“Restraining Orders”: What Are They?

People often call us asking for assistance in getting a “restraining order.” And a “restraining order,” actually called a temporary restraining order (often referred to as a “TRO”), is a type of order that one can obtain from a court that legally prohibits someone from doing something. But a temporary restraining order is just that: temporary. What people usually mean when they ask about a “restraining order” is an injunction. A temporary restraining order is issued by the court as one step in the process that can end with an injunction, which is essentially identical to a temporary restraining order but is in effect for a longer period of time.

Most commonly, people want to get a “restraining order” because someone is seriously bothering, harassing, threatening, stalking, or even attacking them or their child. And there are three types of restraining orders and injunctions that we most commonly pursue for people or defend people against.

Domestic Abuse TRO’s and Injunctions

The first is a domestic abuse restraining order and injunction. Most commonly, this involves a boyfriend or girlfriend, or ex-boyfriend or ex-girlfriend, engaging in abuse. But under the law, this type of restraining order and injunction applies not only to be people who were or are in an intimate or dating relationship, but also to family members, adult caregivers against adults who they are caring for, current or former spouses, or people who have a child together.

The law defines domestic abuse as the intentional infliction of physical pain, injury, or illness, the intentional impairment of physical condition, sexual assault, intentional damage to property, or a threat to engage in any of those behaviors. If someone you are or were in an intimate or dating relationship with, if a family member, if an adult caregiver of yours, if a former or current spouse, or if a person you have a child with has engaged in any of those behaviors against you, you can pursue a domestic abuse temporary restraining order and injunction against him or her.

Harassment TRO’s and Injunctions

The second common type is a harassment restraining order and injunction. That can be pursued by anyone, against anyone, regardless of what kind of relationship you do or don’t have with the other person.

Harassment is defined by law as striking, shoving, kicking, child abuse, sexual assault or stalking, or threatening or attempting to do any of those things. It is also defined as engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose. If anyone—a co-worker, a person who lives in your apartment building, a neighbor, a person you see on the street, the guy at your local coffee shop, anybody—has done any of those things to you, you can pursue a harassment temporary restraining order and injunction against him or her.

Child Abuse TRO’s and Injunctions

The third type of restraining order and injunction that we often receive calls about is child abuse. This is most often filed on behalf of a child by a parent (although it can be filed by a stepparent or a legal guardian) and can be filed against anyone committing abuse or threatening to do so against a child.

How You Go About Getting One

The process of obtaining a TRO and eventually an injunction begins by filing a petition. A person can do this him or herself or an attorney can do it on his or her behalf. It can be very helpful to have the assistance of an attorney experienced in preparing and litigating TRO/injunction petitions; an attorney is familiar with the law, familiar with the legal standards for domestic abuse, harassment, and child abuse, and can craft the petition to meet the legal standards. The petition is filed with the clerk of court. It is promptly reviewed by either a judge or a court commissioner. If the judge or court commissioner finds that the allegations provide reasonable grounds to believe that the person named in the petition—called the “respondent”—has engaged in domestic abuse, harassment, or child abuse, a temporary restraining order is issue.

What It Is And What It Does

The temporary restraining order is an order of the court. It temporarily restrains the respondent from engaging in further abuse or harassment and from contacting the person who filed the petition, who is called the “petitioner.” Violating the TRO can result in criminal charges; that is the protection afforded by the TRO.

What Happens After I Get The TRO?

At the same time that the judge or court commissioner issues the TRO, a date and time for a hearing on the petition is set. The TRO is in effect until the hearing.

Once the TRO has been issued and a hearing date has been set, a copy of the petition and the TRO, with the hearing time and date, must be served upon the respondent. The purpose of service is to make sure that the respondent is aware of the allegations and when the hearing is.

What Happens At The Hearing?

At the hearing, the petitioner can present testimony and other evidence to the judge in support of the petition. The respondent, in turn, can also present evidence defending against the allegations. If the judge finds reasonable grounds to believe that the respondent engaged in abuse or harassment, an injunction will be ordered.

If the petitioner fails to show up for the hearing, as sometimes happens, the court will dismiss the petition for what’s called “failure to prosecute.” If the respondent fails to show up for the hearing, the injunction will be granted by default.

How Long Is It In Effect?

Under normal circumstances, an injunction can be put in place for up to four years, or for a shorter period of time if the petition would prefer that. In more extreme circumstances—for example, if a petitioner in a domestic abuse case demonstrates that the respondent has engaged in sexual assault—the injunction can be ordered for ten years.

