FAQ in Domestic Violence Cases
This article by domestic violence defense attorneys in Tampa, FL, provides the answers to frequently asked questions.
After an arrest for domestic violence in Florida, contact an experienced criminal defense attorney at the Sammis Law Firm. We represent men and women accused of domestic violence in Hillsborough County and the surrounding Tampa Bay area. Our criminal defense attorneys provide an aggressive approach to fighting the charges at each stage of the case.
The best result in these cases is getting the charges dropped quickly and then expunging any record of the arrest or prosecution (if you are eligible). It is also important to be pro-active in protecting your family by seeking out counseling and making changes in the home to ensure no other incidents occur.
The best results occur when everyone in the family is satisfied with the outcome of the case, and the parties can move forward with a better way to resolve conflicts in the future. We use our experience to help our clients fight for the best result in their case.
Our main office is in downtown Tampa in Hillsborough County, FL. From our second office in New Port Richey, we represent clients charged with domestic violence crimes in Pasco County, FL.
Call us to discuss your case at (813) 250-0500.
Why are domestic violence cases treated differently than other types of criminal offenses?
Florida Statute 741.2901(2) provides that it is the intent of the Florida Legislature to treat domestic violence “as a criminal act rather than a private matter.”
The Florida legislature has expressed an intention that “criminal prosecution shall be the favored method of enforcing compliance with injunctions for protection against domestic violence as both length and severity of sentence for those found to have committed the crime of domestic violence can be greater, thus providing greater protection to victims and better accountability of perpetrators.”
What happens at first appearance in a Domestic Violence case?
Florida Statute 741.2901(3) sets special procedures for prosecutors handling domestic violence cases at first appearance. After an arrest for any act of domestic violence, the person accused of the crime is not immediately able to post bond. Instead, the court is required to hold the defendant in custody until brought before the court for admittance to bail in accordance with chapter 903.
The statute provides that “[p]rior to a defendant’s first appearance in any charge of domestic violence as defined in s. 741.28, the State Attorney’s Office shall perform a thorough investigation of the defendant’s history, including, but not limited to:
- prior arrests for domestic violence;
- prior arrests for nondomestic charges;
- prior injunctions for protection against domestic and repeat violence filed listing the defendant as respondent and noting the history of other victims; and
- prior walk-in domestic complaints filed against the defendant.
This information shall be presented at first appearance, when setting bond, and when passing sentence, for consideration by the court. The statute provides that in setting bond in domestic violence cases, “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.”
What are the different types of domestic violence-related crimes in Florida?
The following crimes, when the offense is committed on one family or household member by another family or household member, constitute a domestic violence crime including:
- Section 784.011, F.S., for assault;
- Section 784.021, F.S., for aggravated assault;
- Section 784.03(1)(b), F.S., for battery;
- Section 784.03(2), F.S., for felony battery;
- Section 784.041(1), F.S., for felony battery;
- Section 784.041(2), F.S., for felony battery by strangulation;
- Section 784.045, F.S., for aggravated battery;
- Section 794.011, F.S., for sexual assault or sexual battery;
- Section 787.02, F.S., for false imprisonment;
- Section 787.01, F.S., for kidnapping;
- Section 784.048, F.S., for stalking or aggravated stalking; or
- Any other criminal offense resulting in physical injury or death.
Frequently Asked Questions (FAQ):
· I have been falsely accused of domestic violence – what should I do now?
· What if a Restraining Order Was Filed Against Me After My Arrest?
· Should I represent myself against a domestic violence charge?
· I was falsely accused, why did the police make an arrest?
· What if the alleged victim does not want to prosecute?
· What if the alleged victim does want to prosecute?
· What are typical punishments for Domestic Battery?
· What is the Batterers’ Intervention Program?
1. Take Pictures of Your Injuries
If you have been injured during the incident in any way, take several pictures of the injuries as soon as possible. Even if the police took pictures at the time of the arrest, take your own pictures because the officer that arrested you was probably not motivated to preserve this exculpatory or favorable evidence.
Take lots of pictures, at different angles, and with different lighting. Bruises often get darker the next day, so continue to take pictures of the injuries over the next few days, even as your injuries begin to heal. Keep the photographs in a safe location until you can deliver them to your attorney.
