Domestic Violence Battery
One issue that comes up time and time again in domestic violence prosecutions is that a prosecutor prosecutor proceeds forward with a case despite lack of cooperation from the alleged victim. While this is legally permissible, I can tell you that the case becomes so weak from a prosecution standpoint that obtaining a conviction becomes next to impossible. I have defended hundreds of cases involving a recanting victim in court, all of which were ultimately dismissed. Don’t be bullied into taking a plea before speaking with me.
Domestic Violence, also referred to as Domestic Battery, gained significant attention after the widely publicized OJ Simpson trial in 2007-2008. Since that time, many police departments have instituted zero tolerance procedures mandating that their officers make an arrest in response to every call involving a couple fighting. Statically, there is a disparaging amount of men arrested as opposed to females, sometimes as high as 95%.
Domestic Violence Battery Under Florida Law
In order to bring a case before the court, the assistant state attorney must have at least taken a victim or witness statement that tends to establish that:
- Defendant Intentionally touched or struck another person against their will; or
- Defendant Intentionally caused an object to touch or strike another person against their will; or
- Intentionally caused bodily harm to another person.
The elements of domestic battery are the same as is the case were filed as a regular simple battery offense. The “domestic violence” classification comes from the relationship of the parties. Specifically, the victim must be a family or household member under Fla. Stat. 741.28 . See Definitions section below.What the Prosecutor Does Not Have to Prove in a Domestic Violence Case
No injury need be proven by the state. As with all battery charges in Florida, the prosecuting attorney does not need to show that the victim was injured in any way. Instead, all that needs to be proven is that the defendant touched, or caused something to touch the victim in a way that was not welcomed.No Actual Striking Needed
The prosecutor does not need to prove that the defendant actually struck the defendant with an object likely to cause harm. The causing of an unwelcome material will suffice. For example, a person who spits on another can be arrested and charged with battery.Penalties If Convicted of Domestic Violence Battery
In Florida, the crime of Domestic Violence Battery is a First Degree Misdemeanor and punishable by up to one (1) year in jail, one (1) year of probation, and a $1,000 fine.
Additionally, Domestic Violence Battery convictions require that the judge issue mandatory sentences. There is no discretion in this regard and failure for a judge to comply with sentencing in accordance would be considered a violation of Florida law.
These minimum sentences include:
- Minimum Mandatory Five (5) days in jail if injury caused;
- Mandatory completion of 29 Week Batterers Intervention Program;
- Ineligible to ever have criminal record sealed or expunged;
- Forfeiture of right to have a gun while on probation, even for a misdemeanor; and
- Revocation of any concealed weapons permit.
Record Sealing: Not eligible
Record Sealing is NOT available for defendants who were either convicted or adjudicated for a domestic violence offense. This is true regardless of whether or not the disposition was for an adjudication or withhold of adjudication.
Record Expunge: Eligible
Contrary to popular belief, the FDLE will issue a certificate of eligibility to have a criminal record expunged for domestic violence battery where the case has been dismissed. This includes:
- Declined Cases
- No Information Cases
- Voluntary Dismissals (where the victim did not appear for court)
- Judicial Dismissals
- The defendant was not the aggressor.
- The defendant acted in self defense.
- The victim does not wish to participate in helping the state convict the defendant.
Most people believe that the victim in a domestic violence case may sign a waiver of prosecution to get the charges dropped against the defendant. Unfortunately, it is not that easy in Florida. The state attorneys office will proceed with charges even where a victim does not wish to prosecute. Prosecutors will use leverage by threatening to have a victim charged with filing a false police report or perjury in some cases. Nonetheless, if handled correctly, a victim that does not wish to prosecute is a very powerful defense to such a charge and is, without question, the most common way to navigate resolving the charges favorably from a defense standpoint.Domestic Violence Battery Charges Can Be Upgraded to a Felony
The following aggravating factors may result in a domestic violence battery being charged as a felony:
- The victim was seriously injured
- The victim was pregnant
- A weapon was used
- Strangling or choking is alleged
- The defendant has previously been convicted of domestic violence
- Things Unique To Domestic Violence Battery Charges
Simple Domestic Battery is a Misdemeanor in Florida. However the way that this offense is handled by the Florida Court System is different non-domestic Simple Battery offenses. First off, Domestic Violence cases are presided over by a special judge in the jurisdiction where the crime is alleged to have occurred. This “county court judge” handles only these types of cases and nothing else. This means that while other county court judges are handling everything from misdemeanor DUI offenses to petit-theft cases, as well as standard battery cases, the domestic violence court judge is handling only battery cases where a qualified relationship exists between the parties.Mandatory Sentences Must Be Imposed to Anyone Convicted for Domestic Violence Battery
The crime of Domestic Violence Battery is considered to be a “politically charged” crime.
Politically charged offenses are born out of public outcry, usually following a highly publicize the event or series of events, that gets the publics attention. This event or a series of events tends to weigh heavily on the emotions of the community as a whole. The result is that it becomes almost fashionable to support increased legislation aimed at getting tougher on crime with respect to that specific offense. In other words, it becomes easier for politicians to have laws passed that increase the severity of punishment or special conditions that must accompany sentences for those convicted of the crime in question. Entrepreneurs seeing an opportunity to capitalize on this easily and acted legislation, develop counseling centers while simultaneously lobbying for mandatory treatment and counseling for convicted individuals.Alternatives to an Incarceration Sentence for Domestic Violence Battery
Cases involving a repeat offender or allegations that are considered egregious may result in a judges considering an incarceration sentence for a defendant convicted of domestic violence battery. Proper treatment and counseling for anger management issues may be an appropriate way, if argued correctly, to avoid incarceration of a convicted defendant. Each courtroom and jurisdiction is different with regard to what psychologists and or treatment facilities are considered reputable.Definitions Under Fla. Stat. 741.28
The two definitions in this section that you will most likely be concerned with will be the terms “Domestic Violence” and “Family or Household Member”
“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”
Mandated Programs, Treatment & Counseling Facilities
Florida Batterers’ Intervention Programs – List of qualifying batters intervention programs as required by Florida statutes section 741.30(6)(a).
Florida Safety Counsel Anger Management Classes – Schedule of one day, eight hour course for anger management in Florida. The fee for classes is generally around $75.00.Related Crimes to Domestic Violence Battery
The crime of Domestic Violence Battery under Florida Statutes Chapter 741 stems from the offense of battery as listed in Florida Statutes 784.
Crimes related to Domestic Violence Battery include:
- Aggravated Domestic Battery (Felony)
- Battery on a Pregnant Female
- Domestic Battery by Strangulation
- Aggravated Assault
- Aggravated Battery