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7Nov/120

Unlawful Acts Under the California Unfair Competition Law

Unfair competition refers to illegal commercial activity ranging from trademark infringement to false advertising.

As any other state, California has formulated its own law, the California Unfair Competition Law to protect the business sector and its consumer.

The California Unfair Competition Law defined this illicit performance as:

• Any unlawful business act or practice

• Unfair business act or practice

• Fraudulent business act or practice

• Unfair deceptive, untrue or misleading advertising and

• Any act prohibited by section 17500-17577.5

The definition of section 17200 of the CUCL is disjunctive. The five words that define unfair competition operate distinctively from its other. It means that an act is considered prohibited or fraudulent even if it is not unfair or unlawful.

Unlike other unfair and deceptive practices statute that requires intent as an element, section 17200 of the CUCL does not require that the defendant have intent to defraud the plaintiff.

Who may be sued under the California Unfair Competition Law?

Unlike any other statutes, the California Unfair Competition Law does not exempt specific industries. It applies to all persons. Moreover, persons in the statute refer to all natural persons, corporation, firms, partnerships, Joint Stocks Corporation, association and other organization of persons.

What constitute a business act or practice?

The California Unfair Competition Law requires that the wrongful acts that defined unfair competition must constitute a business act or practice. In addition, the act or practice has been construed to encompass most conduct. Even a single act is sufficient to allege a claim under section 17200.

What constitute unlawful business act or practice?

A business act or practice is unlawful if it violates any law. Unlawful claims includes violation of numerous laws and regulations existing at the various levels of government including, state statutes, state regulations, local ordinances, prior case law and standard of professional conduct.

How to plead an unlawful claim

For a party to successfully file a claim under section 17200 based on unlawful business act or practice it is necessary that he allege or show sufficient facts of the violation of the law. Failure of a party to show supporting evidence would affect the legality of the claim.

How to plead an unfair business practice

To successfully plead an unfair business practice it is necessary that the plaintiff must show the unfair nature of the conduct. The plaintiff may also allege that the harm caused by the conduct must outweigh any benefits that the conduct may have.

What constitute fraudulent acts?

A business act or practice is fraudulent if members of the public are likely to be deceived. Under this act, it is not necessary that the wrongful conduct involve advertising or false representation.

A claim under sec. 17200 premised on fraudulent acts does not require proof or intent, actual reliance or damages. According to a case decided by the US Supreme Court the statement need not be material to the transaction - it need not have affected the consumers purchasing decision.

How to plead a claim based on fraudulent conduct?

To plead a claim under section 17200 based on fraudulent conduct the plaintiff must assert that the consumers are likely to be deceived by the defendant conduct.

In a case recently decided by the court, California law requires a plaintiff to prove that defendants advertising claims are false and misleading.

If you have been a victim of any unfair competition practices, consult our highly commendable team of expert Los Angeles Business Law attorneys. Just log on to our website and you may take advantage of our free case evaluation services.

30Jul/120

Audio Recording Laws in the US

With so much great technology on the market these days, it is easier to record conversations than ever before, either over a land line, on a mobile phone or even in-person with a hidden recording device.

Recorded conversations (either tape or digital) are often very helpful in a variety of scenarios. These audio recordings may assist in an investigation of employee misconduct or in business or personal lawsuits, even in potential criminal investigations.

It is very important, however, to make sure that any recording, either of a phone conversation or an in-person conversation, complies with federal and state laws. Otherwise, you may very well open yourself up to criminal charges or civil suits. And it is unlikely that you will be legally able to use the recording for your original purpose.

So, if you're thinking about recording some phone calls or placing a voice activated recorder in a room to record conversations, you'll need to take a look at the applicable laws.

The first place to look is at the federal wiretapping statute, also known as the Electronic Communications Privacy Act. Federal law allows phone calls (traditional, cellular and cordless) and other electronic communication to be recorded with the consent of at least one party to the conversation.

This means that if you are one of the people taking part in the conversation, it can be recorded because one person (you) has consented to the recording. If you are not taking part in the conversation, at least one of the people in the conversation must know about and consent to the recording.

You can't stop, however, after considering federal law and assume that your recording passes muster. Each state and territory has its own statutes regarding the recording of conversations. Most state wiretapping and eavesdropping laws are based upon the federal law and allow recording with the consent of one party to the conversation.

