Assault and Battery Overview

We’ve all heard the phrase on TV or in movies: “You’re under arrest for assault and battery.” The commonly heard phrase conjures up images of bar fights and parking lot brawls. But what are the legal definitions of the crimes? Did you know there are two separate legal terms of art at play: assault is one and battery is the other? The terms are actually two separate legal concepts with distinct elements. Some states split them up while others combine the offenses.

In most states, an assault/battery is committed when one person: 1) tries to or does physically strike another, or 2) acts in a threatening manner to put another in fear of immediate harm. Many states have a separate category for “aggravated” assault/battery when severe injury or the use of a deadly weapon are involved. Assaults and batteries can also be pursued via civil lawsuits (as opposed to criminal prosecution).

In short, an assault is an attempt or threat to injure another person, while battery is the act of making contact with another person in a harmful or offensive manner. Below is a more in-depth look at both offenses and their elements, which helps explain how these two offenses are so closely tied together.

Assault: Definition

The definitions for assault vary from state-to-state, but assault is often defined as an attempt to injure to someone else, and in some circumstances can include threats or threatening behavior against others. One common definition would be an intentional attempt, using violence or force, to injure or harm another person. Another straightforward way that assault is sometimes defined is as an attempted battery. Indeed, generally the main distinction between an assault and a battery is that no contact is necessary for an assault, whereas an offensive or illegal contact must occur for a battery.

Assault: Act Requirement

Even though contact is not generally necessary for an assault offense, a conviction for assault still requires a criminal “act”. The types of acts that fall into the category of assaults can vary widely, but typically an assault requires an overt or direct act that would put the reasonable person in fear for their safety. Spoken words alone will not be enough of an act to constitute an assault unless the offender backs them up with an act or actions that put the victim in reasonable fear of imminent harm.

Assault: Intent Requirement

In order commit an assault an individual need only have “general intent.” What this means is that although someone can’t accidentally assault another person, it is enough to show that an offender intended the actions which make up an assault. So, if an individual acts in a way that’s considered dangerous to other people that can be enough to support assault charges, even if they didn’t intend a particular harm to a particular individual. Moreover, an intent to scare or frighten another person can be enough to establish assault charges, as well.

Battery: Definition

Although the statutes defining battery will vary by jurisdiction, a typical definition for battery is the intentional offensive or harmful touching of another person without their consent. Under this general definition, a battery offense requires all of the following:

  • intentional touching;
  • the touching must be harmful or offensive;
  • no consent from the victim.

Battery: Intent Requirement

It may come as some surprise that a battery generally does not require any intent to harm the victim (although such intent often exists in battery cases). Instead, a person need only have an intent to contact or cause contact with an individual. Additionally if someone acts in a criminally reckless or negligent manner that results in such contact, it may constitute an assault. As a result, accidentally bumping into someone, offensive as the “victim” might consider it to be, would not constitute a battery.

Battery: Act Requirement

The criminal act required for battery boils down to an offensive or harmful contact. This can range anywhere from the obvious battery where a physical attack such as a punch or kick is involved, to even minimal contact in some cases. Generally, a victim doesn’t need to be injured or harmed for a battery to have occurred, so long as an offensive contact is involved. In a classic example, spitting on an individual doesn’t physically injure them, but it nonetheless can constitute offensive contact sufficient for a battery. Whether a particular contact is considered offensive is usually evaluated from the perspective of the “ordinary person.”

Some jurisdictions have combined assault and battery into a single offense. Because the two offenses are so closely related and often occur together, this should probably come as no surprise. However, the basic concepts underlying the offense remain the same.

More Questions About Assault and Battery? An Attorney Can Help

In an assault or battery case there are important defenses that may apply, especially in cases where two people were involved in a mutually heated exchange. If you or someone you know is concerned about a criminal assault or battery charge, it’s critical to contact a criminal defense lawyer as early as possible to better understand the charges and the possible penalties that come with a conviction. Contact our office today at 417-720-4800.

