Domestic Battery in Indiana
Experienced Domestic Violence Lawyer Who Will Defend Your Rights
If you have been arrested and charged with battery against a family member or domestic battery in the presence of a child, you should retain a criminal attorney as soon as possible. In our experience, domestic cases are among the most defendable criminal cases. Emerson Law LLC aggressively defends clients throughout Hamilton County, Boone County and surrounding areas, who have been charged.
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JR Emerson, a criminal defense lawyer in Carmel, Indiana, appreciates the anxiety that comes with being charged with domestic battery. JR focuses on his client’s achieving the best possible outcome, including having criminal charges reduced or dismissed. JR has named among the best rated attorneys in central Indiana by various groups including a Top 100 Trial Lawyers by the National Trial Lawyers Association and has been named a Super Lawyers Rising Star
The attorneys of Emerson Law LLC represent individuals charged with domestic violence in Carmel, Fishers, Noblesville, Westfield, Zionsville, Whitestown, Indianapolis, and throughout central Indiana.
Our criminal defense attorneys offer a free confidential consultation where we will briefly review your case and explain how you can fight your charges. Call us today at 317-969-8000 to schedule free consultation.
Battery Charges in Carmel, Fishers, Westfield, Noblesville, Zionsville and Whitestown
Police officers responding to an alleged domestic battery are first worried about separating the alleged perpetrator and victim in order to learn what happened from each. Unfortunately, that often means that one person will be arrested and charged with domestic violence even when there is no evidence that violence occurred. This leaves the alleged batterer, who may be the real victim, to deal with the criminal court system.
A recent focus of the victims of domestic violence in the media by various groups have resulted in greater penalties for those convicted of committing domestic battery on the basis of protecting the alleged victim. However, those convicted of domestic battery must deal with other and penalties long after the criminal case has been resolved, which may include the impact of retaining/finding employment, and the right to possess a firearm.
Can Your Charges Be Dismissed or Reduced?
Domestic Violence Information Center
- Indiana Domestic Battery Overview
- Definition of Domestic Battery & Domestic Violence
- Domestic Battery Charges
- Domestic Battery Top Defenses
- Indiana Penalties for Domestic Battery Conviction
- Domestic Battery Resources
- Filing Domestic Battery Charges
- Arrest Warrant for Domestic Battery In Hamilton County
- Once Filed the Victim Can’t Drop the Charges
- Order for Protection in Domestic Battery Case
- The Court Procedure in Domestic Battery Cases
- Types of Evidence in Domestic Battery Cases
- Testimony in Domestic Violence Trials
- Other Consequences of a Domestic Battery Conviction
- Domestic Battery Cases with Children
- Hamilton County Domestic Battery/Violence Unit
- Indiana Domestic Battery News and Articles
If you have been charged with Domestic Battery under Indiana Code 35-32-2 you need to find a competent Indianapolis domestic battery defense lawyer immediately.
In general, domestic battery includes a number of behaviors, actions, or threats against others in your family or household. It normally involves a bodily injury, or threat of injury, however, a bodily injury is not always visible. You may be charged with domestic battery even if this is your first arrest.
Indiana Domestic Violence Laws
Criminal charges of domestic battery, also known as domestic violence, in Indiana, carry stiff consequences and often include a no contact order or an order of protection issued by the Court. If convicted of domestic battery in Indiana the defendant faces jail, or even prison, in addition to anger management classes, therapy and hefty fines.
The Crime of Domestic Violence
Except for domestic battery, Indiana code does not provide for separate criminal statutes relating solely to domestic violence. The Indiana legislature has decided that offenses such as harassment, criminal confinement, criminal trespass, and kidnapping should apply to both instances of domestic violence and non-domestic violence.
What is domestic violence in Indiana? Indiana Code § 35-31.5-2-78 defines the crime of domestic violence as an offense or the attempt to commit an offense that (1) has as an element the use of physical force, or threatened use of a deadly weapon; and, (2) is committed against a family or household member.
Definition of Domestic Violence or Family Violence
Indiana Code 31-9-2-42 provides a more detailed definition “Domestic or family violence" means, except for an act of self defense, the occurrence of one (1) or more of the following acts committed by a family or household member:
(1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member without legal justification.
(2) Placing a family or household member in fear of physical harm without legal justification.
(3) Causing a family or household member to involuntarily engage in sexual activity by force, threat of force, or duress.