The 37 states which allow one party consent recording of oral communications are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

The District of Columbia also allows people to record conversations with the consent of only one party. Nevada has a one party consent statute but there is some question as to how the law should be interpreted by the courts. It could be considered an all party consent state.

The 12 states which definitely require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington.

In California, there is an exception. You can record a conversation with the consent of only one party if certain criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.

So, the basic rule is that it is illegal to record conversations or communications in which you are not a participant, unless you have consent of at least one, if not all, of the participants.

The obvious exception to this general rule is that law enforcement officials can seek permission from a court to perform no-consent wiretaps as part of a criminal investigation. For the finer points of your own states laws and requirements, you should always consult with an attorney.

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2Mar/120

Spousal Maintenance, Alimony, and Family Law in Minnesota

Are spousal maintenance and alimony the same thing in Minnesota?

Basically, yes.  Spousal maintenance, formerly called alimony, is the financial support that one spouse is ordered to pay to another spouse in a dissolution of marriage proceeding.

Is there a set amount that I must pay or can receive in spousal maintenance?

Unlike child support, there are no statutory guidelines the Court is required to follow in setting spousal maintenance. The amount and duration of a spousal maintenance award is dependent upon the length of the marriage, the disparity in earnings and earning capacity, and the respective monthly living expenses or needs of the parties.

Can I get or will I have to pay permanent maintenance?  When will it end?

Permanent spousal maintenance may be awarded in long term marriages where there is a great disparity in incomes between the parties, while temporary or rehabilitative spousal maintenance may be awarded in shorter marriages where the spouse receiving the maintenance has an ability to increase his or her earnings within a projected period of time.

Absent specific agreement of the parties or order of the Court, permanent spousal maintenance will only terminate upon the death or remarriage of the spouse receiving the financial support. Parties can agree on the amount and duration of spousal maintenance or can even waive their right to receive financial support if none is needed or if they are compensated through some other means.

Absent such a waiver, spousal maintenance awards can be reviewed by the Court at a later date to determine if the award should be modified, extended, or terminated. To modify a spousal maintenance award, the party requesting a modification must demonstrate that either party has suffered a substantial change in financial circumstances which makes the existing award unreasonable or unfair.

If the parties waive their rights to receive financial support from each other, specific language may also be included to dispossess the court of any authority to award spousal maintenance in the future. Such language can also be incorporated into an agreement to prevent a court from examining existing spousal maintenance awards in the future. These types of waivers are specific to the issue of spousal maintenance and cannot be used by the parties to waive obligations with respect to the financial support of children or relative to the authority that the Court exercises over those children.

A court will consider a list of different factors in determining whether an award of spousal maintenance is reasonable. Due to the lack of any defined rules with respect to such awards, it is important for both individuals requesting spousal maintenance, as well as those who are asked to pay spousal support, to consult with an experienced family law attorney to protect their interests.

Vincent Martin and Joyce Cundy

Minnesota Lawyers

www.cundyandmartin.com

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14Jan/110

Video Voyeurism and Surveillance Laws in the Workplace

Are you thinking about installing Hidden or Surveillance Cameras in your place of business? Many employers consider video and other surveillance key to keeping an honest and productive workplace. It keeps employees on the straight and narrow - no fingers in the till, no time clock funny business, no drinking or drugging on breaks. Many business owners and managers also record or review phone calls and emails from the office.

But employers must be careful not to go too far in their surveillance or they will risk being sued by an employee for an invasion of privacy under federal or state law. This article is an overview of the laws applicable to workplace surveillance - you should always talk to your own attorney to determine exactly what the law is in your state.

VIDEO SURVEILLANCE

There are several variables when considering video surveillance in your place of business. Your choices include visible traditional and dome surveillance cameras or hidden cameras, with or without audio. Each of the variables has potential legal implications. Visible surveillance cameras (not hidden in any way) are generally not illegal if they are in a non-private place.

If the camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction.

Hidden cameras are a slightly different story. Video recording (without sound) is usually okay, even if the camera is hidden unless the person(s) being recorded has a reasonable expectation of privacy, the taping is done for some illegal purpose or there was trespass to record the video.

Courts across the country are finding with more and more frequency that no reasonable expectation of privacy exists with non-covert video surveillance or even with hidden surveillance if the physical space examined is a public space. Note that, if an employer uses union employees, the employer may be required to notify the union of its intention to use hidden cameras, but probably doesn't have to disclose where the cameras will be installed.