 

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Missouri Lawmakers Vote to Ease Prison and Jail Sentences

Yesterday, Missouri lawmakers passed a measure that could reduce the number of people in local jails and state prisons. The legislation passed the Missouri House of Representatives by a vote of 138 to 11, and unanimously passed the Senate by a vote of 32 to 0 last week. Now, it goes to Missouri Governor Mike Parson’s desk to officially sign it into law.

Once signed by Governor Parson, the Bill will eliminate mandatory minimum sentences for some non-violent offenses. Perhaps most importantly, it would bar people from being put back into jail for not paying the costs of their previous incarceration.

Current Statute Permits Imprisonment for Failure to Pay

First, under the current law, a prosecutor or Court can require a defendant to “show cause” as to why he should not be imprisoned for failure to pay. If no “good cause” is shown, then the court can imprison the defendant for various lengths of time depending on whether the offense was a felony or misdemeanor. For felonies, courts could imprison the defendant for up to 180 days for a felony. For misdemeanors, courts could imprison the defendant for 30 days. Source.

New Law Will Eliminate Imprisonment for Failure to Pay

This Bill eliminates “show cause” orders for failure to pay and takes away the Court’s authority to imprison the defendant for failure to pay. Instead, when a defendant fails to pay a fine or an installment, the fine or installment may be collected by any method authorized for civil money judgments, i.e. judgment, collection, garnishment.

The new law authorizes the Court may waive the fines entirely. In no event can the recovery of costs be the subject of any condition of probation. And the failure to pay costs cannot be the only basis for the issuance of a warrant.

This comes after the Missouri Supreme Court ruled in March that local courts cannot put people in jail for not paying previous debts. Click here for more on that Supreme Court ruling.

The legislation reflects a national trend toward more lenient prison terms for some drug offenders and low-level criminals, as states place a greater emphasis on alternative strategies for rehabilitation.

It will be interesting to see how these changes in the law effect cases in Southwest Missouri. If you or someone you love is in jail, these changes in the law could be the ticket out of jail. It is critical to contact an experienced criminal defense attorney to take advantage of these changes in the law. Contact The Law Office of Adam Woody at (417) 720-4800.

Click here to read the full text of the Bill.

 

Defenses to Drunk Driving

A motorist in Springfield, Missouri charged with a DUI or DWI (the actual charge commonly referred to as “drunk driving”) has a few different options when it comes to mounting a defense. Some affirmative defenses exist in very rare circumstances, even when the evidence otherwise supports the charge. But it’s more common to defend against a drunk driving charge by attacking the officer’s observations of what happened prior to the arrest or challenging the integrity of the evidence, such as the accuracy of a breathalyzer test. State DUI laws differ and everyone’s case has different facts, so it may help to consult with a lawyer.

Affirmative Defenses to DWI and/or DUI Charges

1. Necessity – When a person must drive to prevent a greater evil. The driver must prove that he or she had no other options and that the “greater evil” they wished to avoid was more serious than the potential harm caused by a DUI.

2. Duress – When the defendant drives in order to avoid serious injury or death, he or she is doing so under duress. For example, someone forces an intoxicated person to drive by threat of force.

3. Entrapment – When an officer somehow encourages a motorist to become intoxicated or drive while under the influence, it is referred to as entrapment. The defendant must also be able to prove that he or she would not have been predisposed to drive drunk if not for the alleged entrapment.

4. Mistake of Fact – When a person has an honest belief that he or she is not intoxicated. For example, having a valid reason to believe that the impairing effect of one’s prescription medication has worn off.

5. Involuntary Intoxication – When a person has ingested alcohol without his or her knowledge. For example, if the punchbowl at a party was “spiked” with an otherwise unrecognizable quantity of liquor.

Common Drunk Driving Defenses

1. Improper Stop – This is one of the most common arguments used by defense attorneys in DUI cases, and involves the claim that the officer lacked probable cause to make the initial traffic stop.

2. Administration / Accuracy of Field Sobriety Test – An arrest may be ruled improper if it was based on an improperly administered field sobriety test or inaccurate results. The horizontal gaze nystagmus (HGN) test, which detects eye movements often associated with intoxication, is frequently challenged.