As with the TRO, if the respondent violates the injunction by continuing to engage in abuse, by threatening to do so, or by contacting the petitioner, he or she can be charged with crimes.

Firearm Surrender

Another very important aspect to TRO’s and injunctions is that a respondent against whom an injunction is ordered may have to surrender any firearms he or she owns or has in his or her possession to the sheriff. This requirement provides additional safety to the petitioner, but it is also something a respondent should be aware of in determining how to defend him or herself from a petition.

If you or your child have been subjected to abuse or harassment, the law can help protect you. You should contact an attorney experienced in prosecuting TRO’s and injunctions to discuss your options. Likewise, if someone has filed a petition for a TRO and injunction against you, you should contact an experienced Dane County or Wisconsin attorney, like the attorneys at Nicholson & Gansner, S.C., to help you understand your options.

You’re 18, Right?

nickgansner —  November 17, 2014 — Leave a comment

As a firm that specializes in sex crimes, we talk with clients almost every day who have, like most of the general public, misconceptions about the law. The area of sex crimes is no difference, and in many cases, this area may have more misconceptions than any other area of law. One area that frequently comes up is charges related to sexual interaction with an individual who is a minor. There are many common misconceptions when it comes to dealing with minors, the biggest of which is how whether or not you know that an individual is under eighteen years old.

How Was I To Know?

The two biggest examples of this type of situation tend to be one of the following two reasons:

– I thought they were/looked over 18.
– They told me they were over 18.

The first reason given, is in not a legal defense. The reasoning is quite simple, it would be what everyone who was charged with sexual assault of a child said, and there is usually no way to definitively prove that someone did or did not believe someone to be a certain age, save for a recorded or written statement. The second reason, having been told that the other individual was over eighteen, is also not a legal defense, for much the same reason. In the same way teenagers typically misrepresent their age in attempts to secure cigarettes or alcohol, and hold the sellers responsible to verify the purchaser’s age, we also hold the individual engaging in sexual intercourse/contact. We often hear stories about an underage girl who was brought to a campus party, or snuck into a bar, and how someone would assume they were eighteen or even older, which is understandable, but it is up to you personally to make sure that your partner is how old they say they are.

What Am I Supposed To Do, Ask For An ID?

It is usually sarcastically when someone says “what was I supposed to do, ask for her ID?” but that might be one of the best ways to protect yourself. Yes, that question could be a bit of a mood killer, but at the end of the day, you are responsible for your actions, and are the person who has to protect yourself. While this could sabotage a few late night encounters, it eliminates the risk of being charged for sexual assault, which has much larger repercussions.

“You have the right to remain silent. Anything you say can, and will be used against you.” The first lines of your Miranda Rights are fairly recognizable from movies or TV. If you are a fan of cop or lawyer shows, you probably already know it by heart. Having to be read your Miranda Rights is an important facet of criminal law, it prevents a person from unknowingly giving up their fifth amendment right, as well as serving as a preventative measure for law enforcement officers abusing an individuals ignorance of the law.

When It Happens

Miranda Rights are to be given at a very specific time, when you are in custody, and are about to be directly questioned about something. For example, if you are arrested and brought to the police station, you have been taken into custody. If afterwards, you are brought to the interrogation room, prior to questioning, you should be read your rights. By having your Miranda Rights read to you, you are reminded of your right against self-incrimination, and thus any statement you make willingly after having waived those rights, would be admissible as evidence against you, should you be charged with a crime. If you do not waive your rights, or you ask for an attorney to be present to represent you during questioning, law enforcement is required to refrain from questioning you.

Initial Contact

Many people’s first inclination when asked a question by the police is to answer it. However, if you are suspected to have committed some sort of criminal action, this is inherently against your interest. Most people do not realize this, and it is only after they are taken into custody that they realize their statements were not helpful towards them. We have at least one call a week during which someone has initial contact with police, gives what amounts to a confession, and the result of this is that they are arrested and charged. When they call our office, they want to know if their case can be thrown out since they had not been read their rights. The answer is simple: No.

Why is this, after all, it was a statement to the police? But if that was the case, everyone would have to be read their rights any time they were speaking with a member of law enforcement. Remember, there are two things that need to be present to trigger the reading of your Miranda Rights, 1.) Being in custody and 2.) being directly questioned about an incident or event. In the above example, a person is not in custody, and is simply making a voluntary statement to police, they are not formally being questioned by law enforcement. While that distinction may seem vague to some people, it is important and makes all of the difference.