There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy. Most states have followed suit. These laws are often referred to as "video voyeurism" statutes.

VIDEO VOYEURISM LAWS

As you can see, surveillance technology has advanced so much over recent years that excellent cameras can be completely hidden from view in a number of different ways. These Spy Cameras are a great tool for many employers but can also be used inappropriately. The federal government and most states have recently passed "video voyeurism" laws.

These laws make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons.

The federal law prohibits anyone from recording images of an individual's "private areas" without consent when that individual has a reasonable expectation of privacy. Every state in the U.S. now has some legal prohibition of video voyeurism or invasion of privacy, except Iowa and Washington D.C. About half of these statutes actually make this kind of video recording a felony. Many have an even harsher punishment for distributing such videos.

You will need to check your home state's particular laws as the courts from state to state may have differing opinions as to what types of places are expected to be private - bathroom and changing rooms may be "no-brainers" but some states' courts have even decided that employee break rooms or lunch rooms are "private" for purposes of video surveillance.

OTHER SURVEILLANCE IN THE WORKPLACE

The monitoring of electronic communications such as telephone calls, voicemail, email and IMs is covered by the federal wiretapping and eavesdropping statute - the Electronic Communications Privacy Act. The ECPA does include several business use exceptions to allow employers to perform necessary investigations, protect trade secrets and keep an eye on inventory and receipts.

Under the federal law, the monitoring of things such as email and phone calls is allowed if either the sender or recipient consents or if it is done in the regular course of business. Employers can monitor only equipment which they own and do not have the right to monitor email hosted by a third party (like web-based email programs.

BEST PRACTICES

Whether they have a right to privacy at work or not, many employees find surveillance of any sort offensive. It is good practice for employees to be provided with written notification of the existence or possibility of any monitoring in the workplace - video, audio or otherwise.

Notices can be made a part of a written, distributed policy or a section in the employee handbook. Employees can even be asked to sign a consent to or acknowledgement of the monitoring. If you are cautious, ethical and respectful of your employees and of the law, video and other surveillance in the workplace can be a wonderful tool to keep your business running smoothly and profitably.

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18Dec/100

Dowry Death

          

 

 

 

 

                                                           DOWRY DEATH

 

 

INTRODUCTION :-

 

The dictionary meaning of the term dowry is ‘property or money brought by bride to her  husband on marriage’. The system of taking dowry is prevalent in our country  since ages. As per  section 2 of the Dowry Prohibition Act.,1961 dowry is defined as “dowry includes any property or valuable security given or greed to be given either directly or indirectly:

-By one party to a marriage to the other party to the marriage; or

-By the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties.

 During the ancient times dowry was considered as a custom in our country. The custom however became a social evil with the passage of time. This social evil has taken lives of many innocent brides for its non fulfillment. Deaths of young brides through suicide or homicide following disputes over the dowry  are increasingly a feature of Indian society.

            Marriages in India are usually arranged by parents and the wife becomes a member of the husband's family, in most cases moves in with them.  Since most marriages are arranged with the assistance of third parties, the family generally do not know each other well.  Nevertheless, the newly wedded bride is expected to switch her principal loyalty overnight to her husband's family. The husband's family may make little accommodation to the bride, but expect her to adjust to them.  Since they are now supporting her, the husband’s family  believes that she must be considerate to their wishes. If they think she is not, they may feel justified in treating her harshly, even violently. In the early stages of a marriage, a new bride who is being mis-treated by her husband's family may not seek help from her own parents because they will already have counseled her that a period of adjustment to her new situation may be needed. If she does complain, unless the abuse is repeated or extreme, most parents would probably be reluctant to intercede on her behalf with the in-laws or husband.  This reflects the Hindu norm that once a girl is married, her parents have only limited rights to a say in her new family's personal affairs.  They might also hope that some mutual adjustment might occur between the bride and her new family so that there would be a reduction in harassment and ill-treatment.  If the girl returns to her parents' house because of quarrels with her husband, this brings shame on her parents' family and prevents the marriage of any of her sisters.  Moreover, she cannot take part in any religious ceremonies without her spouse.  For all these reasons an abused wife may not expect much support from her parents and may only get support in more extreme cases. These marriage arrangements reflect the generally subordinate and powerless position of younger women, and patterns of domestic violence in India are indicative of this position.