2. Do Not Violate the “No Contact” Provision
Under Florida law, at your first appearance, the judge will impose a “no contact” provision that means that you can not have any contact with the alleged victim in the case.
It also means that you can not return to your home, even to collect your clothing and personal effects without a law enforcement officer to accompany you. Do not violate these rules because if you do, you could be arrested for violating the court’s order and send back to jail without bond.
Even if the alleged victim wants you to return to the home, do not have any contact with the alleged victim until the court has dropped or modified the “no contact” provision. If you wish to have contact with the alleged victim, contact a domestic violence attorney who can file a Motion to Modify the Bond Conditions to Remove the “No Contact” provision in those cases in which the alleged victim wishes to have contact with you.
3. Consider Modifying the “No Contact” Provision if the Alleged Victim is Attempting to Contact You
The motion to remove the “No Contact” provision can normally be filed on an emergency basis and heard within two business days of the day you retain the firm. Even if the alleged victim contacts you and wants to reconcile, only the judge can remove the “No Contact” provision.
Do not discuss your desire to have the “No Contact” provision lifted with the alleged victim because any contact – whether by phone, text, letter, or through a third party (except your attorney under certain conditions) violates the “No Contact” provision.
Having contact with the alleged victim can also result in additional charges for “tampering with a witness.” Instead, ask your attorney to file the motion to modify and take the appropriate steps to modify or eliminate the “no contact” provision.
4. Again, do not violate the “no contact” order.
Whatever you do, never violate any part of a court order for any reason, even if you are asked or encouraged to do so by the alleged victim.
In Florida, a domestic restraining order is first issued on a temporary basis without the subject of the order being present. A hearing is scheduled, and after the subject of the order receives notice, that person can defend against the continuance of the restraining order on a permanent basis.
If someone has filed a retraining order against you, it is essential to hire an experienced Tampa domestic violence attorney to represent you at the hearings because once the orders are permanent the order can prevent you from seeing your children or returning to your home.
Most importantly, it is very easy to violate an order or be falsely accused again. If that occurs, then a warrant could be issued for your arrest for a more serious offense such as Aggravated Stalking, or Violation of a Domestic Violence Restraining Order of Protection.
It may not be in your best interest to represent yourself and simply agree to plead “guilty” or “no contest” just to get it over with. If you enter a plea, the offense of domestic violence battery will be on your criminal record. Even if the court withholds adjudication, you may be sentenced to probation, counseling, and a continued “no contact” or “no violent contact” provision. You will not be eligible to have your record sealed even if you avoid a conviction and agree to probation after a “no contest” plea.
If another false accusation is made against you, you may be arrested for violation of probation, violation of a “no violent contact” condition of your probation, or another additional criminal offense such as aggravated stalking. You may forever have this “crime of violence” on your criminal record unless you take the appropriate steps to defend yourself against this serious allegation.
A domestic violence conviction carries with it serious consequences, such as a lifetime ban on your right to possess a firearm. Any arrest for any act of domestic violence is a serious criminal offense with serious criminal consequences that may last a lifetime.
When the police respond to a domestic violence call, they often arrive on the scene with an expectation that someone will be arrested. Even in a fight between a husband and wife, or girlfriend and boyfriend, the police are often inclined to make an arrest even if the alleged victim does not want to prosecute. The odds are overwhelming that the person arrested will be male. Over the past few years, however, the number of women arrested for domestic violence has increased.
The law enforcement officers involved in these cases have to make very difficult decisions in a very short amount of time. Many times, the police are confronted with conflicting versions of what occurred, and must make a judgment call about which party was the “primary aggressor.”
The police officers in these cases rarely have access to all of the information about the past difficulties between the parties, including prior acts of domestic violence. In most of these cases, there are no other witnesses to the incident other than the parties involved.
The police often confront situations in which one side is intoxicated by alcohol or impaired by a controlled substance. The police deal with situations in which a spouse is using the criminal justice system to gain an advantage in an anticipated child custody or divorce action in Florida. The police also deal with situations in which one person wants another person removed from the residence without realizing that the police will make an arrest based on the allegations.
