A second offense for domestic battery can be either a Class A misdemeanor or Class 4 felony, depending on the outcome of the first offense.
If the first arrest for domestic battery resulted in an acquittal or dismissal, then the next arrest for domestic battery is considered a first offense. The reason is, the defendant was never found guilty of the first offense by a court of law and therefore, he or she has no prior domestic battery. (The defendant is presumed innocent unless the State can prove the defendant guilty beyond a reasonable doubt.)
If the defendant has previously pled guilty to or been found guilty of domestic battery, then the second offense is a Class 4 felony. The offense is called aggravated domestic battery and the sentence for this offense can be 1-3 years in the Department of Corrections and a fine of $25,000. However, the court may sentence the defendant to probation. The requirements for probation on a domestic battery offense will be domestic violence counseling. The statute also says the defendant, if sentenced to probation, must serve three days in jail.
The elements of domestic battery offense do not change between the first and second offense. Domestic battery is generally charged as the following: the defendant knowingly or intentionally caused, without legal justification, a) bodily harm or b) insulting or provoking contact, to a family or household member. The defendant’s prior conviction for domestic battery is not disclosed to the jury.
Bodily harm is generally any injury, even if minor. An example of insulting or provoking contact is a slap or push. A family or household member would be anyone with whom the defendant has had a relationship or family relation.
A person who commits aggravated domestic battery in the presence of a child faces additional mandatory minimums in the sentence. If this is the case, the defendant must serve 10 days jail or perform 300 hours of community service, and pay for the costs of any counseling for the child.
Typically, the process in a second domestic battery offense involves the police contacting the State’s Attorney while the defendant is in custody at the police station to seek approval of felony charges. The State will run a background check on the defendant and if there is a prior conviction, the State will file an information for Class 4 felony aggravated domestic battery enhanced. The bond will be set at a higher amount for a felony.
Finally, there is another common cause of an enhanced domestic battery: the defendant has a prior offense of violating an order of protection, 720 ILCS 5/12-3.4(a)(1)(i)-(iii). If the defendant previously pled guilty to or was found guilty of violating an order of protection, any subsequent domestic battery charge can be a Class 4 felony. The protected party in the order of protection does not have to be the same person named as the victim or complaining witness in the domestic battery case. Also, the fact that the defendant received court supervision on the violation of an order of protection has no impact. The domestic battery can be a enhanced to a felony based on supervision for violating an order of protection.