Definition of Domestic Battery
Under Florida law, Domestic Violence Battery is defined as any actual and intentional touching or striking of another person without consent, or the intentional causing of bodily harm to another person, when the person struck is a “family or household member.”
‘Family’ or ‘Household Members’
Under Section 741.28, Florida Statutes, the term ‘family or household member’ can include the following:
- Wives and husbands;
- Ex-wives and ex-husbands;
- Individuals related by blood or marriage;
- Individuals living together as a family;
- Individuals who have resided together as if a family in the past; and
- Persons who have a child in common (regardless of prior marriage).
The statute specifically requires that the family or household members must be currently residing or have in the past resided together in the same single dwelling unit. The only exception is for persons who have a child in common.
Penalties for Domestic Battery
Domestic Battery is classified as a first degree misdemeanor, with penalties that may include up to one year in jail or twelve months probation, and a $1,000 fine.
Due to the ‘domestic’ nature of the crime, the accused will face additional mandatory penalties under Chapter 741, Florida Statutes, including:
- Completion of a 26 week Batterer’s Intervention Program (BIP);
- 12 months of probation;
- 5 days required jail (if the defendant is adjudicated guilty and there is bodily injury); See Section 741.283, Florida Statutes;
- Additional community service hours;
- Loss of important civil liberties, including concealed carry rights;
- Imposition of an injunction or ‘no contact’ order. For additional information on this topic view our web pages on injunction violations and no contact orders.
Sealing or Expunging Domestic Charges
Under Florida law, a person who commits an act of domestic violence battery or any other domestic-related crime of violence, as defined in Section 741.28, Florida Statutes, is ineligible to have his or her record sealed or expunged, regardless of whether adjudication is withheld.
In other words, if you plead to any domestic violence charge, you will have lifetime criminal record for that offense. There are no exceptions to this rule.
Defenses to Domestic Battery
In Florida, domestic violence battery is one of the most defendable charges in all of criminal law, and a decision to plead should not be made without a lawyer thoroughly reviewing your case and considering all of your legal options. Some of the most common defenses include:
- Factual disputes about the underlying incident;
- Absence of injuries;
- Battery allegations not corroborated by other evidence;
- Vindictive victim;
- Defense of others;
- Defense of Property;
- Stand Your Ground;
- Consensual confrontation or mutual combat;
Criminal Defense Strategies
There are innumerable strategies for addressing a domestic battery charge, many of which can assist in having a case dropped or reduced prior to trial. Some of the more common defense strategies include the following:
The importance of hiring an attorney in a Domestic Violence Battery case cannot be overstated. The possibility that a charge will dropped, amended, or diverted increases substantially with an attorney on the case.
The hiring of private counsel signals to the prosecutor that the defendant has the intent and resolve to fight the case, and will not accept boilerplate offers routinely presented to the Office of the Public Defender.
Moreover, a private attorney puts at the defendant’s disposal the knowledge and experience needed to effectively contest the charge. This improves outcomes and can weaken the resolve of the prosecution to pursue the matter in the first place.
One of the key advantages of hiring a private attorney is the ability to make early contact with the prosecution. The early presentation of factual defenses, legal issues, and mitigating circumstances can have a dramatic impact on the State’s decision to move forward with a domestic battery charge. It communicates competence and resolve, and establishes a rapport that may be needed in any future negotiations.
Contacting the Victim
Domestic Battery charges are most effectively addressed at the earliest stages of the case, before formal charges are filed. Even when a ‘no contact’ order has been imposed, an attorney can contact the alleged victim to see if he or she wishes to pursue the charge. The attorney can further present information on the steps that can be taken to request that charges be dropped.
The State Attorney’s Office will generally require that the victim complete a drop-charge affidavit, complete a course, or meet with a Domestic Violence advocate in order to decline prosecution. The victim may also attempt direct contact with the prosecutor.
In all cases, however, the decision to prosecute rests exclusively with the Office of the State Attorney. A victim’s input is often persuasive, but is in no way determinative.
Addressing the ‘No Contact’ Order
In domestic battery cases where the alleged victim does not wish to pursue charges, the parties should seek to immediately modify any No Contact Orders that have been imposed by the court. This is accomplished through the filing of Motion to Modify Conditions of Release.
The modifying or lifting of a ‘no contact’ order not only enables the parties to resume contact and further coordinate their efforts to have the charges dropped, it sends an additional signal that the alleged victim is not cooperative and is against any further prosecution.
Seeking Help Voluntarily
In many cases, it is appropriate for a defendant and/or victim to be proactive and voluntarily enroll in counseling or other psychological or substance abuse services. Voluntary participation in such programs can show a level of responsibility by the parties, change prosecutor perceptions of a case and of the defendant, and increase the possibility of a non-criminal resolution, such as Pretrial Intervention.
Where a domestic violence charge cannot be disposed of in the early stages of the case, pretrial motions can provide additional impetus for a drop or reduction in charge. Some common examples include ‘Stand Your Ground’ Motions, Motions in Limine, and Motions for Court Ruling.
Stand Your Ground offers the accused the potential for prosecutorial immunity, while a Motion in Limine and Motion for Court Ruling can demonstrate to the prosecutor the factual and evidentiary vulnerabilities in his or her case. This may further assist negotiations and deter continued litigation.
Battery-Domestic Violence prosecutions often result in trial. For this reason, both the defendant and the attorney must show resolve and trial-readiness for the duration of the case. In some cases, being ready, willing, and able to proceed to trial can itself play a major role in having a charge dropped, reduced, or diverted.
Case Example- Domestic Battery
State vs. D.V.S. (4th Judicial Circuit, Duval County) (2014)– Our client was charged with Domestic Violence Battery after snatching a phone out of the hand of his ex-wife and causing an injury to her wrist.
The incident occurred after the wife, during an exchange of the parties’ children, decided to film our client from her car. When the children entered the vehicle, our client calmly approached the driver’s-side door to tell his children goodbye. At that point, the ex-wife raised the phone 5 inches from our client’s face and continued filming. Our client then grabbed the phone and pulled downward, causing the ex-wife’s hand to allegedly slam against the door frame of the vehicle. The entire incident was captured on video.
Our attorneys were retained in the case just as the 90-day speedy trial period was about to expire. We determined to not waive speedy trial, and proceeded to file multiple motions in limine to exclude the 911 call and other critical items from evidence. We also filed a Motion for Court Ruling to determine the admissibility of evidence that would be used to impeach the credibility of the alleged victim.
Despite these measures, the State Attorney refused to drop the charge, and insisted on a plea to Domestic Battery, which would have created a permanent criminal record, interfered with child custody rights, and required completion of the Batterer’s Intervention Program.
At trial, our attorneys raised issues of self-defense and consent. On self-defense, we argued that that the placement of the phone 5 inches from our client’s face created a reasonable belief that the victim was about to make unlawful contact. We further argued that the victim was attempting to provoke an incident, and that the unconsented touching was therefore not against her will. Our attorneys further exposed multiple misrepresentations by the ex-wife, which undermined her credibility with the jury.
Outcome: Not Guilty
Contact Our Attorneys
Domestic Violence Battery is a serious charge with potentially devastating consequences for the accused. Given the numerous defenses and litigation strategies that can be employed to avoid a conviction, no person should attempt to resolve their case without first consulting with an attorney.
If you have been accused Domestic Battery, contact Hussein & Webber, PL to discuss your legal options.