(4) Beating (as described in IC 35-46-3-0.5(2)), torturing (as described in IC 35-46-3-0.5(5)), mutilating (as described in IC 35-46-3-0.5(3)), or killing a vertebrate animal without justification with the intent to threaten, intimidate, coerce, harass, or terrorize a family or household member.
For purposes of IC 22-4-15-1 and IC 34-26-5, domestic or family violence also includes stalking (as defined in IC 35-45-10-1) or a sex offense under IC 35-42-4, whether or not the stalking or sex offense is committed by a family or household member.
Indiana Code § 35-42-2-1.3 states that domestic battery applies precisely to offenses involving domestic violence. Under this section of the code a person commits a Class A Misdemeanor domestic battery if he/she intentionally (1) touches a family or household member in a rude, insolent or angry manner, (2) in a rude, insolent, or angry manner places any bodily fluid on waste on a family or household member. A conviction for a Class A Misdemeanor domestic battery can result in up to one year in jail and up to a $5,000 fine. While Indiana
You may be charged with domestic battery in the presence of a child, a Level 6 Felony, if there has been an unrelated conviction, if the battery was committed in the physical presence of a child under 16 years old and while knowing that the child was present and might be able to see or hear the offense. A conviction for a Level 6 Felony domestic battery can result in up to two and one-half years in prison and up to a $10,000 fine.
Who is a household member?
Indiana Code § 35-31.5-2-128 defines a family or household member as:
- Spouse/Former Spouse
- Parent/Step Parent
- Having a Child in Common (must be born)
- Cohabitating or Previously Cohabitated as a Spouse
- Cohabitating or Previously Cohabitated as a Parent
- Cohabitating or Previously Cohabitated as a Guardian
- Personal similarly situated to Spouse
- Personal similarly situated to Parent
- Personal similarly situated to Guardian
- Is dating or has dated the other Person
- Is related by blood adoption to the other Person
- Is related by marriage to the other Person
- Has or had an established legal relationship as ward of the other Person
- Person similarly situated in legal relationship as ward of the other Person
- Is or was engaged in a sexual relationship with the other Person
A few of the most common criminal charges relating to domestic battery that people face in Carmel include, but are not limited to:
Domestic Battery - a person who intentionally (1) touches a family or household member in a rude, insolent or angry manner, (2) in a rude, insolent, or angry manner places any bodily fluid on waste on a family or household member. Indiana Code § 35-42-2-1.3
Domestic Battery committed in the presence of a child less than 16 years old - The person who committed a Domestic Battery (intentionally touched a family/household member in a rude, insolent, or angry manner, is at least eighteen (18) years of age and committed the offense against a family or household member in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense.
Child Abuse or Child Neglect – a parent's actions or in-actions that seriously endangered the child. See Indiana Code § 31-34-1-1. These actions may include sexual activity, battery of the child, and physical or mental injury.
Sexual Battery – Indiana Code 35-42-4-8 defines sexual battery as:
- (a) A person who, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person:
- (1) touches another person when that person is:
- (A) compelled to submit to the touching by force or the imminent threat of force; or
- (B) so mentally disabled or deficient that consent to the touching cannot be given; or
- (2) touches another person's genitals, pubic area, buttocks, or female breast when that person is unaware that the touching is occurring;
- (1) touches another person when that person is:
commits sexual battery, a Level 6 felony. Other factors can increase the potential penalties.
4. Defenses Against Domestic Battery Charges in Hamilton County – Dismissing my Domestic Battery Charge
I believe that domestic battery cases are some of the most defendable criminal cases. The vast majority of cases involve conflicting statements of what occurred – he said/she said statements.
In order to win a domestic battery case the prosecutor must prove each element of a domestic battery. Those being:
- You knowingly or intentionally;
- Touched another person;
- In a rude, insolent or angry manner; and,
- The person whom you touched is a family or household member.
How to Get Your Domestic Battery Charge Dismissed or Reduced
Below are the general strategies that an experienced domestic violence attorney will use in an effort to get your charges dismissed or reduced.
- Self-Defense – As you can imagine you have the legal right to defend yourself if you were defending yourself from another attacking or injuring you. This is a defense to the alleged crime of domestic violence. You are less likely to be convicted of domestic violence if you can show that someone else attacked you and that you were simply defending yourself.