The practice of dowry has its roots in the most common rite associated with a Hindu marriage (the majority of Indians are Hindus), 'Kanyadan', the act of giving the bride to the groom.  (The word literally means the act of giving or donating a virgin to the groom on an auspicious day).  It is recommended in the shastras (certain rules prescribed in Hindu philosophy) that the bride be adorned with jewelry and then given away. According to the shastras, the ritual gift remains incomplete until the groom and his parents are given 'dakshana', a token gift in their honor. This is supposed to be in recognition of the fact that the bridegroom and his kin deserve to be honored (and financially compensated) for accepting the girl into their fold. 

 

OBJECTIVE:-

 

TO HIGHLIGHT THE OFFENCE OF DOWRY DEATH AND HOW IS IT MISUSED IN OUR COUNTRY, ALSO TO HIGHLIGHT THE INDIAN SCENARIO.

 

STATUTORY PROVISION OF DOWRY DEATH :-

 

Section 304 B was introduced in the Indian Penal Code in order to strictly deal with and punish the offence of Dowry Death. It was a new offence created with effect from November 19, 1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence, than provided by Section 498A of the same Act, which deals with punishment for cruelty by husband and his relatives.

Section 304-B of IPC reads as follows:-

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relatives shall be deemed to have caused her death.

 

Explanation – For the purposes of this sub section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

 

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

 

Therefore from the above section we can see that the following ingredients are necessary for application of dowry death:-

1.                                          When the death of a woman is caused by any burns or bodily injury, or occurs under unusual circumstances. 

2.                                          And the aforesaid two facts spring within 7 years of the girl's marriage. 

3.                                          And soon before her death, she was subjected to cruelty or harassment by her husband or her relative

4.                                          And this is in connection with the demand for dowry.

 

If these conditions exists it would constitute dowry death, and the husband and/or his relatives shall be deemed to have caused her death.

 It is true that in criminal jurisprudence the benefit of the doubt is extendable to the accused. This concept of 'benefit of doubt' has an important role to play but within the confines of the stringency of laws. Since the cause of death of a married woman was to occur not in normal circumstances but as a dowry death, for which the evidence was not easily available, as it is mostly confined within the four walls of a house, namely the husband's house, where all likely accused reside, the amendments brought in the concept of deemed dowry death by the husband or the relatives, as the case maybe.

In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of direct or indirect evidence. This section lays down stringent provisions by shifting the burden onto the accused by bringing in the deemed clause. According to Section 8-A of the 1961 Act, which came into force for taking or abetting any dowry, the burden to explain is placed on such person against whom the allegation of committing the offence is made. Similarly, under Explanation to Section 113 B of the Indian Evidence Act, there is a presumption that a death caused within 7 years of marriage is a dowry death.

 

LAW COMMISSION ON DOWRY DEATH:-

 

The 18th Law Commission has recommended increasing the minimum sentence from 7 to 10 years in dowry death cases. It has, however, declined the suggestion to increase the maximum punishment from life imprisonment to death sentence.

Justice A.R.Lakshmanan-chairman of the reconstituted commission, handed over the report on 'Dowry Death' to Union Law Minister HR Bharadwaj on October 10,2007. The report examined the questions whether section 304-B of the Indian Penal Code should be amended to provide for death sentence to end dowry deaths. This section provides for a jail term not less than 7 years but which may extend to life imprisonment..

The report says , It may be pertinent to point out that where a case of dowry death also falls within the ambit of the offence of murder, awarding death sentence may be legally permissible. The guidelines laid down by the supreme court for award of death sentence, especially the dictum of the rarest of rare cases, will, however, have to be adhered to in such cases". The commission says there are misgivings & misapprehensions associated with dowry death. It is quite often confused with the offence of murder. There may be instances where the two overlap. This gives rise to the demand for parity in the matter of sentence in both cases. Nevertheless, the two offences are distinct & independent offences. The commission says " there is no justification for amending section 304-B of IPC to provide for death penalty.

 

DOWRY DEATH IN INDIA:-

 

In India not only was there an apparent increase of dowry-related deaths from kitchen fires but from this weed other covert forms of related oppression sprouted. Some of these led to psychological torture, suicides and murder of married women, desertion by their husbands, rampant abortion of female fetuses, and poor families resorting to female infanticide for fear of not being able to provide dowry.

