Relationships with family members and/or loved ones are often complicated. Unfortunately, at times those complications become emotional, which in turn may become physical and abusive. Defending domestic violence cases can be both difficult and sensitive because it usually requires addressing the legal issues involved in the case while simultaneously understanding and balancing the relationships between the parties to the case.
what is domestic violence?
Domestic violence is not a specific charge, but rather, a classification that covers several different criminal charges. Florida Statutes define domestic violence as “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.”
Family or household member is defined as “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.”
**Remember – Once a person has been arrested for an act of domestic violence, the State Attorney’s Office – not the alleged victim / reporter, is the party that decides whether to pursue criminal charges. Often people mistakenly believe that the alleged victim in the case can decide “not to press charges” and that the case will simply go away. Although an alleged victim may certainly dissuade a prosecutor from proceeding with criminal charges – and in fact make it difficult to do so (i.e. avoids contact with the State Attorney’s Office, refuses to come to court, etc) – the State has the final say in whether or not the case moves forward.**
The general penalties in domestic violence cases depends on the nature of the underlying charge, i.e. First-Degree Misdemeanor where the domestic violence involves a battery. Domestic violence cases, however, carry many specific additional penalties that are required by statute:
Mandatory Incarceration (Fla. Stat. 741.283) – A person convicted of domestic violence that intentionally caused bodily harm to another person is required to serve a minimum of 10 days in the county jail for a first offense, 15 days for a second offense, and 20 days for a third or subsequent. However, if an act of domestic violence takes place in the presence of a child under 16 years of age who is a family or household member of the victim or the perpetrator, the court shall order the person to serve a minimum of 15 days in the county jail for a first offense, 20 days for a second offense, and 30 days for a third or subsequent offense.
Probation and Batterers’ Intervention Program (Fla. Stat. 741.281 / 741.325) – A person convicted of an act of domestic violence must be sentenced to a minimum of one year of probation and must impose the condition that the person enroll and complete the batterers’ intervention program. The court, however, in its discretion, may determine not to impose the condition if it states on the record why a batterers’ intervention program might be inappropriate.
The batterers’ intervention program is extensive – both in terms of time and cost. Generally, the Statute requires that the program last at least 29 weeks, include 24 weekly sessions, plus “appropriate intake, assessment, and orientation programming.” Additionally, the program is funded by the user fees paid by the batterers attending the program. What this means is that a person convicted of an act of domestic violence is responsible to pay for their own mandatory program, on top of court costs, supervision costs, and any investigative or restitution costs that may be applicable.
Mandatory First Appearance and Release Restrictions – Generally, a person arrested for one of the defined underlying crimes in the domestic violence statute would have a standard bond set immediately upon their arrest. That person could then, if able, post bond as soon as they are processed at the jail. For a person arrested for a case involving domestic violence, however, that person must be held in custody until they see a first appearance judge. Although a monetary bond will likely be granted at first appearance, this may be anywhere from 12-36 hours after arrest depending on the time of arrest, jurisdiction, and first appearance schedule.
In addition to monetary bond, a first appearance court commonly places many additional restrictions on a person’s release after an arrest for an act of domestic violence. Common restrictions include: no contact with the alleged victim, no contact with children the defendant and alleged victim have together or live together, no return to the residence where the defendant and alleged victim resided at the time of the offense, surrender any weapons or firearms regardless of whether such weapons were allegedly used during the offense, etc.
Ineligible to Seal or Expunge – Generally, and with extremely limited exceptions, an arrest or conviction for an act of domestic violence, regardless of the underlying offense, may not be sealed or expunged and will become a permanent part of a person’s record.
defending against allegations of domestic violence
Self Defense - Generally speaking, you have the right to defend yourself, provided you used a reasonable amount of force and did so because you reasonably believed that you were about to be harmed by another. This applies to those charged of acts of domestic violence just as it does a standard battery, assault, etc. Specifically, Florida allows both non-deadly force and deadly force self- defense, which of course depend on the facts and circumstances facing that person at the time he/she uses self-defense. Self-defense is raised as a trial defense, and the jury determines whether or not a person properly acted in self-defense and thus the use of force was legally justified. Stand Your Ground (SYG), on the other hand, is an immunity statute and contains different substantive and procedural aspects than self-defense. Generally, SYG is raised in a pre-trial motion where the defendant claims they cannot be prosecuted for whatever force they used because they were legally justified in doing so – i.e., they were standing their ground. Although a Judge can rule on this issue during trial, it is best practice to file the motion as early as possible and have the court hold a pre-trial evidentiary hearing on the matter. It is also important to remember that if a person loses a SYG Motion, that same person can still proceed to trial on a theory of self-defense. In fact, it’s not uncommon for a Judge to rule that the defendant is not entitled to immunity under SYG, but the jury then finds that person not guilty based on self-defense. Remember, although similar, the two have different burdens and are raised at different times.
Victim is Uncooperative – A basic principle of criminal law is that the accused has the absolute right to face/confront their accuser at trial. In some situations, however, the State will proceed to trial where the alleged victim cannot be found, or simply flat out refuses to participate in the prosecution. In some cases, their may be an independent eye-witness that the State relies upon in their case. Often, however, the State may be relying on the use of 911 calls or other statements made by the alleged victim at the time of the incident. In these situations, it’s crucial that a defense attorney has a detailed understanding of the hearsay rules, including exceptions for the content of certain 911 calls, “excited utterances,” and “spontaneous statements.” Properly defending the admissibility of these statements may very well be the difference in an acquittal and a conviction.
Controlled Calls or Texts – Although the law enforcement technique of controlled calls/texts are most commonly used in the investigation and prosecution of sex crimes, they may also be used in cases involving allegations of domestic violence. In Florida, it is generally illegal to record communications with another party without their knowledge and consent. An exception exists, however, that allows law enforcement officers to direct an alleged victim to do just that, provided it is done as part of law enforcement’s investigation. Practically speaking, law enforcement will have the alleged victim contact the suspect by phone, have them discuss the underlying facts of the criminal incident, with the ultimate goal of getting the suspect to confess or otherwise make a statement against his/her interest. These calls are recorded and then used as evidence against the suspect. If you believe you are being investigated for a crime of domestic violence (or any crime), it’s important to contact an experienced criminal defense attorney immediately to make you aware of these tactics and advise you on the best course of action.
Board Certified Criminal Trial Attorney Benjamin Wurtzel has handled several types of cases involving domestic violence, from misdemeanor offenses to first-degree and life felonies. Mr. Wurtzel has a detailed understanding of the procedures, laws, and evidentiary issues involved in domestic violence cases and uses that knowledge to structure a thorough and effective defense. Mr. Wurtzel also understands that these cases are often very stressful and tend to take an emotional toll on the accused. To this end, Mr. Wurtzel works with each client to develop a defense that best meets the individualized needs of the client, taking into consideration the personal – as well as legal – issues involved in the case. If you or a loved one have been accused of an act of domestic violence, call Wurtzel Law today for a free consultation to learn more about our defense of domestic violence accusations.