- Lack of Evidence – If photos of the victim show no injury (or even redness), or if a victim changes his/her story about the incident (are they lying now or were they lying before?), it can be very difficult for a prosecutor to prove beyond a reasonable doubt that you committed domestic violence.
- False Allegations – Unfortunately, sometimes people lie in order to gain the upper hand. Sometimes people make false allegations regarding domestic violence while divorce or custody proceedings are pending before the court.
- Defense of Others – It is a defense to the crime of domestic violence if you injured a family or household member while attempting to protect another family or household member or other person.
- Accidental Injury – If the alleged victim was injured due to his or her own negligence you shouldn’t be held responsible
The crime of domestic battery may be charged as a misdemeanor (less serious) or a felony (more serious). The main difference between a misdemeanor conviction and a felony conviction is the maximum fine and the maximum potential penalty to be incarcerated. Under Indiana law, executed time for a misdemeanor is served in county jails while those incarcerated for a felony would serve that time at a state prison. Whether you are charged with a misdemeanor or a felony depends upon the crime you are accused of committing, your criminal record, and your relationship to the victim.
|Classification||Term of Incarceration||Fine|
|Class C Misdemeanor||0 to 60 days||$500 Maximum|
|Class B Misdemeanor||0 to 180 days||$1,000 Maximum|
|Class C Misdemeanor||0 to 365 days||Up to $5,000 Maximum|
|Level 6 Felony||6 months to 2.5 years||Up to $10,000|
|Level 5 Felony||1 to 6 years||Up to $10,000|
|Level 4 Felony||4 to 12 years||Up to $10,000|
|Level 3 Felony||3 to 16 years||Up to $10,000|
|Level 2 Felony||10 to 30 years||Up to $10,000|
|Level 1 Felony||20 to 40 years||Up to $10,000|
Prevail of Central Indiana
www.prevailinc.com/Prevail works with victims of domestic violence, sexual assault, stalking, robbery, home invasion, and family members of homicide victims. Their services include advocacy, safety planning, crisis response, and support groups. Prevail works with individuals and families, including kids, teens, and adults.
Indiana Coalition Against Domestic Violence
If you or someone you know is experiencing domestic violence, the Indiana Coalition Against Domestic Violence can help you get connected to services and programs across the state.
When police respond to a report of domestic battery the officers will investigate the report by interviewing the parties and witnesses, examine the location for any evidence of a crime, and look for any injuries consistent with the report(s). As a general rule, criminal charges will be filed if the police can identify any kind of crime or an alleged crime. The police report(s) and evidence (statements and photographs) will be reviewed by the prosecutor’s office who will then ultimately make the decision of whether or not to file criminal charges.
Duties of Law Enforcement Officers
When investigating accusations of domestic battery law enforcement officials have specific duties under the Indiana Code.
A law enforcement officer responding to the scene of an alleged crime involving domestic or family violence shall use all reasonable means to prevent further violence, including the following: (1) Transporting or obtaining transportation for the alleged victim and each child to a designated safe place to meet with a domestic violence counselor, local family member, or friend; (2) Assisting the alleged victim in removing toiletries, medication, and necessary clothing; (3) Giving the alleged victim immediate and written notice of the rights under IC 35-40. Furthermore, a law enforcement officer may confiscate and remove a firearm, ammunition, or a deadly weapon from the scene if the law enforcement officer has: (1) probable cause to believe that a crime involving domestic or family violence has occurred; (2) a reasonable belief that the firearm, ammunition, or deadly weapon: (A) exposes the victim to an immediate risk of serious bodily injury; or (B) was an instrumentality of the crime involving domestic or family violence; and (3) observed the firearm, ammunition, or deadly weapon at the scene during the response. And finally, if a firearm, ammunition, or a deadly weapon is removed from the scene under subsection (b), the law enforcement officer shall provide for the safe storage of the firearm, ammunition, or deadly weapon during the pendency of a proceeding related to the alleged act of domestic or family violence.
Often, following a heated exchange one party leaves and the other person calls the police. If a person alleges that domestic battery occurred, and there is probable cause that domestic battery occurred the police will seek a warrant for the arrest of the defendant. If the police come to your home, work, or find you driving you most likely will be arrested and charged with domestic battery.
Arguments that lead to domestic battery charges are not pleasant. In fact, normally both parties are not acting on their best behavior. Tensions are high and poor decisions are made. Ultimately the police are called and someone ends up under arrest for domestic battery. It is not uncommon for the alleged victim to change their mind, regret calling the police and filing criminal charges.