What Happens If My Rights Are Violated?

If your Miranda Rights were violated, there is a possibility that the case against you may be able to be dismissed. Contact the attorneys at Nicholson & Gansner, S.C. to share your story.

As a firm that specializes in conflict crimes, a large portion of which are sex crimes, we receive calls on a variety of issues. One frequently asked-about topic is something commonly referred to as statutory rape, or sexual intercourse or contact with a willing individual under eighteen. This area seems to have the most myths and misconceptions, which we are going to debunk in this blog post.

A common question in statutory rape situations involves two young individuals, often high school students. One of those students turns eighteen, while the other student is still seventeen or younger, and they have consensual sexual intercourse (as defined by statute), or sexual contact. There are a lot of myths about this situation: that it isn’t illegal if both students are still in high school; if the age difference is under two years; if their parents are okay with their relationship, etc. The list goes on and on, but the truth of the matter is this: sexual intercourse or sexual contact with someone under 18 is illegal and can result in the charging of the party who is over eighteen.

Romeo & Juliet Laws

Some states have what are referred to as “Romeo & Juliet” laws, which reduce or eliminate criminal penalties in cases where the two parties both willingly engage in sexual contact but have not reached the age of consent, or one party has not but the difference in age is relatively small. For example, in some states such a case might still be criminally charged but the “Romeo & Juliet” law may prevent the defendant from being required to register as a sex offender. The nuances of these laws vary state to state. Wisconsin, however, DOES NOT have any form of a “Romeo & Juliet” law.

Brass Tacks

In Wisconsin, a sexual assault of a child occurs when any individual engages in sexual intercourse or sexual contact with another individual who has not yet reached the age of sixteen, or engages in sexual intercourse with an individual who has not reached the age of eighteen. There are no exceptions to these laws based on consent, relationship status, or whether or not the minor would like charges pressed. The severity of the charge can vary depending on the age of the minor, whether force or the threat of it was used, and whether the defendant caused great bodily harm. For example, someone who has sexual intercourse with a child who is over sixteen at the time of the alleged act could only be charged with a misdemeanor, not a felony. If there was only sexual contact (as opposed to sexual intercourse, again as defined by Wisconsin statute) and the minor was over sixteen, the person could not be charged with a sexual assault. If the minor is under sixteen, this would result in felony charges.

The victim of a sexual assault does not have the ability to decline to press charges, despite what you see in movies and on TV. The State of Wisconsin is the entity who is pressing charges, and can do so even if the victim asks them not to. A person who is charged with any form of sexual assault is almost certainly going to have bond conditions that prohibit any form of contact with the complainant during the entire pendency of the case.

Charging & Sentencing

When a defense attorney talks about a “charging decision” she or he is referring to the process in which a prosecutor reviews the police reports, considers the reported facts of a case, and makes a decision on whether or not to charge an individual and, if so, what charges will be issued. Nicholson & Gansner offers pre-charging services, in which our attorneys will contact the district attorney’s office in an attempt to advocate on your behalf before a charging decision is made. This of course requires knowing that you are being investigated, which is evident if the police approach you for any statement regarding an incident of sexual contact. The safest thing for you to do in this situation is to politely and respectfully decline to answer any questions (invoking your 5th Amendment right to remain silent) and immediately contact a defense attorney. The decision to charge a crime, particular child sexual assaults, depends on a variety of factors, including evidence, victim statements, and circumstances of the offense. In certain situations, a persuasive argument can be made and that can result in the avoiding of charges being filed.

Sentencing is the final portion of a criminal case, whether it is the result of a plea negotiation or a conviction at trial. It is worth noting that sentences tend to be less stringent for those willing to take responsibility for their actions and enter into a plea deal. A sentencing hearing is the defendant’s opportunity to tell their side of the story fully, and invoke facts or circumstances that would not necessarily be admissible during a trial. Sentences can vary to widely depending on the facts of the case, the rehabilitative needs of the defendant, the degree to which a defendant accepts responsibility, and sometimes the amount of treatment and rehabilitation the defendant has already initiated. A vitally important part of the sentencing process is the presentation by the defense attorney of the facts most favorable to the defendant.

High Stakes

While two young people engaging in sex may not seem like the most serious crime, sexual assault charges should always be taken very, very seriously. In addition to a criminal conviction, there are other outcomes that can very seriously effect how an individual is able to live their life. A conviction of sexual assault commonly requires individual to register as a sex offender. Sex offender registration, and being supervised on sex offender probation, usually forbids contact with minors, as well as being around schools, parks, and other places that minors congregate. This means that an eighteen year old could have difficulty residing in their parents home should they have a younger sibling, or seeing any of their friends.

