Whether you or a loved one has been arrested or is under investigation for domestic violence allegations by law enforcement, it is critical to consult with an experienced Miami domestic violence lawyer as soon as possible. A conviction for domestic violence charges can severely impact your life, from your ability to secure housing to your employment, your ability to carry a firearm, and your reputation. If you are not a U.S. citizen, a domestic violence conviction can even lead to deportation or make you ineligible for citizenship and reentry. You need a domestic violence attorney with the experience to guide you through the process and maximize your chances of resolving your case with a favorable outcome. You need to ensure that your rights are protected. With so much at stake, you need an experienced criminal defense lawyer to defend against a domestic violence charge, not a family law lawyer.
What is Domestic Violence?
Although most people think of spousal abuse, many situations and relationships can qualify as domestic violence crimes (DV crimes) under Florida law. However, they all share a common element relating to physical abuse or bodily harm allegedly committed by the accused against a person they are closely related to or intimate with (or have been intimate with in the past). Emotional abuse and verbal abuse are not considered DV. At the same time, When the alleged domestic abuse is committed by an adult against a child, however, it is usually charged as child abuse.
Domestic Violence Charges Under Florida Law
Florida domestic violence law defines a domestic violence offense as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other 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 living together as if a family or who have lived together in the past as if a family and persons who are parents of a child together regardless of whether they have been married or lived together.
Domestic Violence Arrests
Under Florida Statute 741.29, a police officer may arrest and charge a person if there is probable cause that they committed domestic violence. Other times, one person will call 911 in the heat of an altercation but not want the police to arrest their loved one once they arrive. Florida law, however, states that the victim’s consent or the relationship between the parties will not be considered when deciding to arrest and charge. When both parties in a domestic violence case complain to the police, it is the officers’ responsibility to determine the primary aggressor. 741.29 states that “arrest is the preferred response only with respect to the primary aggressor and not the preferred response with respect to a person who acts in a reasonable manner to protect or defend oneself or another family or household member from domestic violence.”
Types of Domestic Violence Cases
The vast majority of domestic violence cases are domestic battery cases where a spouse, boyfriend, or girlfriend, is charged with committing physical violence against their significant other. Oftentimes, the contact can be minimal—there is no requirement that the alleged domestic abuse victim suffers bodily harm in any way. Any physical contact in a tense situation or conflict with a close family member—even if it involves very little force and no harm, like a push—can be charged as DV.
More serious DV cases with significant bodily harm can be charged as felonies, as well as second or subsequent misdemeanor DV cases. An experienced domestic violence defense attorney will help determine where your case falls within this spectrum.
An alleged victim can also seek a domestic violence injunction (also known as a restraining order). The alleged victim is not required to report a crime to law enforcement. However, it is not uncommon for a person facing domestic charges to be served with an injunction.
Pretrial Release and Stay-Away Orders
Unlike most misdemeanors, a person arrested for a domestic misdemeanor battery cannot be immediately released from jail. Florida law requires a defendant to be held in jail until he or she is brought before a judge for their first-appearance hearing At this hearing, the judge will determine bail and the conditions of the defendant’s release. The court must consider the safety of the alleged victim, the alleged victim’s children, and any other person who may be in danger if the defendant is released. A standard condition of release in all domestic cases is a stay-away order from the victim, also known as the “protected person.”
A stay-away order prohibits a defendant from having contact with the protected person and protected members of a victim’s family. This means in-person contact as well as any form of communication whatsoever. If the alleged victim sends you a text message, for example, and you reply, you could be arrested for violating the order. You would also violate the order if you came within 500 feet of the protected person’s house, job, school, etc. The order also makes it illegal for you to knowingly come within 100 feet of the protected person’s car.
WE HAVE SUCCESSFULLY DEFENDED HUNDREDS OF DV CASES
Sometimes, at the first-appearance hearing, the judge will consider modifying the stay-away order at the alleged victim’s request. If the judge finds that good cause has been shown and the interests of justice require that contact be permitted, the order will be changed to allow the defendant to have peaceful, non-violent contact with the protected person and/or children. If the stay-away order isn’t modified at the first-appearance hearing, the judge assigned to the case can still modify the order at a later hearing.