Once the case has reached the prosecutor’s office it is the prosecutor’s decision of whether to move the case forward or not. The alleged victim cannot simply drop charges - only the prosecutor may do so. You may advise the prosecutor of your wishes and explain why. This WILL play a role with how the case is resolved.
An Order of Protection (aka a Protective Order) is an order of the court to stop someone from contacting or harass you. Who can get an order for protection? Victims of domestic violence, family violence, sexual offense, or stalking.
The court can grant an Order of Protection without a hearing (called an Ex Parte Order of Protection). However, either party can ask for a court hearing within 30 days of the court issuing the Order of Protection.
Obtaining an Order of Protection
Indiana Code § 34-26-5-2 defines who is eligible to file for an order of protection in Indiana as:
Sec. 2. (a) A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a:
(1) family or household member who commits an act of domestic or family violence; or
(2) person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner.
(b) A parent, a guardian, or another representative may file a petition for an order for protection on behalf of a child against a:
(1) family or household member who commits an act of domestic or family violence; or
(2) person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the child.
(c) A court may issue only one (1) order for each respondent. If a petitioner files a petition against more than one (1) respondent, the court shall:
(1) assign a new case number; and
(2) maintain a separate court file;
for each respondent.
(d) If a petitioner seeks relief against an unemancipated minor, the case may originate in any court of record and, if it is an emergency matter, be processed the same as an ex parte petition. When a hearing is set, the matter may be transferred to a court with juvenile jurisdiction.
When a court issues an ex parte order of protection, it must provide notice to the respondent and hold a hearing within 30 days of issuing the order. At the conclusion of the hearing if the court grants the order of protection that order may be in effect for up to two years. The order may comprise provisions granting or denying visitation, payment for expenses, ect…
The legal process following a charge of domestic violence can take months before a case is resolved. Generally, domestic violence cases follow the following pattern:
- Initial Hearing - The initial hearing is generally the defendant’s first appearance in court. The Judge informs the accused of the charges, the potential penalties, and enters a plea of not guilty on the behalf of the accused. The accused will generally not speak except to verify their name, date of birth, and address.
- Discovery – The State will provide its evidence to your attorney which may include witness list, police reports, victim statements and audio/video recordings. Your attorney may subpoena records from other sources to obtain other video footage, 911 calls, documents, social media posts in order to defend your case.
- Deposition of Victim and Witnesses - Your attorney will ask the responding police officers and alleged victim questions related to what occurred and what each person saw, learned or was told. Your attorney is looking for any inconsistencies in their stories and/or timelines in order to weaken the State's case.
- Pre-Trial Hearings - Pre-Trial hearings are an opportunity for your attorney to seek the assistance of the court for any discovery disputes, to argue pretrial motions (like a motion to suppress evidence), and to advise the Court as to how the case is proceeding in general.
- Plea Negotiations - Most criminal defendants do not go to trial. Instead, the prosecutor offers a “plea agreement” which provides for a lesser sentence or even a reduced charge in exchange for pleading guilty to the charges. Many times this plea agreement (plea bargain) may be the best option for both the accused and the prosecutor.
- Trial - If your attorney and the Prosecutor are unable to reach a plea agreement, the case will proceed to trial. Each side will present evidence that they believe shows the guilt or innocence of the defendant.
Prosecutors normally provide their evidence, also called discovery, within thirty (30) days of your attorney filing his/her appearance with the Court. Generally, the State’s evidence will include 911 call, victim statement, witness statements, dash cam footage, body cam footage, police reports and photographs of alleged injuries. It may also include text messages, emails, voicemail messages, social media posts, and handwritten notes. The types of evidence that are involved in domestic violence cases can vary by case. In some cases, alleged victims or police may have photographs of injuries. Evidence can also include text messages or emails in cases involving electronic harassment before or after the alleged incident.
If you have received a subpoena to testify as a witness in a criminal case you are likely nervous and unsure what to expect. Some people recognize that testifying truthfully may lead to unintended consequences.
Each individual has rights under the law that may prevent them from testifying or sharing privileged information including:
- Fifth Amendment Privilege Against Self-Incrimination; and,
- Spousal Privilege.
You should always speak to an attorney before asserting your rights.
