Eric J. Dirga, P.A.

A Florida Trial Attorney

Criminal Defense and Personal Injury Cases

733 West Colonial Drive, Orlando 32801 - 407.434.1858

Florida Domestic Violence Defense Representation

Domestic Violence; A Serious Offense

Eric J. Dirga, P.A., Orlando, FL - Call (407) 841-5555

Domestic Violence is broadly defined, politically funded, and over charged. It is estimated that 80% of all people charged with domestic violence in Central Florida ultimately have their cases dropped by the State Attorney's Office. However, if found guilty the law requires intense counseling and you will lose your right to own and possess firearms. The financial harm caused by having this charge on your record is enormous. Anytime anyone is charged with domestic violence all effort should be taken to get it dismissed and removed from your criminal record.

What Is Domestic Violence?

In order to understand your situation you have to understand what you have been charged with. The domestic violence law is actually a series of statutes that enhance crimes committed between people classified into relationships.

Chapter 741 - MARRIAGE: DOMESTIC VIOLENCE

The first section in the law that addresses domestic violence are the definitions. There are only a few but a quick reading will expose how broad the crime is.

741.28 Domestic violence; definitions.—As used in sections 741.28 through 741.31, Florida Statutes:

  • (1) “Department” means the Florida Department of Law Enforcement.
  • (2) “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.
  • (3) “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.
  • (4) “Law enforcement officer” means any person who is elected, appointed, or employed by any municipality or the state or any political subdivision thereof who meets the minimum qualifications established in section 943.13 and is certified as a law enforcement officer under section 943.1395, Florida Statutes.

The "violence" component in domestic violence can be any crime. Typically it is battery. Using the definitions of domestic violence, above, even a sibling squabble can be considered a crime.

The Domestic Violence label [DV] is an enhancement to another criminal act. The penalty for DV is based on the act of violence condoned by statute and accused by the victim. For example, a simple battery, the unlawful touching of another, is a 1st degree misdemeanor. In Florida, that level offense is punishable by up to 1-year in jail and a $1,000.00 fine. If, by definition, it is also an act of domestic violence then the enhancements of the penalty apply.

741.281 Court to order batterers’ intervention program attendance.

If a person is found guilty of, has adjudication withheld on, or pleads nolo contendere to a crime of domestic violence, as defined in section 741.28, that person shall be ordered by the court to a minimum term of 1 year’s probation and the court shall order that the defendant attend a batterers’ intervention program as a condition of probation. The court must impose the condition of the batterers’ intervention program for a defendant under this section, but the court, 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 court must impose the condition of the batterers’ intervention program for a defendant placed on probation unless the court determines that the person does not qualify for the batterers’ intervention program pursuant to section 741.325. The imposition of probation under this section does not preclude the court from imposing any sentence of imprisonment authorized by section 775.082.

741.283 Minimum term of imprisonment for domestic violence.

If a person is adjudicated guilty of a crime of domestic violence, as defined in section 741.28, and the person has intentionally caused bodily harm to another person, the court shall order the person to serve a minimum of 5 days in the county jail as part of the sentence imposed, unless the court sentences the person to a nonsuspended period of incarceration in a state correctional facility. This section does not preclude the court from sentencing the person to probation, community control, or an additional period of incarceration.

To read more parts of the statute go to the page Domestic Violence Law.

The Collateral Consequences of Domestic Violence

An arrest for Domestic Violence can have long lasting repercussions on your life. There are several specific differences that initially occur when arrested:

  • You will be held without a bond until you see a judge.
  • Unless the victim appears and sufficiently alays the fear of future violence the court will order that you have no contact with the victim and that you cannot return to the residence where she lives. This can be your home.
  • All firearms owned or held by you must be turned over to the police or adequately kept out of your possession. If you have a concealed carry permit it will be immediately suspended.

Consequences If Found Guilty of Domestic Violence

If you are found guilty of a Domestic Violence offense your arrest record will be permanently marred - it cannot be expunged or sealed. Additionally, the stigma associated with it will always remain. This has a devastating impact on current and future employment. The right to own or possess firearms will be restricted. See, 18 USC 922(g)(9).

For more information regarding the impact on your Second Amendment right to bear arms in relation to a domestic violence arrest see Florida Firearms - Law, Use and Ownership by Jon H. Gutmacher, Esq.

Immigration Issues And Domestic Violence

If you are not a United States citizen and you are found guilty of domestic violence there is a very good chance you will face deportation. Domestic violence is a deportable offense. There is an argument that misdemeanor offenses would not cause deportation based the Florida definition of battery but that is a risk that should be avoided at all costs. This includes permanent residents.

Defenses and Case Law

There are too kinds of domestic violence cases - the first and most common is the type when no one wanted to prosecute the other. The other more rare type is when one person wants to prosecute.

No One Wants To Prosecute

These cases require quick action. It is essential that, if no one wanted to have the state prosecute their spouse or boy/girlfriend, the accused hire a criminal defense lawyer as soon as possible. This sounds self-serving but the consequences of being found guilty of domestic violence can be devastating.

The statute requires that the Offices of the State Attorney take a pro-prosecution stance for all domestic violence cases. This coincides with the requirement that law enforcement take a pro-arrest stance for all calls that involve domestic violence. Many times the caller just wanted the other person out of the house or didn't know what else to do. When the police arrive the caller may feel pressured to write a statement or writes it in the heat of the moment. Afterwards, the caller may decide the situation has spun out-of-control. In an effort to correct the situation the caller will try and contact either law enforcement or the prosecutors office - both of these decisions are bad.

It is essential to convey to the State Attorneys's Office the desire not to prosecute. However, direct contact can result in statements being made that reinforce the prosecutor's desire to file charges. Whenever a listed victim of domestic violence calls the prosecutor the conversation is either recorded or the victim advocate annotates the conversation into the case file. These statements may be used by the prosecutor in court to prosecute the defendant.

This is the proper time to consult with a criminal defense lawyer. A lawyer will act as the defendant's advocate. Additionally, if the lawyer discovers evidence that the victim exxagerated, felt pressured, was told what to write in her statement, or simply does not want to be a witness against the defendant, the lawyer can make those facts known to the prosecutor without damage to the defense.

The Truth About Domestic Violence

The Victim Wants To Prosecute

If the victim wants to prosecute you need to hire competent legal counsel. You have more time than if there was a desire not to prosecute this case by the victim, however your situation demands action. In these situations the victim may also have an emotional desire to cause you as much harm as possible. A lawyer can advise you on methods to protect yourself. Additionally, your defense should begin while the events are fresh in your mind. Delay in hiring an attorney only helps the prosecution.

There may be a desire on your part to try and communicate with the victim. Do not attempt this. Typically, the court will order you to have no contact with the victim and a violation of this court order will place you back in custody. Moreover, this behavior may feed into the victim's desire to cause you as much harm as possible.

Domestic Violence FAQs

Charged with domestic violence? Call Us Now at 407-841-5555 or email us directly at ejdirga@ejdirga.com.

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