Domestic Violence is defined as "assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, or any criminal offense resulting in physical injury (or death) of one family or household member by another who is or was residing in the same single dwelling unit"; which, with the exception of robbery, includes all violent crimes.
Domestic Relationship is defined in Section 741.82(2), Florida Statutes, to include spouses, former spouses, relatives, persons who reside together as if a family, persons who formerly resided together as if a family, or persons who have a child in common.
Battery is defined in Section 784.03, Florida Statutes, as the intentional touching or striking of a person against their will, regardless of whether an injury occurred. If serious injury does occur or if a weapon was used, it can be an aggravated battery.
Assault does not necessarily involve any physical contact. An assault includes the intentional threat to cause physical violence, even if no physical contact actually occurs. The threat must be by word or act and the person making the threat must have done something to make the alleged victim believe that this violence is about to happen. If the person uses a deadly weapon when committing this act, it is an aggravated assault.
Hiring An Experienced Attorney
After an arrest for domestic violence, it is important to hire an experienced attorney as early in the process as possible. At Escobar, Ramirez & Associates the goal of every representation is to have the criminal charges completely dropped or dismissed. If you are eligible, the firm can help you seal or expunge any record of the arrest or prosecution thereby protecting you from the devastating effects of a record for "domestic violence". We can also represent you if the alleged victim petitions for an injunction for protection.
The Arrest
Many people are shocked to learn that a simple fight, misunderstanding, or false allegation between family members can result in an arrest for domestic violence. Most of the time, when the police are called out to resolve a domestic dispute, someone is going to jail if there is any allegation of physical contact. Usually, in a fight between a man and a woman, it is the man who is arrested. Most law enforcement agencies have a "no tolerance" policy which requires an arrest in any domestic dispute involving an accusation of physical contact or threat of violence. Many times the alleged victim has a motive to fabricate the accusation, including the desire for possession of the home, or to gain an advantage in a pending divorce or custody battle.
The "No Contact" Provision
The person arrested for domestic violence is held without bond until a first appearance before the Judge the next morning after the arrest. The Judge will typically set a bond and a "no contact" provision, which prevents the person arrested from having any contact, direct or indirect, with the alleged victim. After being released from jail on bond, the nightmare for the accused person typically continues because of the "no contact" provision. Sometimes the accused person and the alleged victim have many important obligations that require that they communicate, including a home, bills, children, and other important obligations. The accused person may have nowhere else to live while the case is pending. Even returning to the home to retrieve a tooth brush and clothing requires that the sheriff's office accompany the accused person back to the house to avoid violating the "no contact" provision. If the accused violates the "no contact" provision, the bond can be revoked, or the accused could be charged with aggravated stalking. An attorney from Escobar, Ramirez & Associates can petition the Court to remove the "no contact" provision quickly so that the accused person and the alleged victim can continue to communicate during the duration of the case. Often, removing the "no contact" provision allows the parties to begin the reconciliation process. On the other hand, even if the parties decide to end the relationship or get divorced, contact may still be necessary to allow for child visitation and financial arrangements during the separation.
Avoiding a Conviction
Even more problematic, a conviction for domestic violence can have devastating effects on the accused person's life. A conviction for domestic violence can take away the accused person's civil right to own and carry a firearm forever. Employers who require a background check and discover an arrest or conviction for domestic violence may be extremely reluctant to offer a job to a person with a record for domestic violence. Often the prosecutor will pursue the charges even though the alleged victim does not want to prosecute. Many prosecutors adopt a "no tolerance" position on domestic violence cases. Depending on the evidence, it is possible for the prosecutor to prosecute the case even if the alleged victim refuses to come to court. Having an experienced attorney can make the difference in avoiding a conviction. The criminal defense team from Escobar, Ramirez & Associates can help you achieve the best possible resolution of your case, which is usually having the charges completely dropped or dismissed.
Early Intervention by an Attorney May Prevent Charges from Being Formally Filed
It is often crucial to have an attorney even before formal charges are filed. After the arrest, all of the police reports are turned over to the State Attorney's Office where an Intake Prosecutor will review all of the records and make a filing decision. The filing decision means that the prosecutor will decide whether to file charges against the accused, and if so, what types of charges to file. Without the intervention of a criminal defense attorney, the intake prosecutor will typically read the police reports and then formally file the same charges that are listed on the police report. However, an experienced criminal defense attorney can intervene on your behalf to make sure that the prosecutor knows your side of the story, including any defenses that you might have, knows whether the alleged victim even wants to continue the prosecution, and knows any specific facts which would complicate a prosecution. Factors that can complicate the prosecution include the following:
- A delay in calling the police.
- Lack of any injury.
- Whether the accuser has a motive or bias to fabricate the accusation, including a pending divorce or child custody battle.
- Whether any independent unbiased witnesses saw the alleged act.
- Whether any independent evidence supports the accusation.
- Whether any medical treatment was sought be the alleged victim.
- Whether the accused has any prior record for similar offenses.
- Whether the alleged victim wants to prosecute.
- The content of any 911 call.
- Whether the accused was acting in defense of himself, others or property when the physical contact occurred.
- Whether any children witnessed the physical contact.
If you have been arrested for domestic violence, please call one of our attorneys to schedule a free initial consultation to preserve all of your rights. Our attorneys are available 24 hours a day, 7 days a week. Call today.
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