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Are we in trouble? Criminal Law

Discussion in 'Immigration Issues' started by oops123, May 3, 2015.

  1. oops123

    oops123 Law Topic Starter New Member

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    My husband has a green card, and it is due to expire next year. After nearly ten peaceful years in the US, he went out and got completely hammered over the weekend and got into a scuffle at a bar. He was beaten up by six guys. He wound up in jail with the charges of simple battery (I guess he pushed someone - let me put it to you this way, he has no bruises on his knuckles as though he punched someone, but he can barely speak from being choked, and his knees are bloody, and he has bruises all over his torso), resisting arrest without violence, and intoxication in public. Mostly, I think he was just incredibly drunk and a security guard decided it was time for him to leave and he didn't want to.

    Do we need an immigration lawyer? He hasn't even has a court date yet, but the simple battery charge concerns me.That doesn't seem like something anyone is going to overlook. It seems like if that charge sticks, he can't even naturalize, which is what we were planning to do before ask this happened. Thank you for your help.
     
  2. army judge

    army judge Super Moderator

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    I suggest you get him a criminal defense lawyer.
    I'd focus on the criminal charge first, before worrying about any immigration issues.
    Just to set your minds at ease, it can't hurt to discuss his immigration situation with an immigration attorney, too.
     
  3. oops123

    oops123 Law Topic Starter New Member

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    Thank you. I'm going to. I'm just by nature the sort who tries to understand everything in advance in order to anticipate. I also have to add that to get his green card I had to do that "hardship" waiver. We weren't sure if an old conviction (from when he was about 19 - he is 39 now) would turn up or not, so we decided to be honest on the green card application.we were already married and had two kids and were living in his home country. I spent weeks researching online.
    So I'm freaked out a bit that he already has a "special" green card anyway. We left the US once and were completely shocked when they held us back and interviewed him at the border...we weren't prepared for it at all and we couldn't even remember the details of the conviction. We haven't tried to leave since. We were planning to go to his home country this summer but I guess that might be off now too.
     
  4. army judge

    army judge Super Moderator

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    There are many great countries in which you can live in peace, work, and prosper.
    If the US authorities become difficult, consider emigrating.
    The fact that hubby is from another country, consider living there.
    These days, at least two dozen countries (if not more) exceed the standard of living and the quality of living the US maintains.
    At any rate, if hubby doesn't get help, your family will suffer no matter where you live.
    Evidently he has issues with drinking alcohol.
    You might encourage him to join AA, and seek counseling.
    You and your children can seek a support group, too.
    AA has Al-Anon, and there are many other great family support groups.
    There's no reason to drink to excess and become violent.
    That is thuggish behavior, and I'd be concerned he could harm anyone in your family.
    I do wish you well, and get him help, and your family so you know how to deal with alcoholics and violence.
     
  5. oops123

    oops123 Law Topic Starter New Member

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    That's not the case. He grew up in a sort of orphananage in eastern Europe, and made some poor choices early on mostly based on poverty and lack of parental concern. He moved on, found a new set of friends, and watched his old ones die of drugs or other poor choices before they even made it to 30. He made another poor choice this weekend. He runs his own business here, owns a home, we pay our taxes and don't do anything intentionally wrong. I understand I can live in his country, throw away my career here, say goodbye to my elderly parents, and uproot our kids, to move somewhere darn near a war zone, but at this juncture, starting over is not an attractive possibility. I know he screwed up. He knows he screwed up. I'm just ready, really worried about how badly.
     
  6. army judge

    army judge Super Moderator

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    Time will tell. I suspect congress to tighten immigration laws and begin deporting those who come here and commit crimes. That's the only answer. If it doesn't happen, thugs, beggars, illiterate immigrants who don't speak or write English will feel the backlash. It has to happen, or this country will descend into violence.

    That said, no one as a crystal ball that predicts a darn thing. Getting drunk, brawling in a bar isn't a mistake. It was and will always be a conscious set of acts that led to his problems, which you're embracing as your family's problems.
    Frankly, it's not my problem. I've never gotten drunk, brawled, or broken any of their laws. I earned a BBA, an MBA, and a JD. I served in the military for 30 years, retired as a colonel. I also retired as a judge, practiced law, and own a ranch with about 2500 head of cattle and a few oil wells pumping black tea.

    I've put it all into a family trust and bought a home in Belize. Next year, my wife and I are outta here for the very reasons I dictated above.

    I wish you well. For your sake and your children, I hope this was a couple of aberrant acts, not his true personality shining through.
     
    Last edited: May 4, 2015
  7. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I think the judge is onto something - time will tell. You might as well take a more calm approach instead of worrying about the worst "what if" situations. If he has a clean record and this was mostly about someone who needed to sleep it off in the tank (despite what he looks like after his arrest), it's possible that the charges may even be dropped. Retaining the assistance of a criminal attorney is essential and he or she can apprise you better of the likelihood of a prosecutor wanting to prolong the issue. "Battery" is a legal term for an offensive touching, even though it sounds ominous and significant. Technically if a man slaps you on the behind, that could be considered battery. Your criminal attorney will be able to compile all the facts and also the disposition of the district attorney towards a resolution that may be acceptable and workable for your husband. One step at a time. Good luck.
     