If you or someone you know is currently facing sexual assault charges in Madison, Dane County, or anywhere in Wisconsin, call our offices for a free consultation. Our lawyers have a long history of sexual assault defense and can vigorously defend you and advocate for the best outcome possible.

There is no doubt about it, raising a child—whether as a couple, a single parent, or a parent with very limited help—is a lot of work and can be difficult in the best of circumstances, let alone if you are facing criminal charges. Criminal charges can have far reaching consequences on many fronts, including whether or not you will be sentenced to a period of incarceration. We have many clients who state “but I can’t go to jail! What about my kids?” This is a real problem that many people face. A period of incarceration, no matter how brief, can be expensive, and in some cases, effect whether or not an individual will be able to maintain custody of their children.

It might be hard to hear, but having part of sole responsibility for raising your child is not something that will prevent you from being sentenced to jail or prison. The argument that you can’t afford it, or there is no one to watch your child/children, does not negate the fact that you committed a crime, and will be sentenced for it.

Be Realistic & Know Your Options

When a person is sentenced it is based on a several factors, and a judge can take your domestic or family situation into consideration when you are sentenced. There are a few different possible outcomes other than incarceration, however those depend on your criminal history, what charges you are being sentenced on, and case specific facts.

The first thing we will consider is the charges that you are currently facing, which correlates to the sentence you are likely to receive. For a minor charge, such as a low level misdemeanor, you may be able to avoid jail time. Being charged with a mid-to-high level felony, however, means you may be sentenced to prison time, and generally speaking it means you are less likely to receive a sentence that does not involve incarceration. Some charges carry a mandatory minimum. For example a five-year mandatory minimum would mean that a judge cannot sentence you to anything less than five years in prison. Obviously, if you are facing a severe charge, or a charge with a mandatory minimum, we need to be realistic in our expectations.

The next thing we can consider is your criminal history. An individual who has a clean record, or minimal criminal history, who is charged with a more serious crime may be able to minimize or even avoid incarceration altogether. This is in no way a guarantee, but it is part of a set of facts that can be used to your advantage in negotiations with the prosecutor and argued in your favor during your sentencing. One of the last things to consider is what your situation is overall. An individual who is a stay at home parent is in a different situation than a single parent. The availability of family and friends to help take care of the child/children is another factor that can be considered.

Making An Argument

A defense attorney can base part of their argument at sentencing on these factors. For lower level offenses, and offenses committed by first time offenders, detailing the situation can help to persuade a judge to be more lenient or consider other options aside from incarceration. What are the other options that a judge can sentence you to? Probation, GPS monitoring, Huber, amongst other things are possibilities. GPS monitoring or Huber both can take place during a jail sentence. Huber can allow you to have hours allotted for child care during the day, and thus you would be released for certain periods to help care for your child/children, but would have to return at specific times. GPS monitoring is essentially house arrest: you would be unable to leave your home expect for work, picking children up from school, pre-scheduled appointments, etc.

When everything is said and done, having children is not a valid reason to prevent someone from being incarcerated on criminal charges. When a situation like this does occur, however, it can sometimes be the deciding factor if a judge is on the fence. If you or someone that you know are currently facing criminal charges in Madison, Dane County, or elsewhere in Wisconsin, call our office for a free consolation.

When someone is charged with an OWI offense, one of the first obstacles is determining how many prior OWI-type offenses that individual has. While this may seem like task fit for a Sesame Street character, piecing together the complicated definitions of what constitutes a prior “offense” with the applicable time limits can often feel like advanced algebra. We at Nicholson & Gansner hope to offer some clarity on OWI “counting” to ensure that, if you are cited for operating a motor vehicle while intoxicated, your penalties are not increased for a prior offense that shouldn’t be held against you.

The first step in this process is trying to determine what type of prior “offenses” can be used to increase the penalties for a subsequent OWI. Aside form the obvious—a prior OWI conviction—a number of other infractions can be counted against you. Specifically, prior convictions or license suspensions for refusing to take a required test for intoxication, or administrative license suspensions or revocations from a different state that were the result of allegations of drunk or drugged driving are all “countable” offenses under Wisconsin law. Thus, in certain circumstances, if your license was administratively suspended based on preliminary test results indicating you were operating a motor vehicle with a prohibited amount of alcohol in your system, even if you weren’t ultimately convicted of the charge, the suspension could still count as a previous offense against you.

