Comprehensive Guide to Illinois Aggravated Domestic Battery – 720 ILCS 5/12-3.3

In Illinois, domestic violence is a general term that covers many different crimes. Presently, “Domestics” include Batteries, Violations of an Order of Protection, Assaults, Interfering with a Report of Domestic Battery, and Criminal Damage to Property to name a few. In addition to damaging your professional life, they can also impact your parenting rights. You may have questions, so here is a comprehensive guide about violations of the Illinois’ Aggravated Domestic Battery Statute (720 ILCS 5/12-3.3):

What Is Aggravated Domestic Battery?

There are 2 ways to commit an Aggravated Domestic Battery in Illinois:

1. “A person who, in committing a domestic battery, knowingly causes great bodily harm, or permanent disability or disfigurement” 720 ILCS 5/12-3.3(a); or
2. “A person who, in committing a domestic battery, strangles another individual.” 720 ILCS 5/12-3.3(a-5).

If my girlfriend/wife does not want to proceed with the case, the State will have to dismiss the case, right?

Wrong! Criminal cases are not civil lawsuits. In civil cases, the person suing you can always dismiss the case against you. However, in criminal cases, it is “The People of the State of Illinois” v “Defendant” and not “Victim” v “Defendant.” The representative of “the People” is the prosecutor not the victim. Therefore, the State can still go forward with charges even if the victim does not want to proceed.

Additionally, if the sheriff serves the victim, and the victim fails to appear or refuses to testify, the State can obtain an arrest warrant for the victim and file a Criminal Contempt case against the victim. How bad can it get if the jury finds a witness guilty of criminal contempt? There’s one case out of Kankakee where a judge sentenced a witness to 20 years in the Illinois Department of Corrections for refusing to testify (later reduced on appeal to 10 years IDOC). See People v. Geiger, 2012 IL 113181.

What Does It Mean To “Strangle”?

“Strangle means intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual.” 720 ILCS 5/12-3.3(a-5). Later on, I’ll discuss why this definition may result in a possible defense.

Is Aggravated Domestic Battery a misdemeanor or a felony?

Aggravated Domestic Battery is a felony. A felony is a crime that is punishable by more than 1 year of imprisonment. 720 ILCS 5/12-3.3(b).

What level of felony is Aggravated Domestic Battery?

It is a class 2 felony. The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4. 720 ILCS 5/12-3.3(b).

Do I need a lawyer if I am charged with Aggravated Domestic Battery?

Yes, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people. Especially with offenses like this one that involves a mandatory jail sentence.

Can I go to Prison? What Is the Sentencing Range for Aggravated Domestic Battery?

Yes, because Class 2 Felonies are punishable by 3 to 7 years in the Illinois Department of Corrections. 720 ILCS 5/12-3.3(b).

Can I Get Probation on Aggravated Domestic Battery?

Generally, a person charged with this offense is eligible for probation, but if the judge gives you probation, you must do a mandatory minimum sentence of 60 days in the county jail. 720 ILCS 5/12-3.3(b). Not only are you eligible for probation, but Illinois law recommends it: “the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that: his imprisonment or periodic imprisonment is necessary for the protection of the public; or probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” 730 ILCS 5/5-6-1(a).

Can I Get Court Supervision on an Aggravated Domestic Battery Case?

No, because Court Supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c).

When Is Prison Mandatory for Aggravated Domestic Battery (Non-Probationable)?

If you have a prior aggravated domestic battery conviction, then you are no longer eligible for probation. Your sentencing range is 3 to 7 (or 3 to 14 years if extended term applies) in the Illinois Department of Corrections. 720 ILCS 5/12-3.3(b).

What Is the Extended Sentencing Range for An Aggravated Domestic Battery?

Under the Illinois extended sentencing guidelines, if you have been convicted in the last 10 years of a felony, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled. 730 ILCS 5/5-4.5-35(a). That means that the extended sentencing range for a class 2 felony would be 7 to 14 years in the Illinois Department of Corrections.

What Percentage of Your Sentence Do You Serve for Aggravated Domestic Battery?

Aggravated Domestic Battery is an 85% sentence. Illinois’ Truth-In-Sentencing law states: “that a prisoner serving a sentence for aggravated domestic battery shall receive no more than 4.5 days of sentence credit for each month of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2)(vii). So, if you received an imprisonment term of 5 year in the Illinois Department of Corrections, the most you would actually serve is 4.25 years assuming you do not receive any other credits.

How Long Is the Mandatory Supervised Release or Parole Period for Aggravated Domestic Battery?

A person sentenced to the Illinois Department of Corrections will have a mandatory supervised release period of 4 years. 730 ILCS 5/5-8-1(d)(6).

Can I Possess a Gun If I am convicted of Aggravated Domestic Battery?

No. A conviction will prevent you from possessing a firearm under federal law because “it shall be unlawful for any person who has been convicted in any court of a … crime of domestic violence, to … possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922 (g)(9).