 On an average one Indian woman commits suicide every four hours over a dowry dispute, as per official data, despite a series of laws to empower them.

According to data complied by the National Crime Records Bureau (NCRB), a total of 2,276 female suicides due to dowry disputes were reported in 2006 that is six a day on an average, while the figure was 2,305 in 2005. In 2004, at least 2,585 such cases were registered across the country.

Statistics suggest that Madhya Pradesh topped the list for the fourth time with 585 cases, accounting for one-fourth of the total number of such suicides last year in the country. West Bengal was second with 445 cases and Uttar Pradesh third with 314 cases. The national capital was seventh with 69 cases.

Police officials in the capital told reporters that suicide by hanging was the most common means adopted to end life followed by self-immolation in such cases.

The NCRB is a central body assigned to compile crime figures in the country. Its figures also state that one case is registered almost every hour under Dowry Death, which includes suicides as well as murders.

A total of 7,618 cases were registered under Dowry Death in 2006, while 6,787 cases were registered in 2005.

Dowry is a social evil but continues to be a common practice in almost every part of India. Women at the time of marriage are expected to bring with them jewellery, cash and even consumer durables are part of dowry to the in-laws and they are subsequently ill-treated, often violently, if they fail to do it.

 

DOWRY DEATH MISUSE:-

NCW want each and every death of a wife to be converted to dowry death, so that they can fool the people that dowry death is increasing and demand more and more fund form the government and other sources.  

Such loop sided and assumption based law should be immediately changed by our LAW maker and the same to be made gender equal, husband/wife to be replaced by the word spouse, as more than 52000 married man also end their life in un natural death as per crime Beureu report itself, but all the husband killers are moving freely in our society.

Let stop this legal terrorism promoted by NCW and their associated organizations, who wants that each and every home more and more litigations, so that their recommended Panel lawyers can earn more and more money by sucking the blood of common people. 

In the IPC already the Murder LAW/Attempt to murder law are there and the convection up to hang to death already available, still they want more and more duplication of law to increase more and more litigation and want to send the innocent people behind the bar without any evidence and without any investigation and want to convert each and every death of a wife to a dowry death to fulfill their hidden agenda. 

It is a great challenge to our LAW makers, will they surrender to NCW’s absurd, ill-minded proposal or do justice to common people and stop this Legal Terrorism in India in the name of so called dowry Laws, which is totally assumption based instead of any evidence based.

 

COCLUSION:-

 

It is ironic that in India dowry was originally designed to safeguard the woman and it was the provision of " Sthreedhan" ("Sthree" meaning woman and "dhan" wealth) in the form of money, property or gifts given solely to the woman by her parents at the time of her marriage. "Sthreedhan", an inheritance was meant to exclusively belong to the woman at the time of her marriage. The abuse of this custom eroded and aborted the original meaningful function of dowry as a safety net for the woman and was corrupted to become the price tag for the groom and consequently the noose for the bride. The price of the Indian groom astronomically increased and was based on his qualifications, profession and income. Doctors, Chartered Accountants and Engineers even prior to graduation develop the divine right to expect a "fat" dowry as they become the most sought after cream of the graduating and educated dowry league. A reactionary preliminary wave of preserving oppressive practices of dowry demands, harassment and placing Indian males as high commodity line of goods, appeared to surface also in the West and other countries where immigrants of Indian origin established themselves.

A number of laws like the Dowry Prohibition Act of 1961 (often touted as toothless) and Section 113-A and Section 113-B in the Evidence Act exist to tackle the problem of dowry. But none of them is good enough.

Also various legislations that have been enacted for dowry death should not be misused .

 

 

 

 

 

 

 

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3Apr/100

When You Need an Attorney, Use an Online Lawyer Directory to Find Law Firms and Attorney Listings

For many of the major circumstances of life, you will need the help of a competent lawyer.  However, it can be challenging to find a lawyer for your particular situation in your geographical locale.  An attorney search can be time consuming, but one quick and easy way to obtain a useful list of firms and names is to conduct an attorney search by using an online attorney directory.

How Lawyers Work

Attorneys are licensed to practice law in each specific state.  Lawyers have many responsibilities when it comes to the particular branch of law that they practice.  Attorneys have to be able to understand their client's case so well that they can argue it in front of a judge or jury.  These types of lawyers are called trial lawyers, who try cases in court.  In order to be prepared for court, lawyers must do extensive research into the laws pertaining to the case, as well as put in writing all of the issues surrounding the specific case for their documents called briefs.  A case might be a criminal case where criminal charges have been filed against a suspect and is tried at court in front of a jury.

Working With Your Lawyer

Once you find a lawyer or law firms through an onlineattorney listingsr

, your lawyer will get to know you and learn what the facts are about in your case.  Your lawyer will also want to find out from you what you wish to accomplish in court, and he or she will then take some time to explain to you what can actually be accomplished in the legal setting.  You will need to find an attorney with excellent listening skills, and this is why using  an attorney search website that offers a lawyer referral is so helpful.  When past clients give feedback on their experience with a particular lawyer, you can rest assured that your lawyer comes recommended, and you can avoid lawyers that do not receive good recommendations as well.  Law firms will not necessarily offer new clients this type of information, but it is vital to know if you are selecting a lawyer.

Barrister or Solicitor? 

Sometimes you will need a lawyer to help you with a legal matter outside of the realm of those typically held in a courtroom. (In the U.K., such a lawyer is known as a solicitor, whereas courtroom attorneys are called barristers.) Lawyers can help you register your patent or trademark, or they can negotiate and write up business contracts.  If you are ready to buy a home or business, an attorney can prepare all of the necessary paperwork for you.  Attorneys also are well-versed in preparing wills and trusts.  An online attorney directory can provide you with a list of law firms and offer a lawyer directory to make the process of finding a great lawyer in the particular area you need much easier for you.

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5Jan/100

Illinois Domestic Battery Law

Domestic Battery Fact Sheet

Important Information about the Charge of Domestic Battery

 

            Domestic Battery: A case of battery involving family members.  Family members include people related by blood or marriage, share a home, that have or had a dating relationship or that have a child in common.

            Domestic Battery is a Class A misdemeanor.  The possible penalties are up to a year in jail and a fine of up to $2,500.  Other possible penalties include “conditional discharge” or “probation”.  Either of these will last for a specific time and include certain court orders.  These orders may include community service, domestic violence counseling, alcohol and/or drug counseling.  Court Supervision is not an available option, unless there is an agreement to reduce the charge to simple battery.

            Aggravated Domestic Battery is a Class 4 Felony.  The possible penalties are up to three years in prison and a fine of up to $25, 000.00.  There is a possibility of probation with court orders as outlined above.

            Supervision: There is no possibility of Court Supervision for Domestic Battery.  Unless the case is dismissed, the charge amended or the person accused is found not guilty at a trial, a charge of Domestic Battery will result in a criminal conviction.  A conviction means a criminal record with the arresting police, the Illinois State Police and the Federal Bureau of Investigation (FBI).  It means fingerprints and mug shots.

            State’s Right to Proceed All documents in the case refer to “The People of the State of Illinois v. The Defendant”.  The person who is the victim in the case does not have the power to decide whether the case should be prosecuted. That is the sole decision of the State’s Attorney. 

            Bonding Information   After being arrested for Domestic Battery release requires a bond be posted in either the form of a deposit for the entire amount of the bond (C bond), a deposit for 10% of the bond required (D bond) or a promise to pay a certain amount of money for failing to appear in court, sometimes known as personal or individual recognizance bond (I bond).   A judge determines the conditions of release.

            Conditions of Bond.  In a case of Domestic Battery, there are typically two special conditions of bond.  The first is that the defendant have no contact with the alleged victim for 72 hours following release from custody.  The second is that the defendant turn all firearms over to the police.  Failure to comply with either of these conditions can result in separate charges and cause the defendant to be arrested again.

            Order of Protection.  Often the alleged victim will request an Order of Protection related to the criminal charges.  These orders are usually granted on an emergency basis, which are good for 21 days.  After that there needs to be a hearing on whether the order will be extended and under what conditions.  The defendant can be ordered to stay away from certain people and places, to turn over certain property and to engage in specific conduct such as psychological or drug evaluations.  It is important to have a lawyer to either contest an Order of Protection or to limit its effect.

            Discovery: This is the process by which the state must provide to the accused the evidence that it has against him.  Gathering this evidence is extremely important to the defense.

           Motions: A Motion is a request by an attorney asking the judge to order that something be done. Some motions, if successful, such as Motion to Quash Arrest, Motion to Suppress Evidence, Motion to Suppress Statement, can result in the case being dismissed. Experienced lawyers keep an eye on the case and the evidence to determine if there are important motions to be made that affect their client's freedom.

           Plea Agreement: This is when the State's Attorney, defense attorney and defendant agree what penalty will be imposed if the defendant pleads guilty to the crime. Often the trial judge also participates in the agreement. Many cases are finished in this fashion, and an experienced lawyer knows what the usual penalties are for specific situations. In that way he can arrange for the best possible outcome for his client.

           Trial: In the event that there is no agreement in return for a plea, (or the case is not dismissed by way of a motion) then a trial is held, and the defendant maintains his plea of not guilty. At trial the state presents evidence to either a judge (bench trial) or a jury. The state must prove the defendant's guilt beyond a reasonable doubt. If this does not happen, the defendant is found not guilty and the case is over. If it does happen, then the defendant will have a penalty imposed by the judge who presided at the trial.

 For additional information please visit:  The Crime of Domestic Battery & Domestic Battery Fact Sheet.

                                                        © 2007 Shestokas, Raines  & Malavia

http://shestokas.com/Your_Attorneys.html

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12Jun/090

Law on Wrongful Termination in California

 

At the on set, an employment issue may be easy to handle and resolve. As the process goes on, you will come to a realization that you cannot do it by yourself especially when the issue involves termination.

 

If you have been wrongfully terminated, it will be an unwise idea to deal with your employer alone and agree on something without any legal aid.

 

Remember that your employer has on its side expert termination attorneys who will make everything possible to defeat your claim or give you less. At this stage, you need a termination laws attorney.

 

Laws on wrongful termination vary on every state. The appreciation of the facts and circumstances of each case also differ. Like the laws of California on wrongful termination is different from that of New York or Alaska.

 

Wrongful Termination under California Law

 

Wrongful termination means at its broadest, as any illegal termination under state or federal law. In its narrowest use, it means that which violates California’s “public policy”. It also means that which courts have ruled as based on illegal grounds.

 

The California courts have expanded the above definition to include termination that is caused by:

 

refusal to do something illegal;

 

doing something which the California or federal law gives you the right to do;

 

complaints on work related matters;

 

complaints to a third party about your employer;

 

reasons that just do not “feel” right; or

 

 reasons used to “cover up” another reason

 

In California, wrongful termination is often difficult to prove. Unless and until an employee is hired pursuant to a union contract or an individual employment contract, the employer-employee relationship is considered to be "at will." 

 

However, the "at will" relationship can be modified either verbally or through custom or practice. 

 

These modifications can be made through assurances for continued employment made by employer. It can also be modified if the company did not follow its policy on progressive discipline contained in the employment handbook. Their existence means that the employment relationship has been modified so that an employer could be required to establish "good cause" prior to terminating an employee.

As the individual facts and circumstances are considered in a termination claims, it is important that the employee keep copies of any appointing letters, employee handbooks or manuals and performance review so that the assessing attorney can better evaluate the facts surrounding your case.

 

Two Branches of Wrongful Termination Law

 

1. Wrongful termination in violation of public policy

 

This aspect of law provides the terminated individual with a cause of action against the employer based on strong public policy. Examples of this include:

 

·        Anti-discrimination laws

 

·        Whistle-blower protection laws

 

·        Miscellaneous laws

 

The first two categories are self-explanatory. On the other hand, miscellaneous laws include, but not limited to, the following:

 

·        California Family Rights Act which provides time off for serious health condition of the employee or a family member

 

·        Pregnancy Discrimination Act which provides for time off for childbirth, and

 

·        Other Labor Code sections that provide for time off for jury duty, for breast-feeding infants, for parents to visit their children’s schools.

 

 Wrongful termination for “breach of implied contract”

 

The “at will” employee, in using this ground, must prove several factors such as employer’s consistent practice of progressive discipline and termination only “for cause”; length of employment; history of steady promotions and raises and employer’s violation of its own internal rules and procedures.

 

In terminating employees, employers in California must observe the substantial as well as procedural aspects of the law. Otherwise, it will result to wrongful termination.

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