What's the difference between a felony and misdemeanor domestic battery?
A first-time domestic battery is a class B misdemeanor. A second-time domestic battery is a class A misdemeanor if it occurs within 5 years of your first conviction. If you make the mistake of catching a third domestic battery with 5 years of your second conviction then you are likely to get charged with a person felony. The Kansas domestic battery law that outlines this is below:
21-5414. Domestic battery. (a) Domestic battery is:
(1) Knowingly or recklessly causing bodily harm by a family or household member against a family or household member; or
(2) knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.
(b) Domestic battery is:
(1) Except as provided in subsection (b)(2) or (b)(3), a class B person misdemeanor and the offender shall be sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the offender to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program;
(2) except as provided in subsection (b)(3), a class A person misdemeanor, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a second time and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program. The offender shall serve at least five consecutive days imprisonment before the offender is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections; and
(3) a person felony, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a third or subsequent time, and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $7,500. The offender convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the offender has served at least 90 days imprisonment. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections. If the offender does not undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, the offender shall serve not less than 180 days nor more than one year's imprisonment. The 90 days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program.
(c) As used in this section:
(1) "Family or household member" means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. "Family or household member" also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and
(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(A) "Conviction" includes being convicted of a violation of K.S.A. 21-3412a, prior to its repeal, this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(B) "conviction" includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(C) only convictions occurring in the immediately preceding five years including prior to July 1, 2001, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and
(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.
(d) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section or an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits only twice during any five-year period.
How does this "counting up of priors" work in practice?
The answer to this case question is found by reading: State v. Johnson, 7 P.3d 1267 (Kan. Ct. App. 2000).
Answer: If you get a third domestic battery conviction within any five year period
This case explored the issue of when domestic battery was considered a felony offense rather than a misdemeanor offense. In exploring this issue, the court held that an individual who received a third domestic battery conviction within a span of five years was convicted of a felony domestic battery offense. Id. at 1267.
In this case, the defendant was convicted of felony domestic battery, criminal damage to property, and criminal trespass. Id. The defendant admitted to having two previous convictions for domestic battery. Id. Therefore, the trial court determined that the defendant’s current offense for domestic battery was a felony because of his two prior convictions for domestic battery. Id. On appeal, the defendant argued that under the plain language of the battery statute, he was guilty of only misdemeanor battery, not felony battery. Id.
In order to address the defendant’s argument, the court looked to the Kansas statute on domestic battery. Id. The domestic battery statute stated: (1) Upon a first conviction of . . . domestic battery, a person shall be guilty of a class B person misdemeanor; (2) If, within five years immediately preceding commission of the crime, a person is convicted of . . . domestic battery . . . a second time . . . such person shall be guilty of a class A misdemeanor; and (3) If, within five years immediately preceding commission of the crime, a person is convicted of . . . domestic battery . . . a third or subsequent time . . . such person shall be guilty of a person felony. Id. With this in mind, the defendant understood the statute to read that an individual needed three prior domestic battery charges before the fourth one becomes a felony. Id. Therefore, in the defendant’s case, he thought he should have been charged with a misdemeanor (under subsection (2)) because he only had two prior domestic battery convictions in the preceding five years. Id.
The Court of Appeals of Kansas acknowledged that the language in the statute was a bit unclear. Id. at 1268. According to the court, the phrase “within five years immediately preceding commission of the crime” was redundant. Id. Additionally, the court noted that the phrase was nonrestrictive, meaning the phrase was not essential to the meaning of the sentence. Id. Furthermore, the court noted that removing the nonrestrictive element from the sentence would leave, “If a person is convicted of a violation of this crime a third or subsequent time under circumstances which constitute a domestic battery, such person shall be guilty of a person felony.” Id. Nevertheless, the court noted that it was clear to them that the Kansas body who wrote the statute intended to increase the penalties for each successive offense. Id. Therefore, the defendant’s conviction of felony domestic battery was upheld. Id. at 1269.
In conclusion, the Kansas statute states that an individual will be convicted of a felony if he or she receives a third domestic battery conviction within a five-year span. Id. at 1267.
Are there other ways to get charged with a felony domestic battery, even without prior convictions?
Per the letter of the law, No. However, you can get charged with an aggravated domestic battery if during the course of a domestic battery you imped the victim's ability to breath. You can get charged with aggravated battery that is tagged a "DV case" if you seriously injure someone in the course of the domestic battery.