Once you determine the number of previous countable offenses, you must look at the period of time between those offenses. If you are being charged with a second offense, the previous offense must have occurred within the past 10 years. If the previous offense occurred more than 10 years before the date of the current offense, then the offense should be charged and prosecuted as an OWI—first offense, even though it is your second lifetime offense.

However, if you have two or more qualifying offenses, then the timing between the offenses does not matter. This is because, by state statute, for third and subsequent offenses, the number of priors is determined by counting the total number of lifetime prior offenses. The difference between the 10-year look-back period used for second offenses and the lifetime look-back period for third and subsequent offenses can lead to the bizarre results, such as an individual being convicted of two first offenses, and then a third offense, without ever being convicted of a second offense.

A final area where the time between previous offenses becomes important is in determining whether a fourth offense is charged as a felony or as a misdemeanor. By statute, if you have committed an offense within 5 years prior to the day of the current offense, then you can be charged with committing a felony fourth offense OWI, which is a class H felony. However, if you have not had a previous offense within 5 years of the new offense, then you will simply be charged with a misdemeanor fourth offense.

Ultimately, if you are charged with a second or subsequent OWI-offense, it is important to make sure that you are being prosecuted for the proper offense number. Given the complexity outlined above, make sure to contact an attorney who is experienced in handling OWI litigation if you find yourself charged with an OWI-related offense to make sure you are not facing penalties that are more severe than they should be.

Visiting a Loved One Who Is In Custody

Incarceration is always something that is difficult no matter how short or long the time is. It isn’t just hard on the person who is doing the time; it is also hard on the friends and family of that individual. Many questions that we get from clients, and the family and friends of our clients, relate to jail and prison visitation. Here is some general information about the process.

Jail

Jail is less stringent than prison, but there are still many rules that apply, especially when it comes to visitation. Different facilities have different rules, so it is best to contact the facility well before you want to visit in order to clarify and understand the procedures. That said, here are some general practices that tend to hold true.

You can not simply show up to a jail and visit an inmate. In most facilities, an inmate is required to fill out visitor forms, which will have to be approved, before someone can come and visit. This process will check to see if the inmate is allowed to have contact with you. If you have a restraining order, a no-contact order, or there are rules in place that would prevent contact when that person is on the street, you will likely be denied visitation access. Once you have been approved, there are certain hours that you will be allowed to visit. These hours vary by facility, but typically there are hours available during the morning, afternoon, and early evening. In larger facilities, what times and days may be set by an inmates name, to prevent overcrowding.

When you show up to the jail to visit an inmate, it is best to arrive early. You may have to go wait in line, or go through security checks, which can eat into the time you are allowed to see the inmate. What you wear is also going to be subject to inspection. Simply showing up to visit an inmate gives consent to search of your person and belongings, do not bring any contraband with you. Revealing clothing is generally not permitted, and is a valid reason in most jails to deny a scheduled visit. Another common issue that people are turned away for is gang, club, or set colors or insignia. This can include anything from street affiliations to formal organizations such as motorcycle clubs.

Finally, it is important to remember that when you are having a visit with an inmate, whether it is on the phone, through a video chat, or in person, your visit is being recorded. We advise that you do not talk about specific details of their cases, as any and all things said during those visits can be used against an inmate in their current case as well as lead to future charging in other cases.

Prison

Visiting an inmate in prison can be an intimidating process. Often times you are required to enter into the facility, and continue deeper into it, which can be overwhelming to those not acclimated to the process. As with visiting an inmate in jail, you are not able to simply show up to a prison to see an inmate; you will generally need to fill out a visitor form ahead of time and receive approval to visit an inmate. The duration and times that an inmate can have visitors is generally more specific and strict than a jail facility, and thus you should coordinate a visit in advance to make sure that you are able to see the inmate.

The process of visitation in a prison is much more intensive than in jail. There is almost always a mandatory security check, which means going through metal detectors, searches of your belongings, and pat-down checks. Again, do not bring any contraband with you for these visits as not only would you likely be turned away, but you also could face criminal charges of your own for brining them onto the premises. Women should know that often times bras with underwire are not allowed into the facility, and this may trigger additional scrutiny in physical pat-downs. As mentioned above in the jail section, all interaction with an inmate is recorded, and you should refrain from discussing peculiars of the inmate’s case, especially as these conversations can lead to additional criminal charges, or effect the chances of an appeal.

If you have questions about visiting a loved one in custody, contact our office to discuss it.