Can I Expunge an Aggravated Domestic Battery?

Generally no because Aggravated Domestic Battery is a felony, and Illinois law does not allow you to expunge a felony conviction. 20 ILCS 2630/5.2(b)(1). However, you can get an expungement on an aggravated domestic battery if the outcome of the case is:

• No charges filed;
• Charges filed but dismissed;
• Successful completion of a deferred prosecution, special probation, or diversion program; and/or
• Successful completion of supervision on an amended charge (i.e., misdemeanor battery).

If you are looking for more info, then check out my Illinois Expungement guide.

How To Keep an Aggravated Domestic Battery Case Off Your Record?

There are several ways to keep a conviction for this offense off your criminal record. Here are some of the ways:

How to win at trial?

Challenge the “family or household member.” At trial, the State must show that you committed a battery to a family or household member. If the relationship is a new one, you can challenge that the person is a family or household member. The law specifically states that “neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts” is a dating relationship under the statute. 720 ILCS 5/12-0.1.

Challenge that the victim was “strangled.“ If the State charged you for strangling your partner, then the State must prove more than just that you put your hands around your partner’s neck. “Strangle means intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual.” 720 ILCS 5/12-3.3(a-5). Therefore, if the state fails to show that you impeded the normal breathing or circulation of blood, then you can argue that the State did not prove that you strangled the victim beyond a reasonable doubt.

Challenge the victim’s credibility. Firstly, was the victim under the influence of alcohol or drugs? Secondly, has the victim filed for a divorce? Thirdly, has the victim refused to give you access to your children? Fourthly, Did the victim tell you that they filed a case against you to kick you out of the house and get full custody of the kids? Were you reporting the victim to the police when she created this story against you? A person’s motives for pursuing a criminal case are relevant to explain why they are lying against you. Therefore, your best defense may be to challenge the strength of the victim’s credibility if one or all of those biases apply.

How to win at motion?

If the biggest piece of evidence against you is an audio-recording, then you should know that Illinois is a two-party consent state. Indeed, someone cannot plant an audio recording device near you without your consent. Consequently, a motion to suppress illegally obtained evidence may be the route to take in that type of case. Although there are exceptions to that rule, Attorney Clyde Guilamo has extensive experience regarding the Illinois Eavesdropping Act.

How Can Domestic Violence Court Keep a Conviction Off Your Record?

Given the massive penalties that domestic violence cases impose, courts across Illinois have made a specialty court known as Domestic Violence Court. Instead of incarceration, the goal of the court is to rehabilitate families through treatment. Undeniably, many courts understand the need to keep fathers and mothers in the home and contributing members to society. A conviction would not only burden the defendant, but ultimately burden the victim and children. Significantly, a successful completion of Domestic Violence Court in many cases results in a dismissal of your case. To summarize, no criminal conviction at the end of the program is possible.

How to avoid a conviction through probation under the Substance Use Disorder Act (Previously TASC Probation – 20 ILCS 301/40-10)?

Under the Substance Use Disorder Act, the judge can sentence you to treatment as a condition of probation for misdemeanor domestic battery cases. Although a conviction initially enters against you, the good news is that “upon successful fulfillment of the terms and conditions of probation the court shall discharge the person from probation. If the person has not previously been convicted of any felony offense and has not previously been granted a vacation of judgment under this Section, upon motion, the court shall vacate the judgment of conviction and dismiss the criminal proceedings against him or her.” 20 ILCS 301/40-10(e).

How to keep a conviction off your record by Diversion or Deferred Prosecution Programs?

Many counties have diversion or deferred prosecution programs which are alternatives to the criminal justice system. Specifically, you and the prosecutor enter into an agreement that if you comply with the terms of the program (which usually include treatment, classes, and/or community service) the prosecutor will dismiss the case. If the prosecutor is offering a diversion program, then accepting and complying with the program is almost always the best possible result.

How to keep a conviction off your record through a Plea Agreement (Reduction on the Charge)?

Although rare, prosecutors sometimes move cases by giving defendants “a bargain.” For example, a reduction from an Aggravated Domestic Battery to second chance probation on a disorderly conduct or to supervision on a misdemeanor battery are very good dispositions. Also, reductions to class 4 felony domestic battery or class A misdemeanor domestic battery are good dispositions.

Other Domestic Violence Guides

If you are looking for information about:

• Domestic Battery cases, then check out our guide to Domestic Battery cases in Illinois.
• Violations of an Order of Protection, then check out our guide to Violations of an Order of Protection cases in Illinois.
• Interfering with the Reporting of Domestic Violence, then check out our guide to Interfering with the Reporting of Domestic Violence cases in Illinois.

Hire Illinois Domestic Violence Lawyer Clyde Guilamo

Lastly, I hope this guide of free legal education was helpful. #notlegaladvice. If you found this article helpful, consider giving us a review on Google! If you have specific questions about your case, then call me today for a free consultation: