Eric J. Dirga, P.A., Criminal Traffic Defense, Telephone 407-841-5555

Florida Domestic Violence Questions and Answers

People accused of domestic violence often have many questions. We have tried to answer some of those domestic violence questions here. Remember this one thing - if you are accused of domestic violence, do not talk to the police or the prosecutor's office. Everything you say to them will be used against you in the worst possible light. Remain silent.

Q1. I've been charged with domestic violence. What does that mean?

A1. "Domestic Violence" is not an offense by itself, - consider it a classification or modifier. It can be used to modify several different criminal acts or charges but typically affects battery, assault, stalking and any aggravated version of those offenses. When a charge is classified as "domestic violence" it invokes several additional statutes that deal with minimum penalties and how the case is to be handled by law enforcement and the state attorney's office. Awareness of the effects of labeling an offense as domestic violence is essential for a lawyers treatment of the case.

All the offenses that can occur as domestic violence (battery, assault, aggravated battery, aggravated assault, stalking, aggravated stalking, kidnapping, false imprisonment, etc.) are offenses unto themselves. The "domestic violence" tag triggers several additional statutory requirements. Go to my Domestic Violence Law page for more info.

What are we talking about when we say "Domestic Violence?"

Domestic violence is a cyclical behavior. It is repetitive with an ever increasing amount of violence. The beaten and abused victim usually returns to the violent partner over and over again. Without help, without intervention, this repeat victim is in serious danger. However, domestic violence is not a single incident of:

1. A loud argument between couples, parents, children.

2. A pushing match between couples over the car keys.

3. Self-defense from an angry spouse.

4. Splashing a drink on a spouse, boyfriend or girlfriend.

5. Screaming and pointing fingers at each other.

6. Arguing about the pets, money, food, or work.

7. Or any other emotional form of communication that couples may use when they are upset with each other.

Think about it. What couple has never had an argument? Are we all guilty of domestic violence? Sometimes couples can commit crimes upon each other without it being actual "domestic violence." A couple that gets in a onetime fight may have committed battery or an assault - but it is not a repetitive behavior and should not be classified as domestic violence. Moreover, the government should not be stepping in to our lives whenever our emotions get the better of ourselves - we are human beings, not robots.

The problem is that "any" violence between couples today is charged automatically as domestic violence by the automatons that run each Office of the State Attorney. Why is this such a big deal? The penalties for being found guilty of domestic violence are devastating!

Q2. I've been charged with domestic violence but I have never even lived with this person?

A2. In order for a case to be classified as "domestic violence" you need not have lived with the person. The fact is that the statutory definition of domestic violence requires the offense to have been committed by one family or household member to another. However, a family or household member, as defined by statute, is a spouse, former spouse, person related by blood or marriage, persons presently residing together as if a family or have resided in the past as if a family, and persons who have a child in common regardless of whether they are married or have resided together in the past. Note that people related by marriage, i.e., brothers-in-law, can be charged with domestic violence offenses.

DEFINITIONS (Section 741.28, Fla. Stat. 2002) effective January 1, 2003

"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.

"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.

Thus, by these definitions, the legislature has made a single argument or fight between spouses, boyfriend/girlfriends, siblings, and a parent and child a criminal act. As a prosecutor I was initially taught that domestic violence involved repetitive or cyclical behavior on the part of the abuser. An increasingly intense cycle of continued and repeated violence toward a spouse or intimate partner. Today, the "cycle of violence" is not a necessary fact in evidence. Now domestic violence is being prosecuted as any act of perceived violence towards a "family or household member." This forces prosecutors to wedge themselves between family or household members who may not have even called the police to report an argument (neighbors are good at reporting arguments as abuse when they hear yelling). The consequences of a single argument is now blown out of proportion as the State of Florida pursues a prosecution and tries to get one side to testify against the other.

Q3. If I just plea to the domestic violence charge what will I have to do?

A3. Each domestic violence categorized offense has its own maximum and minimum penalties. On top of those, a person that enters a plea to a domestic violence classified offense must complete a 26 week Batterers Intervention Program (and must pay for it), and if bodily harm was found to have been inflicted on the victim the law requires a minimum sentence of 5 days in jail. Collateral consequences are that your Right to own and possess firearms will be lost. Any firearms in your possession will have to be dispossessed immediately. Possession of a firearm after a finding of guilt can be a federal felony offense.