3. Administration / Accuracy of Portable Breathalyzer Test – The attorney may challenge the administration of the breathalyzer test used at the scene (i.e. was the officer properly trained?) or whether there were intervening factors such as vomiting or indigestion. Also, the defense may question whether the breath test device was properly calibrated and maintained.

4. Administration / Accuracy of Standard Breathalyzer Test – Similar defense to #3, but pertaining to the more accurate breath test devices used at the police station after an arrest is made.

5. Administration / Chain of Custody of Blood Test – This defense raises questions about the administration of a blood test and/or whether it was tampered with or otherwise mishandled in the chain of custody.

6. Rising Blood Alcohol Concentration – Defense claims the BAC was below the legal limit while the defendant was driving but actually increased between the time of the traffic stop and the administration of the breath test. This is possible when recently consumed alcohol has yet to fully absorb into the system until the time of the BAC test.

Other, Less Common Defenses

1. Accused was not the Driver – Questions may arise over whether the person charged with the DUI actually was driving at the time. Perhaps the passenger, believing he or she was sober, switched places with the driver but failed a sobriety or breath test.

2. Improper Police Actions – This defense may include evidence and/or testimony that the officer violated the defendant’s civil rights, faked a DUI report or otherwise acted improperly.

An Attorney Can Help Argue Your Defenses to a Drunk Driving Charge

Even if you think you may have been at least a little inebriated when you were pulled over and arrested for driving under the influence, you still have the right to a defense. In order to protect your rights and get the best outcome possible, it’s in your best interests to contact a legal professional. Contact The Law Office of Adam Woody today at 417-720-4800.

 

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Posted in DWI

Missouri Supreme Court Reverses License Revocation

On Tuesday, the Missouri Supreme Court reversed Jerome Roesing’s one year license revocation for refusal to consent to a chemical breath test. The Supreme Court held that law enforcement deprived Roesing of his right to counsel when it listened to and made audio/video recordings of the end of his conversation with his attorney.

Right to Attempt Contact with an Attorney

Missouri law guarantees the right to attempt to contact an attorney for only twenty minutes. RSMo. 577.041.1. The purpose of the law is to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision about whether to submit to a chemical test.

Any refusal must be “voluntary and unequivocal.” When a driver conditions his refusal on consulting with an attorney, but is not given a reasonable opportunity to do so, then the driver is not deemed to have refused to submit.

Roesing Case

In Jerome Roesing’s case, he requested to call an attorney and was successful in reaching one. After speaking to the attorney for one minute, Roesing handed the phone to the officer and the attorney told the officer he wished to speak to Roesing in private.

The officer refused to give the attorney and client any privacy by standing three feet away and audio/video recording the conversation, which were ultimately turned over to the prosecuting attorney for use in the criminal charge.

At the end of the conversation, Roesing refused to submit to a chemical test. After that, the Department of Revenue revoked Roesing’s driving privileges for one year for refusing to submit to the chemical analysis.

Missouri Supreme Court Clarifies Right to Contact Attorney Includes Privacy

In support of Roesing, two organizations filed briefs as friends of the Court: the American Civil Liberties Union of Missouri and the Missouri Association of Criminal Defense Lawyers, which Mr. Woody leads as President of the organization.

On Tuesday, the Missouri Supreme Court clarified that the driver is only afforded an opportunity to contact an attorney and make an informed decision if the driver is able to candidly disclose all necessary information to receive appropriate advice from the attorney.

A driver is not free to speak candidly with his attorney regarding potentially incriminating evidence when there is a possibility that anything can be shared with the prosecuting attorney who will decide whether to file criminal charges.

The Court held that “to have meaningful contact with an attorney, the conversation must be private” and “privacy is inherent in a driver’s [] right to counsel.”

It will be interesting to see how the Roesing case affects refusal cases in Southwest Missouri. If you or someone you love is asked to submit to a chemical test, always request to contact an attorney and speak to the attorney privately.

To read the entire Roesing Case, click here.

 

Felony Charge Dismissed Against Springfield Pharmacist Represented by Adam Woody

The case of State of Missouri v. Gary Grove in Christian County has now been resolved.  What was once a felony charge of Involuntary Manslaughter in the Second Degree was reduced to and resulted in a plea to a traffic violation of failure to maintain lane of travel.

Originally a Careless and Imprudent Ticket

Following a vehicle accident in June of 2017, prominent Springfield Pharmacist Gary Grove was issued a ticket for Careless and Imprudent Driving.

Grand Jury Indictment for Involuntary Manslaughter

He was then surprisingly indicted by a Christian County grand jury in November of that year for Involuntary Manslaughter in the Second Degree.  His “mugshot” was posted on many media outlets accompanied by news articles detailing the case and the felony charge, and his reputation was irreparably damaged.

Charge Reduced to a Traffic Lane Violation After Adam Woody Provided Medical Records and Expert Reports

After our office conducted a thorough investigation, we provided the Prosecutor’s Office with Mr. Grove’s medical records and multiple expert reports that the accident was due to a medical emergency he experienced while driving that night. In an interview with KY3, Mr. Grove clarified that he had a pacemaker and defibrillator implanted in his body two weeks after the accident. 

Mr. Grove is happy to get this matter behind him and move forward knowing that the Christian County Prosecutor’s Office ultimately made the right decision in reducing the charge to a lane violation after evidence showed that the accident was due to Mr. Grove facing an unavoidable medical issue while driving that evening.

Moving Forward

It truly was an accident in the purest sense of the word, but one that Mr. Grove will have to live with for the rest of his life.  His remorse has been agonizing at times since the accident.  He can now move forward and continue operating three Grove Pharmacies in Springfield, where he helps thousands of clients with their daily needs.  Grove Pharmacy has remained family owned and operated for over 60 years here in the Ozarks.

Aside from owning Grove Pharmacy since 1980, Mr. Grove devotes his time to community involvement and humanitarian needs.  Mr. Grove has dedicated his time as a volunteer at the Aids Project of the Ozarks for 30 years.  Through Grove Pharmacy and Grove Spa, Mr. Grove donates to over 200 charities each year.  To that humanitarian end, his heart pours out to the victim of this accident, Julien Wayne, as well as his family, friends, and loved ones.

The silver lining at the end of the day is that the system worked and that justice did not come at the expense of a felony conviction and the possibility of prison time for a good, decent man.  A felony was wholly unwarranted and unsupported by the evidence, and fairness was accomplished through an amendment and disposition as a lane violation.  We thank the Christian County Prosecutor’s Office in working out an appropriate disposition in the face of public scrutiny.  That is what justice deserves.

Sources.

KY3 Story. https://www.ky3.com/content/news/Springfield-pharmacist-pleads-guilty-in-deadly-crash-from-June-2017-508066311.html

KOLR 10 Story. https://www.ozarksfirst.com/news/pharmacy-owner-gary-grove-pleads-guilty-to-traffic-lane-violation/1898833494

Springfield News-Leader Story. https://www.news-leader.com/story/news/crime/2019/04/03/springfield-pharmacy-owner-pleads-guilty-lesser-charge-manslaughter/3350815002/

New Law Makes Crossing the Canada Border with a DWI Even More Difficult

On December 18, 2018, Canada’s new impaired driving laws went into effect. Under the new laws, driving while intoxicated by drugs or alcohol is now considered a serious offense, placing it in the same legal category as murder, aggravated sexual assault, and drug trafficking.

Previous Law

Under the previous Canadian criminal code, DWI is considered an offense of “ordinary criminality” such that it carried a maximum punishment of five years. That meant individuals convicted of offenses of criminality in other countries, such as DWI, were deemed inadmissible for ten years. After five years one could apply for an “approval of rehabilitation” and prior to five years the only way to travel to Canada would be to obtain a Temporary Resident Permit.

New Law

Now that the new law has taken effect, the maximum punishment for a DWI conviction increases to 10 years as the crime is re-designated as one of “serious criminality”.  This will have several impacts on those with DWI or DWI related convictions who wish to travel into Canada. No longer will one convicted of DWI be automatically deemed rehabilitated after ten years.  They will still be allowed to seek “approval of rehabilitation” after five years but the designation of “serious criminality” means that the application and review process will likely become more difficult and restrictive.  The same will be true for those seeking a Temporary Resident Permit.

If you or a loved one is considering a visit to Canada and have a DWI or similar offense on their record from after December 2018, these new rules could make it much more difficult for them to enter the country. While the new law will not be applied retroactively, anyone with an old DWI on their record should still be prepared to face increased scrutiny and questioning at the border. Even George W. Bush had to get a special waiver to enter Canada because of his 1976 drunk driving conviction. Without legal assistance, travelers with a DWI on their records from December 2018 or later will likely find themselves unable to enter Canada.

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Choose a Designated Driver Before Going Out

Hockey season in full swing and baseball season is just around the corner. All of these events call for time spent with friends between bars, stadiums and homes. Before you attend a sporting event, no matter where, you should know who your designated driver is.

Your chances of getting pulled over for a DWI around Springfield increase during major sporting events. If you think you can kick back a couple of cold ones without garnering a DWI charge, think again.

 

Police use checkpoints

Police often place barricaded checkpoints around the area, especially during live sporting events and alcohol-heavy holidays such as Memorial Day. These allow them to stop all traffic and conduct license checks and physical examination of the driver and occupants without probable cause. The checkpoints do not typically spring up in the same spots to keep people from re-routing to avoid them. If you encounter a DWI checkpoint, prepare yourself for the following:

  • Mandatory stop
  • License and insurance check
  • K-9s conducting drug inspections on the perimeter of the car

Keep in mind the police have developed skills through their years of experience that assist in detecting the signs of intoxication. Even if you believe you can operate a vehicle without hazard, a police officer may find evidence to the contrary.

 

Expect a breath test

If a police officer believes you have consumed alcoholic beverages, a breath test will establish just how much remains in your system. When you got your Missouri license, you gave something called implied consent to submit to a breath or blood test at the request of law enforcement. If you do not comply with the request, you may lose your license until you go to court.

Before setting out on any venture that involves alcohol, decide who will take charge of the keys. Just a few drinks may result in serious DWI charges or worse: an accident.

 

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Posted in DWI

Missouri’s DHSS Releases Medical Marijuana FAQs

In November, Missouri voters approved Amendment 2 to permit state-licensed physicians to recommend marijuana for medical purposes to patients with serious illnesses and medical conditions.

The Missouri Department of Health & Senior Services (DHSS) answered some of the frequently asked questions Missourians have about medical marijuana.

Can I legally possess medical marijuana now?

No. Amendment 2 requires steps be taken before medical marijuana is available.

When will medical marijuana be available?

The Department will begin accepting applications for cultivation, manufacturing, and dispensing facilities on August 3, 2019. Medical marijuana is expected to be available for purchase in January 2020, at the earliest.

How do I get medical marijuana?

Step 1: Visit a state-licensed physician (not a nurse practitioner or physician’s assistant) to obtain a physician certification.
Step 2: Apply for an ID card from the Missouri Department of Health and Senior Services (starting on July 4, 2019). The fee is $25.
Step 3: Once your application is approved and you receive your ID card (within 30 days of application), purchase medical marijuana from a state-licensed dispensary (not a pharmacy).

What medical conditions qualify for a medical marijuana certification?
  • cancer;
  • epilepsy;
  • glaucoma;
  • intractable migraines unresponsive to other treatment;
  • chronic medical conditions that cause severe, persistent pain or persistent muscle spasms, including but not limited to: multiple sclerosis, seizures, Parkinson’s disease, and Tourette’s syndrome;
  • debilitating psychiatric disorders, including PTSD (if diagnosed by a state licensed psychiatrist;
  • HIV or AIDS;
  • a chronic medical condition that is normally treated with a prescription medicine that can lead to psychological or physical dependence, when a physician determines that medical marijuana could be effective in treating the condition and would be a safer alternative;
  • any terminal illness;
  • any other chronic, debilitating or other medical condition, including but not limited to hepatitis C, amyotrophic lateral sclerosis, IBS, Crohn’s disease, Huntington’s disease, autism, neuropathies, sickle cell anemia, agitation of Alzheimer’s disease, cachexia and wasting syndrome.
Important Points:

(1) People with an out-of-state medical marijuana card or a physician certification cannot legally possess medical marijuana in Missouri on December 6, 2018.

(2) You can grow your own marijuana plants for medical use, with the appropriate ID card and in an appropriate facility.

(3) Applications can be submitted beginning on August 3, 2019, for cultivation, manufacturing, testing, transportation, seed-to-sale, or dispensing facility license. It takes 150 days after the application is received to receive the license, if approved.

(4) The fees for applying are pretty steep. A Cultivation Facilities application requires a $10,000 non-refundable application fee, and a $25,000 annual fee. Dispensary Facilities require a $6,000 non-refundable application fee, and a $10,000 annual fee. Medical marijuana-infused manufacturing facilities require a $6,000 non-refundable application fee and a $10,000 annual fee.

The FAQ provided by the DHSS clarifies some of the questions that Missourians have about medical marijuana. We will continue to monitor the development of medical marijuana in Missouri.
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Can’t Teach an Old Dog New Tricks: Marijuana Legalization Sends Drug-Sniffing Dogs Into Early Retirement

Earlier this month, medical marijuana was legalized in Missouri. Medical marijuana legalization threatens the use of drug dogs trained to detect marijuana in the state.

Are the Dog Days Over?

Any search of a vehicle must be supported by probable cause. The officer must be able to point to facts or circumstances that would lead a reasonable person to believe evidence or contraband relating to criminal activity will be found in the vehicle. Law enforcement in all states employ highly trained drug detection dogs to sniff vehicles stopped by police.

In Florida v. Harris (2013), the Supreme Court of the United States issued a unanimous decision that a drug dog’s training and certification are adequate indicators of his reliability, and a dog’s alert provides probable cause to search a vehicle.

Last year, the Colorado Court of Appeals set a new precedent for drug cases. A panel of three judges ruled that officers using drug dogs trained to sniff marijuana and other drugs need a stronger reason to search a car without permission.

The ruling stemmed from a 2015 case involving a narcotics dog, Kilo. Kilo alerted to the smell of illegal drugs from a man’s truck. But Kilo was trained to detect marijuana, among other drugs. The Colorado Court of Appeals overturned the man’s drug conviction, and ruled that Kilo could not tell the officers whether he smelled marijuana or another drug in the man’s truck.

Next month, the Colorado Supreme Court will review the Court of Appeals decision.

You Can’t Teach an Old Dog New Tricks.

You can’t tell a Police K-9 who has been trained to detect marijuana to ignore marijuana just because it is legal now. Approximately 20% of all drug dogs in the United States are trained to detect marijuana. Now they are forced into early retirement. Older dogs, even if they undergo training to stop reacting to marijuana, would still face intense scrutiny to prove if they made a false hit. Any criminal defense attorney is going to ask, “Has your dog ever alerted to marijuana?”

In Canada, where retail marijuana sales began last month, 14 narcotics dogs were retired.

But New Dogs Can Learn New Tricks.

Some states, such as California, Oregon, Maine, and Vermont, have been training their drug dogs to detect cocaine, heroin, methamphetamine, and ecstasy. But not marijuana.

The President of Colorado’s Police K-9 Association revealed that most drug dogs cost between $6,000 to $10,000 alone, and that’s without training. Small departments just cannot afford to replace these high-priced marijuana-trained dogs with non-marijuana certified dogs. In the meantime, these small units can wait until they build up the funding to replace their drug dogs with non-marijuana certified dogs.

These small departments have a few other options. First, they can keep using their marijuana trained dogs and take their chances in court. Second, they can transfer the dog to places in the state where marijuana is still off limits, such as schools and jails. Third, they can work with law enforcement in states where marijuana is still illegal to put the drug dogs back on the road detecting marijuana.

It will be interesting to see whether law enforcement in Missouri replace their marijuana-trained dogs or keep using them. We will continue monitoring Missouri courts to see if they rule on this issue.

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