  8. oops123

    oops123 Law Topic Starter New Member

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    I got the arrest paperwork. He didn't beat anyone up. He flicked someone's beard....they pressed charges. The "resisting an officer without violence" was, after being beaten up while laying on the ground, the police told him to get on his knees and he kept standing up because his knees were bleeding and it was too painful.
     
    Last edited: May 4, 2015
  9. army judge

    army judge Super Moderator

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    None of that, if its true or false, makes any difference from a legal standpoint.
    Its always a bad idea to resist or attempt to argue with the police.
    The place to debate any charges the police levy, or any arrest the police make is a court room.




    Touching anyone, not a simple interaction in crowded mall, a subway platform, at public gathering, but simply brushing up against a man or woman (or touching a man's beard or a woman's breasts) is illegal.
    As the professor explained, its a battery.
    I'm sure you wouldn't like anyone, without your permission, to kiss you.
    That, is also a battery.




    Under Florida law, Simple Battery (Misdemeanor Battery) is a first degree misdemeanor, with penalties of up to one year in jail or 12 months probation, and a $1,000 fine. Battery is a highly defendable charge, and an attorney is critical to avoiding the harsh consequences of a conviction.




    The crime of Simple Battery or Misdemeanor Battery is defined under Section 784.03, Florida Statutes. In Florida, the term battery means:

    any actual and intentional touching or striking of another person against that person’s will (non-consensual), or
    the intentional causing of bodily harm to another person.


    Where no aggravating factors or enhancements are at play, "use of a weapon", "serious bodily injury", or "domestic violence"; the offense is known as “simple battery” or “misdemeanor battery.”

    Whether jail time is sought often depends on a number of factors, including the prior criminal record of the accused, the status and preferences of the alleged victim, the existence of injuries, the need to seek restitution, the strength of the prosecution’s case, and whether the accused is represented by an attorney.


    Is an Injury Required for One to Commit a Simple Battery?

    No. One can commit the crime of simple battery or misdemeanor battery, without injuring the alleged victim.
    An intentional touching against another person’s will is sufficient to prove such a charge at trial.
    In fact, any allegation that the touching was against the alleged victim’s will, the existence or extent of injury becomes irrelevant.
    See D.C. v. State, 436 So. 2d 203 (Fla. 1st DCA 1983).





    Must the Touching be Intentional?

    Yes. Intent is a required element of a simple battery charge.
    Any accidental or inadvertent touching of another person is insufficient to establish the alleged criminal act.
    Did the accused possess the requisite intent is a question for the "Trier of Fact" (the jury) to determine by examining the facts and circumstances of the alleged incident. Florida standard jury instructions contain references to the intent element, and a trial court is not required to specifically instruct a jury that accidental touching does not constitute a battery.
    That said, a prosecutor will make that point, irrespective of what the judge says during "jury instructions".
     
  10. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Well that is certainly better than the paperwork saying that he caused physical harm to the victim pressing charges and to the police who claimed he was resisting arrest. I will say that the police don't usually get called for just flicking someone's beard and that I'm guessing there is a reason why the police were called. Perhaps they were nearby, I don't know. But at the moment, at least there doesn't seem to be much in the way of harm in the police report, which is the first step. One can only guess what the patron will claim... but take one step at a time with a calm demeanor. Hopefully this drunken incident will be minor and I'm guessing your husband will think twice before doing so again. And as army judge suggests, the authorities are aware of the fact that some are only deterred from getting drunk by the status of their citizenship. Probably good for you to keep an eye out to make sure that it doesn't happen even after that obstacle may be removed. Good luck to you and your husband.
     
  11. oops123

    oops123 Law Topic Starter New Member

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    The arrest report says a policewoman was walking by and someone waved her over, and she pulled several people (unnamed) off of him as he was on the ground being pummeled. She got the other people to leave. She apparently kept telling my husband to stay on his knees and he kept stating, "I am going to stand up," and she would push him back down as she was attempting to do an fcic/ncic check....whatever that means. Then another officer showed up and cuffed him and hauled him off "without incident."
     
  12. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    NCIC = National Crime Information Center
    FCIC = Florida Crime Information Center

    These databases are checked to see if the arrested person has a warrant out for their arrest and other relevant information on their criminal record. So my intuition was correct. It would be interesting if nobody else was charged, despite your husband appearing to take virtually all of the actual physical violence. Perhaps there can be some cause for optimism that this might just end up being a painful lesson learned. I'd still retain a criminal attorney for the appearance without hesitation. After all that is happening in the news these days, "resisting arrest" charges are taken quite seriously.
     
  13. oops123

    oops123 Law Topic Starter New Member

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    Yes, he will meet with a criminal defense and immigration lawyer this week (same guy). I made many, many phone calls today and I feel like this one is a good fit. Thank you for your input.
     

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