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Domestic Violence

Domestic Violence and Abuse Crimes

Being convicted of a domestic violence charge can have long lasting negative effects on your ability to obtain employment, own a firearm or even see your children. If you have been charged with the crime of assault or battery against a family member, you must meet with a criminal defense attorney as soon as possible to ensure your rights are protected.

What is Domestic Violence?

Domestic violence (“DV”) is a specific type of assaultive behavior directed toward members of a person’s family or household. It generally includes spouses, parents, children, romantic partners, step-family members, grandparents and grandchildren. Florida statutes closely define the type of relationships that fall under the DV umbrella:

“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit. Fla. Stat. Section 741.28(2).

Under Florida’s DV statute, allegations of assault against a neighbor, platonic friend. or co-worker cannot be categorized as domestic violence even if the parties maintain a close relationship.

The term domestic violence refers to several criminal acts when committed against any of the above-listed family members. You may face domestic violence penalties as a result of committing the crimes of offensive touching, menacing, sexual harassment, trespass, criminal mischief, sexual assault, terroristic threatening or reckless endangerment. In other words, if the prosecution can demonstrate that you committed these crimes against a family member, the penalties and sentence may be enhanced under applicable domestic violence laws.

I Have Been Arrested for Domestic Violence! Now What?

If you have been arrested for a domestic violence charge, the procedure may seem confusing and intimidating. It is important at this stage that you speak to a criminal defense attorney who can help you through the process. Often times, DV cases rely heavily on testimonial evidence (the sworn statements of witnesses in court.) Therefore, even if you have done NOTHING WRONG, it is often not the best practice to discuss your side of the story with the police, especially without counsel present. If you have been arrested for DV, the police should have probable cause to believe you committed a crime. Their job now is to investigate and obtain evidence of this crime, and anything you say can (and likely will) be used against you!

Therefore, if you have been arrested for a DV crime and you are being interrogated by the police, you should again CLEARLY assert your right to remain silent, and CLEARLY request to speak to an attorney (saying something such as “maybe I should speak to an attorney” may not be enough to unambiguously invoke your rights.) At this point the officer must cease questioning. If you do not clearly request to speak to an attorney, the officer may resume questioning at a later time, so you should make it clear that you wish to exercise both your right to remain silent and your right to an attorney. Michigan v. Moseley, 423 U.S. 96 (1975).

The “No-Contact Order”

If you have been arrested for a crime of domestic battery, the Judge will likely issue a “no-contact” order as a condition of any pre-trial release. A no-contact order prohibits you from having any contact, direct (this includes through texts, phone calls or e-mails) or indirect (although indirect contact has not been clearly defined it includes asking a third-party to contact the alleged victim) with the alleged victim. Fla. Stat. 904.047. If you have a child in common with the alleged victim, the Judge may appoint an appropriate third-party to have contact for the “sole purpose of facilitating the defendant’s contact with the children.” Your defense attorney, however may have contact with the alleged victim. Your attorney cannot relay any messages from you to the victim, but they can investigate the circumstances of your case, and determine the alleged victim’s position on moving forward.

The penalties for violating a no-contact order are serious. The violation of a no-contact order is classified a first-degree misdemeanor. Fla. Stat. 741.29. That means it a separate criminal charge, that carries its own criminal penalties (up to one year in jail, one year of probation, and $1,000.00 in fines). In addition to the separate criminal penalties, your bond may be revoked, and you will then be held in jail awaiting trial. Further, violations of a no-contact order are “stackable” offenses. If you are repeatedly found in violation of a no-contact order, you could face years in prison. It is therefore important to discuss any no-contact orders with your criminal defense attorney who may be able to get the order terminated or modified.

Modification of a no-contact order generally occurs by motion of the defense to Modify Conditions of Release. During a motion to Modify Conditions of Release, the Judge will ask you and the alleged victim a series of questions to determine if modification of the order is appropriate. Some of these questions include:

  • Are there any prior incidents of domestic violence between you and the defendant?
  • Did you call the police? If not, why? Who called for you?
  • Would you/ will you call the police again if you feel threatened unsafe?
  • Does the defendant have any prior record?
  • Are you scared of the defendant?
  • Do you wish to have contact with the defendant?
  • Have you/ has the defendant attempted to violate the no contact order?

These questions will be sworn and heard in front of the Court. You and the alleged victims’ answers could be used against you during your criminal case, so it is important to thoroughly discuss with your defense attorney whether modification of the order is in the best interest.

DV Issues and Defenses

Penalties for Domestic Violence

Charges for domestic violence crimes are varied, and depend upon a number of factors including the method of the battery (e.g., strangulation, using a weapon, etc.), the severity of the injury, and the age or condition of the individual (e.g., the alleged victim is a child, pregnant woman, elderly, etc.).

Generally, however, without the aforementioned aggravators, domestic violence battery is classified as a first-degree misdemeanor punishable by up to one year in jail, one year probation, and a $1,000.00. If you are facing charges for domestic violence battery, Florida statutes require additional penalties in addition to the standard punishments. Chapter 741, Florida Statutes.

The additional require DV penalties include:

  • You must complete a 26-week Batterer’s Intervention Program (BIP). (See options for BIP in the 12th Judicial Circuit serving Sarsota, Manatee, and DeSoto Counties here.) Fla. Stat. 741.281
  • Additional community service hours
  • Loss of rights regarding owning and carrying firearms
  • Imposition of an injunction or ‘no contact’ order

If there is bodily injury associated with the battery, 10 days required jail time for a first offense, 15 for a second offense, and 20 for a subsequent offense.  Section 741.283, Florida Statutes

If you have been convicted of a DV charge, you will not be able to have this record sealed or expunged, even if the adjudication was withheld (a withhold of adjudication means you can legally say you have not been convicted of a a crime.). If you have been arrested for DV, the record of your arrest for a DV charge may only be expunged if that arrest was dropped. Therefore, if you plead to or are found guilty of any domestic violence charge, this offense will always remain on your criminal record.

Given the life-altering nature of a domestic violence conviction, it is imperative that you retain an experienced criminal defense attorney who can work to protect your freedom and relationship with your family. If this is your first time facing criminal charges and your history is clear of other felonies and misdemeanors, your attorney may be able to obtain leniency for you as a first-time offender, which could result in a dismissal of the pending charges.

Mr. Eisenberg is one of only a handful of criminal defense attorneys in all of Sarasota County who has been recognized by the Florida Bar as a Board Certified Criminal Trial Expert.

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1751 Mound Street, Suite #205, Sarasota, FL 34236
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