Domestic Violence Attorneys Palm Beach and Broward County
Pursuant to Florida Statute 741.28, Domestic Violence means “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”
“A 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.”
Pursuant to Florida Statute 741.2901(2), “it is the Legislature’s intent that domestic violence be treated as a criminal act rather than a private matter. For that reason, criminal prosecution shall be the favored method of enforcing compliance with injunctions for protection against domestic violence. The state attorney in each circuit shall adopt a pro-prosecution policy for acts of domestic violence. The filing, non-filing, or diversion of criminal charges, for charges of domestic violence shall be determined by specialized prosecutors over the objection of the victim, if necessary.”
Prosecutors treat domestic violence very seriously, and will go above and beyond to secure convictions. Prosecutors are reluctant to dismiss domestic violence charges or impose the minimum sanctions.
Penalties for Domestic Violence Battery
Although domestic violence battery is only a first degree misdemeanor, domestic violence battery is punished more severely than simple battery. The following are the minimum penalties that a court must impose for a defendant convicted of domestic violence battery.
- A defendant must be placed on probation for 12 months.
- A defendant must complete the 26 week Batterers’ Intervention Program as a condition of the probation, unless the court states on the record why a batterers’ intervention program might inappropriate.
- A defendant must be ordered to pay a $201 domestic violence surcharge. $85 dollars out of the $201 dollars will be deposited into the Domestic Violence Trust Fund.
- A defendant must be ordered to pay a $151 rape crisis fee to be deposited into the Rape Crisis Program Trust Fund.
- A defendant shall have no contact with the victim during the defendant’s probation.
- If a defendant is adjudicated guilty of a crime of domestic violence, and the defendant has intentionally caused bodily harm to another person, the court shall order the defendant to serve a minimum of 5 days in the county jail as part of the sentence imposed.
Domestic Violence Charges and First Appearance
Pursuant to Florida Statute 741.2901(3), when a defendant is arrested for an act of domestic violence, the defendant shall be held in custody until brought before the court for admittance to bail. In determining bail, the court shall consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released.
For many crimes, a Defendant is allowed to “bond out” prior to First Appearance. A person arrested for domestic violence is not allowed to “bond out” prior to First Appearance. The judge must review the arresting officer’s report, make a probable cause determination, and set bond by applying the relevant law and considering the above listed factors.
The First Appearance judge will also impose a no contact order, a type of injunction, as a condition of the defendant’s pre-trial release. This means that the defendant cannot have any direct or indirect contact with the alleged victim. A defendant cannot text, write, e-mail, call, or visit the alleged victim. A defendant cannot ask another person to contact the alleged victim. However, if the defendant and alleged victim have children, the judge may allow third party contact for purposes of communicating about children. A defendant who violates the no contact order by having direct or indirect contact with alleged victim violates one of the pre-trial release conditions. The violation of pre-trial release may cause the First Appearance judge to estreat (or revoke) the bond, preventing the defendant from leaving custody until his or her case is resolved. Additionally, the State may file a new charge for Violation of Pre-Trial Release conditions, a first degree misdemeanor.
How can I lift the No Contact Order?
It is important to remember that only a judge can lift the no contact order. A no contact order is typically lifted by an attorney filing a “Motion to Lift the No Contact Order.” This motion will then be set for hearing at the courthouse. Notice of the hearing will be sent to the alleged victim in the case. The victim must be present for the judge to entertain the motion. The judge will not lift the no contact order unless the alleged victim is in agreement. Additionally, the judge does not have to lift the no contact order even if the victim wants it to be lifted. The judge may lift the no contact order completely, allowing lawful contact between the defendant and the alleged victim.
What happens at the hearing to lift the No Contact Order?
During the hearing, the defense attorney will ask the victim several questions, including:
- Is the victim currently in fear of the defendant?
- Does the victim want the Defendant to move back into the home?
- Does the victim want the Defendant to be able to have full contact, or restricted contact?
The judge will listen to the alleged victim’s answers, observe his or her demeanor and make a decision regarding lifting the no contact order.
What if the alleged victim wants the charges to be dropped?
Many people believe that the victim decides whether to “drops charges.” This is incorrect. Only the Assistant State Attorney assigned to the case has the power to drop the charges. The judge can’t drop charges either. The Assistant State Attorney may consider the participation of a victim in the prosecution of their case, but ultimately the decision rests with the Assistant State Attorney. If a particular defendant has a history of violence, the Assistant State Attorney is very likely to proceed to trial with only an independent witness (police officer, friend, family member) to the domestic violence crime.
Do the charges get dropped if the victim refuses to testify?
Not necessarily. In many cases, the Assistant State Attorney does not need the victim to testify to prove the State’s case. For example, if there was an independent witness to a battery, the State can prove their case without the victim’s testimony.
Can a Domestic Violence charge be sealed or expunged?
No. Pursuant to Florida Statute 943.059, any conviction for a crime of domestic violence (including domestic violence battery), cannot be sealed or expunged. This law applies to situations where a defendant received a withhold of adjudication for a crime of domestic violence. Therefore, it is very important to consult a criminal defense attorney who will explore all possible defenses, and who may be able to get the charge dismissed or reduced.
Defenses to Domestic Violence Battery
The most common defenses to Domestic Violence Battery are that either the defendant didn’t commit a battery at all, or that the defendant committed the battery, but acted in self-defense. Every case is different and requires the experience of a criminal defense attorney to ask the correct questions and apply the appropriate defense or defenses.
A criminal defense attorney may consider: Is the defendant claiming self-defense? If so, what are the relative physical capabilities and capacities of the defendant and the victim? Does the victim have a reputation for being violent and dangerous?
Is there 911 audio? Can any of the audio be redacted for various evidentiary reasons? Are there photographs of the victim’s injuries? Do the photographs corroborate the victim’s sworn statement? Are there independent witnesses? Does the victim want the charges dropped? What is the relationship between the defendant and the victim? Is there a motive for the victim to lie such as allegations of infidelity or child custody issues?
If you have been arrested or charged with any Domestic Violence offense in Palm Beach County, Broward County, Martin County or Dade County please do not hesitate to contact a Palm Beach criminal defense attorney from Bottari & Doyle at (561)-588-2781 for a free consultation.