A conviction for domestic violence can lead to more than just executed time in jail, and include:
- Losing the right to possess a firearm;
- A No Contact Order or Order of Protection from the victim can limit your freedom;
- Attending an anger management/batterers class may cost hundreds or thousands of dollars;
- Negatively affect your employment and future job offers;
- Deportation if you aren’t a US Citizen;
- Lower your credit score and ability to borrow money;
- Payment of the victims living expenses;
- You ex may use a conviction to modify/limit your custody and visitation with children; and,
- Serving executed time may cost you your job.
Cases of child abuse may also be charged as domestic battery in the presence of a child. Simply disciplining your child may lead to criminal charges.
However, Indiana Code § 35-41-3-1, states that “[a] person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” Indiana Courts are clear that a parent has the legal authority, sometimes referred to as the “parental discipline privilege,” to apply such reasonable force upon his or her child as the parent reasonably believes to be necessary for proper control, training, or education.
When a defendant claims the parental discipline privilege, “the State must disprove at least one element of the defense beyond a reasonable doubt.” Accordingly, “the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent's belief that such force was necessary to control [the] child and prevent misconduct was unreasonable.” This can be difficult to the State to disprove.
The Hamilton Prosecutor’s Office in Noblesville has Domestic Violence Victim Advocates who serves as a link between the alleged victim of domestic violence and the Prosecutor’s Office. The Advocate seeks to recommend service’s to victims of violent crime through referrals, advocacy, and support and to ensure the victim's rights are protected. The Advocate will also ensure that the victim is treated with dignity and respect throughout the process.
Carmel man arrested after allegedly beating ex-girlfriend with shotgun – The Carmel Current reported that a Carmel man was in custody after allegedly using a shotgun to beat his ex-girlfriend. According to court documents when his ex-girlfriend arrived home, he allegedly pushed his way into her apartment and threatened to kill himself while she watched. After a scuffle he fled and was later apprehended. He has been charged with numerous felonies including domestic violence.
Finding a Lawyer for Domestic Battery Crimes in Hamilton County, IN
If you have been charged with domestic battery contact a domestic violence attorney to discuss your options immediately.
Emerson Law LLC will fight to get your domestic battery charges reduced or dismissed. Call (317) 969-8000 or complete an online contact form today to have our attorneys review your criminal case.
If Accused Call Us Today 317-969-8000
Charged with domestic violence, domestic battery or domestic abuse? Accused of domestic abuse in a petition seeking an order of protection? Then speak with an experienced criminal defense lawyer who can assess the accusations made against you, provide sound legal advice and protect your rights. A conviction for a domestic battery carries very serious penalties, and your parental rights and rights as a homeowner can be dramatically affected if an order of protection is issued against you. Contact an attorney at Emerson Law today 317-969-8000.
Here is a list of articles on domestic battery, domestic violence, and domestic abuse that we think you might find useful
- Indiana Code 35-42-2: Battery and Related Offenses
- Domestic Violence Lawyer
- Update: Indiana's Domestic Battery Law
- Pia Zadora Arrested for Domestic Abuse
- 50 Facts About Domestic Battery
- Countries Without Domestic Violence Laws
We offer a wide variety of services outside of criminal law. Our services include family law, personal injury law, and criminal law. Click here if you need a divorce lawyer in Carmel, IN.
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The State must prove it's case beyond a reasonable doubt. Your attorney's job is to challenge the State's evidence. Learn how an attorney can help with the use of Subpoena's and Depositions.
Whether you are contemplating divorce, or been arrested or injured you are probably scared, unsure what will come next and what to do. Give me a call. We will sit down, go over your options and work to find a way to move forward. Call me or another attorney. But call someone and get the help you deserve.
- JR Emerson, Attorney
I am here to help. I am not here to judge. For nearly 20 years I have been helping people in difficult situations and I would be happy to speak with you to see how I might be able to help you too.
- Jill Bracken-Emerson, Attorney
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The attorneys at Emerson Law LLC represent individuals and families throughout Indiana. Our attorneys use their courtroom skill and experience to also assist men and women in family law, personal injury, car accident lawyers and criminal law matters including divorce, child custody modification, and child support modification in Marion County, Hendricks County, Boone County, Hamilton County, Hancock County, Madison County, Johnson County. Cities in which we practice generally include: Zionsville, Lebanon, Whitestown, Carmel, West Clay, Westfield, Noblesville, Fishers, Lawrence, Beech Grove, Speedway, Greenwood, Southport, Franklin, Plainfield, Avon and Danville, Indiana.