Penalties for Domestic Violence

Domestic violence cases are set at "no bond" until the accused person is brought before a judge at first appearance (also known as initial appearance). This means that the accused will remain in jail until then. Bonds on domestic violence cases have their own schedule (are higher). By law the first appearance must take place within 48 hours of arrest, however, we have seen individuals wait upwards of 60 hours during weekend arrests.
If found guilty of a domestic violence offense the accused will have to successfully complete a 26-29 week Batterers Intervention Program developed to counsel people who repeatedly batter their spouse.

PROBLEM: All it takes to be charged with domestic violence is one event.

They will also be ordered to not possess any firearms for the duration of the court's jurisdiction. If they have a concealed weapons permit it will be revoked. If found guilty, the defendant's right to bear arms will be taken away. Community Service will most likely be ordered. All these conditions will be in addition to any incarceration that the judge may order and the record of these often mistaken arrests will remain public for the rest of the alleged offender's life.

MINIMUM TERM OF IMPRISONMENT for Domestic Violence

Section 741.283 (2010), Florida Statutes requires that a defendant be sentenced to a minimum 5 days in jail upon a conviction for domestic violence where "bodily harm" has been shown to have occurred. The amorphous term "bodily harm" leads many judges to incarcerate a defendant after a jury verdict of guilty equating that the "violence" alleged at trial must have caused "bodily harm" despite the fact that there is no definition for such term nor any requirement that the jury determine if the violence caused such undefined harm.

Q4. If I plea to a domestic violence charge can I get my record sealed or expunged afterward?

A4. No. This is often never told to people before they plea to this offense. Florida law specifically prohibits domestic violence charges from being sealed after a finding of guilt even if adjudication of guilt is withheld. If the case is dropped then it can be expunged. Being found guilty of domestic violence effectively ends a nurse's or teacher's career, among others.

Q5. I pled to a domestic violence charge and my concealed weapons permit was revoked. Can they do that?

A5. If you have been found guilty of a "domestic violence" classified offense you will be prohibited from obtaining a concealed weapons permit and any permit currently possessed will be revoked. Furthermore, your Right to possess firearms will be "disabled." That is the term used by the government - it means you will no longer be able to buy, own, or possess a firearm. In Florida, if you are arrested for a "domestic violence" offense and you end up entering a plea of guilty or no contest to an offense related to the arrest, even if it is not classified as domestic violence, your privilege to bear arms will be "disabled."

For this reason, a bogus charge of domestic violence must be addressed immediately - before the Office of the State Attorney files on the case. This is usually 3 weeks from the date of the arrest.

Q6. My wife/girlfriend told the police that she did not want to press charges but I was arrested anyway. Now she told the State Attorney's Office that she wants the case dropped - but they won't drop it. Can they do that? How can they continue under those circumstances?

A6. Yes, they can do what they are doing and they can attempt to prosecute you despite your wife's position regarding the case. Many successful prosecutions of domestic violence cases have been done without having the victim testify. The State may have other evidence that they feel will be enough to convict you such as excited utterances, photos of injuries, admissible statements, etc. Believe it or not, people have been found guilty of these offenses even when the alleged victim has taken the stand and denied it ever happened. The Fourth District Court of Appeal stated back in 1999 that the "decision to prosecute does not lie with the [alleged] victim of the crime." State v. Wheeler, 745 So.2d 1094 (Fla. 4th DCA 1999).

Rights of the "Victim" are cast aside.

When the State Attorney's Office files charges against a person accusing them of domestic violence they must list a victim to prove their case. The legislature has given alleged "victims" of crime many statutory rights found in Chapter 960 of the Florida Statutes. Among these rights, which we will get to in a moment, is the legal definition of a victim = "any person who suffers personal physical injury or death as a direct result of a crime." Crimes are defined by the criminal statutes but whether a person has suffered a personal physical injury is (or should be) defined by the alleged victim!

For example, a couple that routinely expresses themselves by abrupt physical contact (like the way Elaine on the TV show Seinfeld routinely shoved other characters and said "get out!") are not committing crimes against each other even though such an act has all the elements of a battery.

When the State files a charge of domestic violence the victim has specific statutory rights. Among these are the statutory right to be present at all proceedings and hearings relating to (1) the arrest of the accused, (2) the release or modification of release conditions of the accused pending judicial proceedings, (3) and the prosecution of the accused.

Additionally the victim has a right to express views about the (1) release of the accused pending judicial proceedings, (2) any plea agreement, (3) participation in pretrial diversion programs, and (4) sentencing of the accused.

So what happens when the "victim" expresses the view that she does not want to testify or prosecute the case against the accused? Often the victim's expression is ignored - even when the alleged victim's expression indicates that she is not a victim of a crime.

