getting annoyed after being cut off on the road, and getting “road rage.” Often in domestic violence cases, the accused will have been constantly controlling where their spouse is hanging out, who she’s talking to, what she’s doing at all times. Usually in misdemeanor resolutions, the defendant is required to take those types of classes.
Battery with great bodily injury, battery with strangulation – those are felonies. Anytime someone has a prior battery conviction, a second battery can be filed as a felony even though there’s no grave bodily injury. It can be up-charged as a felony because it’s a second offense.
Another interesting aspect of domestic violence that many people are aware of is domestic violence encompasses stalking, threats, and violations of injunctions.
Interviewer: Does that include trespassing too?
Matthew Gunter: Trespassing, while it’s still a misdemeanor, involves two individuals who are not related. When they are, for example, a spouse or someone who’s been trespassed from a residence, that wouldn’t be classified as domestic. It’s just a regular trespass charge.
Interviewer: Tell me about injunctions.
Matthew Gunter: They are civil in nature, however, when someone violates a civil injunction, it could be charged as a crime. A violation of injunction would be a misdemeanor, but to get an injunction, it takes an individual getting a petition and filling it out and alleging, in the petition, why they feel they’re in fear of harm or stalking, and they need to state with specific facts why they feel that they’re in danger or why they want the courts to grant the injunction. That’s where the petitioner would indicate previous incidents, previous arrests, phone calls or threats made, things of that nature. At that point, the petition is sent to a judge and the judge will review it without a hearing.
The judge will determine whether to grant it temporarily or not. If the judge grants it temporarily, then it gets set for a final hearing, meaning both parties will come in and argue why it should or should not be granted. If the judge makes that initial decision that there’s not enough in the petition to warrant a temporary injunction, he may dismiss it outright for inefficient grounds or he may just not grant it temporarily, but still set it for a hearing later on. That’s the route that the injunction goes. At Katz & Phillips, we represent individuals who want to file petitions as well as individuals who are having injunctions filed against them.