Finally, the police sometimes tell the parties that one of them or maybe both of them are going to jail which causes the alleged victim to exaggerate the claims against the other party to avoid being arrested. Given all of these difficulties, the police sometimes make serious mistakes when deciding who to arrest when an allegation of domestic violence is made in Florida.
In many of these cases, the alleged victim does not want to prosecute at some point after the arrest. In fact, it is common for the alleged victim to actively seek to reconcile with the defendant after the arrest, even though the court has imposed a “no contact” provision. Regardless of the alleged victim’s wishes now, the arrest has already occurred.
The alleged victim has no absolute right to drop the charge. Instead, a prosecutor with the State Attorney’s Office will decide whether to prosecute the case. The State Attorney’s Office usually prefers to file the charges and let the courts decide whether you are guilty or not.
Of course, your attorney can make sure that the judge and the prosecutor are aware of the alleged victim’s wishes. If the person who originally made the complaint no longer considers himself or herself a victim, the prosecutor will consider that fact when deciding whether to drop the charges. This is especially true if the prosecutor can see that the defendant and the defense attorney are willing and able to go to trial to fight for the not guilty verdict.
Even in those cases in which the alleged victim does wish to prosecute, all too often false or exaggerated accusations are made out of spite, fear about a pending divorce or child custody battle, or to gain leverage in the relationship. In other cases, the false allegations were made because the alleged victim is under the influence of alcohol or impaired by a controlled substance.
Finally, the false allegations could be the result of the alleged victim being nervous or terrified of being arrested because the alleged victims own actions, so the description of the events is false or exaggerated.
Your Tampa criminal defense attorney needs to carefully investigate any evidence to show inconsistencies in the alleged victim’s version of events.
Additionally, in any self-defense case the past difficulties of the parties, especially any prior incidents where the alleged victim attacked the defendant may be admissible to show the reason why the defendant reacted the way he did on the date of the arrest. Your attorney will need to investigate past incidents of violence between you and the alleged victim to prove the alleged victim’s motive for making a false or exaggerated accusation.
Even a misdemeanor charge for domestic battery (touch or strike) is a first-degree misdemeanor punishable by up to 12 months in jail. Although for a first offense without any injury, the courts are most often inclined to impose a twelve (12) month probationary sentence with a special condition that the defendant complete the “Batterer’s Intervention Program.”
The batterer’ intervention program may be in addition to other conditions such as jail time, probation, restitution, court costs and a fine. Furthermore, under federal and state law it is illegal for the defendant to possess a firearm after a conviction for domestic battery or while subject to a domestic violence injunction.
The Batterers’ Intervention Program (BIP) is a twenty-six (26) to twenty-nine (29) week intensive program that addresses the causes of domestic violence and the ways to prevent it in the future. In order to successfully complete the Batterers’ Intervention Program, you must pay for an Intervention Assessment, and then undergo the Assessment.
After the assessment, you must then pay for an orientation, and complete the orientation. Next, you have to attend 26 weeks of classes and pay for weekly small group counseling sessions (which are usually 90 minutes each) and complete at home assignments in your spare time. If you miss any of the classes you can be kicked out of the program which will cause you to violate probation and be subject to a “no bond” arrest warrant.
Florida Coalition Against Domestic Violence – The FCADV provides leadership, advocacy, education, training, technical assistance, public policy and development, and support to domestic violence center programs.
Florida Domestic Violence Center – The FCADV’s directory of Florida Certified Domestic Violence centers in Florida that comply with the requirements of Florida Statute 39.905. All certified domestic violence centers in Florida provide a 24-hour hotline, emergency shelter, crisis counseling, court advocacy and legal advocacy.
The Spring – Domestic Violence Shelter in Hillsborough County – Hillsborough’s only certified domestic violence prevention and emergency shelter agency. Founded in1997, the Spring is certified by the Department of Children and Families (DCF) for Hillsborough County. The largest of Florida’s 42 certified domestic violence centers, the Spring was the first domestic violence agency in the United States to have an accredited on-site school for resident children. Over the years, the non-profit organization has provided sanctuary to more than 60,000 abused adults and their children.
This article was last updated by Jason D. Sammis on Friday, August 24, 2018.