What Is Domestic Battery?

Simply put, it is putting your hands on your significant other. You can find the statutory language at 720 ILCS 5/12-3.2. Specifically, it states that a person commits this crime if “he or she knowingly without legal justification by any means 1) causes bodily harm to any family or household member, or 2) makes physical contact of an insulting or provoking nature with any family or household member.”

If my girlfriend/wife does not want to proceed with the case, then 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.

Who Is Included In “Family or Household Member”?

“Family or household members include spouses, former spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers.” 720 ILCS 5/12-0.1.

Is Domestic Battery a Misdemeanor or a Felony?

It depends! Generally, Domestic Battery is a class A misdemeanor. 720 ILCS 5/12-3.2(b). Misdemeanors are crimes that are punishable by less than 1 year of imprisonment. However, this charge can be a felony if you have a prior conviction for Domestic Battery, Aggravated Domestic Battery, or any of the crimes in the following list if committed against a family or household member:

• Violation of an Order of Protection,
• Murder, Attempt Murder,
• Aggravated Battery,
• Stalking, Aggravated Stalking,
• Criminal Sexual Assault,
• Aggravated Criminal Sexual Assault,
• Predatory Criminal Sexual Assault,
• Kidnapping, Aggravated Kidnapping,
• Aggravated Criminal Sexual Abuse,
• Unlawful Restraint, Aggravated Unlawful Restraint,
• Aggravated Arson, or
• Aggravated Discharge of a Firearm.

Can I go to Jail or Prison? What is the Sentencing Range for Domestic Battery in Illinois?

Generally, Domestic Battery is a class A misdemeanor punishable by up to a year in the county jail. 720 ILCS 5/12-3.2(b). However, Domestic Battery can be a felony if you have a prior conviction for Domestic Battery, or a number of crimes including Violation of an Order of Protection, Murder, Attempted Murder, Aggravated Battery or several others (see 720 ILCS 5/12-3.2(b)). If this is your second or subsequent offense, then the penalties only get worse:

Domestic Battery	Class of Offense	Minimum Sentence	Sentencing Range
1st Offense	Class A Misdemeanor	No Supervision (Conviction)	Up to 1 year jail
2nd Offense	Class 4 Felony	72 hours jail + Probation	1-3 years IDOC
3rd Offense	Class 3 Felony	72 hours jail + Probation	2-5 years IDOC
4th Offense	Class 2 Felony	72 hours jail + Probation	3-7 years IDOC

Do I need a lawyer if I am charged with 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. 

Can you get a sentence of Probation on a Felony Domestic Battery?

If you are charged with Domestic Battery, then you are eligible for a sentence of probation of up to 30 months on the class 3 or 4 felony or up to 48 months on a class 2 felony (730 ILCS 5/5-4.5-35(d)). Not only are you eligible for probation, but Illinois law suggests 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 Supervision on a misdemeanor Domestic Battery Case?

No. If you are charged with Domestic Battery, then you are not eligible for supervision. 730 ILCS 5/5-6-1(c).

How long is the Mandatory Supervised Release or Parole Period for a Felony 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 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).

Are There Additional Penalties If Children Were Present When the Felony Domestic Battery Occurred?

Yes. If the crime is a felony and committed in the presence of a child, then you will be required to serve a mandatory minimum imprisonment of 10 days or perform 300 hours of community service, or both. 720 ILCS 5/12-3.2(c).

What is the Extended Term Sentencing Range for Felony Domestic Battery?

Under Illinois’ extended sentencing guidelines, if you have been convicted of a felony in the last 10 years, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled. Therefore, the extended sentencing range for a class 4 felony is 3 to 6 years in the Illinois Department of Corrections, 730 ILCS 5/5-4.5-45(a), for a class 3 felony is 5 to 10 years IDOC (730 ILCS 5/5-4.5-40(a)); and for a class 2 felony is 7 to 14 years IDOC (730 ILCS 5/5-4.5-35(a)).

What Percentage of Your Sentence Will You Serve on a Felony Domestic Battery?

Generally, Domestic Battery is a 50% sentence. Illinois “Truth-in-Sentencing” law states that: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received an imprisonment term of 3 year in the Illinois Department of Corrections, the most you would actually serve is 1.5 years assuming you do not receive any other credits.

If you are sentenced to jail time, however, good time credit only applies to domestic batteries that involve insulting or provoking contact. 730 ILCS 130/3 states that “good behavior of any person … sentence of confinement in a county jail … shall entitle such person to a good behavior allowance, except that a person who inflicted physical harm upon another person in committing the offense for which he is confined shall receive no good behavior allowance.”

What Other Things Should I Know If I Have Been Charged With Misdemeanor Domestic Battery?

You should know that in many cases, the misdemeanor crime of Domestic Battery can be upgraded to the felony crime of Aggravated Battery. Specifically, one factor that would turn the misdemeanor in a felony is the location of the offense. The law states that “A person commits aggravated battery when, in committing a battery … he or she is or the person battered is on or about a public way, public property, a public place of accommodation or amusement, a sports venue, or a domestic violence shelter, or in a church, synagogue, mosque, or other building, structure, or place used for religious worship.” 720 ILCS 5/12-3.05(c). If you battered someone out in public, and you suspect that the State would want to upgrade your case in the future, then you should seriously consider pleading guilty quickly to a misdemeanor domestic battery.

Another possible upgrade available to the State is the felony crime of Aggravated Domestic Battery (click for my guide). Once again, if you suspect that the State would want to upgrade your case in the future, you should seriously consider pleading guilty quickly to the misdemeanor.

Can I Expunge a Domestic Battery?

Generally no because Domestic Battery is a mandatory conviction case, and Illinois law does not allow you to expunge a conviction. 20 ILCS 2630/5.2(b)(1). However, you can get an expungement on a 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 (usually regular misdemeanor battery).

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

How to Keep a 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 the Case 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. Therefore, you can challenge that the victim is a family or household member if the relationship is a new one. 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 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 the Case 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 Can the Substance Use Disorder Act Keep a Conviction Off of Your Record (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 Can Diversion or Deferred Prosecution Programs Keep a Conviction Off of Your Record?

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 Can a Plea Agreement (Reduction on the Charge) Keep a Domestic Battery Conviction Off of Your Record?

Although rare, prosecutors sometimes move cases by giving defendants “a bargain.” For example, a reduction from a Domestic Battery to supervision on a Battery or second chance probation on a disorderly conduct are very good dispositions.

Other Domestic Violence Guides

If you are looking for information about:

• Aggravated Domestic Battery cases, then check out our guide to Aggravated 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! And if you have specific questions about your case, give me a call.