Q7. I was arrested for domestic violence. Now my spouse has the house and I am not allowed to have any contact with her. How am I suppose to live?

A7. As a rule, Judges will order that the accused in a domestic violence case have zero contact with the victim. This is usually ordered at first appearance. Until you request the Judge to modify that order you cannot have any contact with your spouse. This means she gets to keep living in the home and you have to find another place to stay. Sometimes a Judge will modify the "no contact" order to "no hostile contact." This will allow each of you to resume your living arrangements as they were before the arrest.

Q8. The police came to my house because somebody called and said they heard arguing. Then the police acted as if they had to make an arrest and finally charged me with domestic violence (assault). Can they do that?

A8. Obviously they can do that, but the real question is why would law enforcement seem to be required "to make an arrest?" The answer is, unfortunately, money. The 1994 Act that funneled federal money to the individual law enforcement agencies to support protection for women (Safe Streets Act) requires an annual report that indicates positive results.

`(3) SUSPENSION OF FUNDING- The Attorney General shall suspend funding for an approved application if--
`(A) an applicant fails to submit an annual performance report;
`(B) funds are expended for purposes other than those described in this part; or
`(C) a report under paragraph (1) or accompanying assessments demonstrate to the Attorney General that the program is ineffective or financially unsound.

(I use to have a link to the Safe Streets Act that I refer to but for some reason the United States Justice Department removed it in 2009)

Arrests make statistics, statistics can be used to demonstrate that the program is "effective or financial sound." No government entity easily gives up funding. If a program is funded based on results then results shall be made - at the cost of individual rights and freedoms. It's a form of government corruption that falls on the neck of civil rights.

In Florida, law enforcement finds itself forced to make an arrest.

The way the statute is written most law enforcement agencies require that an arrest be made when their are allegations of domestic violence (regardless if it is the assertions of neighbors, passer-bys, or complete strangers). The statute gives civil immunity to law enforcement for any arrests that are made. Law enforcement agencies interpret this as giving them immunity only if an arrest is made. Therefore, the poorly written statute has led to the arrests of thousands of people that are not "domestic violence batterers" (cyclical violence) who then have to face prosecutors brainwashed into the belief that the only source of help is to convict them of a bogus charge.

Q9. My partner and I got into an argument. We both became verbally abusive. She called the police and I was arrested. Now I read the police report and she has lied throughout it claiming physical violence. Can she do this?

A9. The statutes on domestic violence offenses and domestic violence injunctions are painted with a very wide brush. This means that a little knowledge can be very dangerous. A person who falsely claims abuse - files a report or an injunction, sheds a tear before the court - is very likely to get what she wants. There is currently no corresponding enhanced punishment for people who file false claims of domestic violence against their husband, wife, boyfriend, girlfriend, or sexual partner and the typical policy at Offices of the State Attorney is to not pursue charges of False Report of a Crime against false victims of domestic violence.

Q10. I was arrested and accused of domestic violence. When I saw a judge the next day I pled guilty to get out of jail. Now I realize that was a mistake. What can I do?

A10. Many times people charged with a domestic violence offense will plead guilty or no contest immediately upon seeing a judge. This is usually within 48 hours of their arrest and when they are still in jail. Many times these people are unrepresented by an attorney, do not understand the criminal justice system, and enter their plea just to get out of jail. The Florida Rules of Criminal Procedure allow people to withdraw their pleas within 30 days for good cause. It is sometimes possible to withdraw a plea after the 30 days has run. If you realize that you have made a mistake by entering a plea then call as soon as possible. See if we can turn things around.

Q11. We were both equally physical with each other. I called the police but when they arrived they took her side of the story and arrested me. Why?

A11. Section 741.29(4)(a) requires that "[w]hen complaints are received from two or more parties, the officers shall evaluate each complaint separately to determine whether there is probable cause for arrest." Unfortunately, law enforcement's agenda does not correspond to the heart of this section - that is to objectively determine all facts given to the situation described by the witnesses. Instead, law enforcement officers believe that section 741.29(5) is their guideline for these type cases. It states: "No law enforcement officer shall be held liable, in any civil action, for an arrest based on probable cause . . . arising from an alleged incident of domestic violence brought by any party to the incident." (Emphasis added) The problem is that a judge determines probable cause based on what the officer writes as having occurred in his charging affidavit (police report). The failings of this is that the officer (most of the time) only has knowledge of hearsay statements and has a liability incentive to not only make an arrest but to also describe the events as to establish probable cause for that arrest. There is no incentive for the truth to be told.

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