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.

Domestic Violence Injunctions

An injunction is an order from the court that legally requires the subject of the injunction (the respondent) to NOT do something. In the case of a DV injunction, this will likely involve no contact with the alleged victim. However, the Judge can order any action that is believed necessary to ensure the safety of the alleged victim. The safety of the alleged victim is the foremost concern of the Court in a DV case, and rulings will often be on the side of caution.

The alleged victim requesting the injunction (the petitioner) will fill out a form and file it with the appropriate clerk of court (the appropriate place to file is where the petitioner lives, where the respondent lives, or where the alleged act of domestic violence took place).

The Judge will then review the petition and take into consideration all relevant facts. From the Florida Supreme Court’s Family Petition for Domestic Violence Injunction Instructions here are some relevant factors to be considered:

1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.

After the Judge reviews the facts of the surrounding the petition, he or she will determine if the allegations in the sworn affidavit show an imminent danger of domestic violence, or that the petitioner was a victim of domestic violence (shown by “competent substantial evidence.”)

In domestic violence situations, the chief concern is for the alleged victim’s safety, and in determining whether the facts show an imminent danger of domestic violence, the Judge will err on the side of caution. Therefore, it is less likely that the Judge will deny the petition outright. However, the allegations must rise to the level of “immediate and present” danger. Florida Statute 741.30. For example, the petitioner, John Doe, alleges that he should be granted a DV injunction. He alleges in his affidavit that the respondent said something along the lines of “if you keep bugging me, you may someday regret it.” The respondent has not previously caused harm or threatened to cause harm to John Doe or anyone close to him, and has no criminal history. Here, the judge may not find that this vague comment rises to the level of immediate and present danger of domestic violence to John Doe.

If the Judge does find that the petitioner was the victim of domestic violence or there is an imminent danger of domestic violence, he or she will issue an ex-parte (ex-parte means the judge only considers one-side- the allegations of the petitioner) temporary injunction against domestic violence. The respondent will likely not have the opportunity to be present or tell their side of the story prior to the granting of a temporary injunction. Once the temporary injunction is granted, the judge will set a date for hearing on a final injunction. In the interim, once the respondent is served with the injunction (if you have not been properly served the injunction process cannot go forward), the respondent will be required to have no contact with the alleged victim. No contact means NO CONTACT (including any calls, text messages, social media messages or asking a third-party to reach out the alleged victim on your behalf), and the injunction is violated, the respondent could face separate criminal penalties. The temporary injunction will be valid for 15 days or until the final hearing (whichever is sooner) unless good cause is shown for an extension of time.

The final hearing is an evidentiary hearing, which means that the respondent and petitioner will both have an opportunity to be in attendance and present evidence in support of their case. Witness testimony, text messages, voicemail, videos, photos, and call logs can all be used as evidence. While it is not required for you to have an attorney present at a final injunction hearing, you will be allowed to have an attorney there to assist you and make arguments on your behalf. While the rules of evidence are somewhat more lenient in an injunction hearing, it is still a serious judicial procedure and having effective counsel to assist you can make a large difference in the outcome.