Domestic violence cases are tricky, because the witnesses involved are typically under the influence of either alcohol, anger, or both. Yes, most of us have all said things from time to time that we did not mean, or that were not necessarily 100% accurate, especially in the heat of the moment. The problem is, under the influence of intense anger or under the influence of alcohol (for example), these words and actions can get us into a bit of trouble. As a result, the legal guidance of an experienced Orlando domestic violence attorney is vital.
Dismissing a Domestic Violence Offense
Domestic violence charges can be dismissed. Dismissal comes in many forms, but it boils down to either legal issues with the case, or evidentiary issues. A legal issue may be a Stand Your Ground motion, in which a resident of a household need not back down from a physical confrontation when they are defending themselves (yes, it is more complicated than that, but you get the idea). Or, dismissal may come in the form of evidentiary issues, whereby we can supplement the record with sworn statements regarding facts that the police never bothered to uncover during their initial investigation. After all, the police are often more concerned about separating the angry couple (via an arrest) than they are interested in getting to the truth of the matter. I’m just saying.
Myths About Dismissing a Domestic Violence Offense
Domestic violence is one of those charges that probably has more myths surrounding it than any other crime. So, let’s address a few of these myths right now. One urban myth involves this notion that an alleged victim can simply call the State Attorney and have everything dropped. Unfortunately, one call to the State is not going to erase a battery accusation. Which then brings me to the second urban myth surrounding Battery DV cases–that the alleged victim can simply file a declination of prosecution and everything will go away with the filing of such.
Just yesterday (well, not sure when you’re reading this), I had a lady call to tell me that she was filing a Declination of Prosecution with the clerk, and she wanted to know how long it would take before the charges were dropped. As you could imagine, the premise of her question was way off. Its like asking someone “When are you going to stop beating your wife?” The fact is, the filing of a declination is not some sort of magic charge dismissal document. Far from it. That being said, sworn affidavits like a Drop Charge Affidavit can be helpful in order to explain facts that the police conveniently left out of the arrest report. When used in that way, these statements can help the case resolve favorably.
Factors that Could Increase the Severity of a Domestic Violence Offense
A domestic violence charge can be either a misdemeanor or a felony, depending on the level of alleged injury and the type of weapon used. For example, if a husband hits his wife and his wife sustains permanent injuries (scars, for example), this would constitute either a felony battery or an aggravated battery causing serious bodily injury.
Effective defense in battery cases rests on an evaluation of the circumstances surrounding the accusations. How many people “saw” the alleged crime? What type of evidence is available? For example, will there be a 911 recording? Will there be photographs? [Unfortunately, 911 calls are typically admissible into evidence, even though they are not an accurate description of what happened]
Domestic violence accusations can amount to nothing more than a “He Said, She Said” case. But don’t be fooled by this oversimplification–witness testimony in the form of “She said I did this to her” is enough to get a conviction (unfortunately). Yes, sometimes the State has no real evidence to back up their accusations. No photos. No video. No medical reports. No nothing. Just one person’s word against another. And this begs the question: with no physical evidence, can the prosecutors present “evidence” to support their accusations?
Some police investigators simply chose to believe the accuser rather than take the time needed to uncover real physical evidence. Shocking, I know. Our law firm examines all the possible motives for the battery arrest. Was there a break-up or divorce pending? What is the extent of the alleged injuries? Are the injuries fresh, or can we find old photos which may reveal these injuries have been around for a while? (Seen this scenario many times) We also need to compare sworn statements, as some alleged victims give one story to the police, then give another story to a domestic court to get an injunction. Does the “story” match up to evidence posted to social media sites? And let’s not forget, a person arrested for domestic violence may still be immune from prosecution under Florida’s Stand Your Ground statute.
What Transforms a Simple Battery Into a “Domestic Violence” Case?
A “Domestic Violence” charge is really just a battery charge that is enhanced because of the relationship between the couple. If the couple are married, that’s easy, but under what conditions can a battery be enhanced to a domestic violence charge when the couple is not married, and not living together? Well, our legislature has thought of just about everything, they call it “dating violence”, and here’s some guidelines:
“Dating violence” is simply a regular battery case, but between people in a romantic relationship. The existence of such a relationship shall be determined based on the consideration of the following factors:
- A dating relationship must have existed within the past 6 months;
- The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
- The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.
The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.
Declination of Prosecution, Drop Charge Affidavit
Often, domestic violence battery charges are based upon the sworn statements of an alleged victim. As we mentioned before, a large percentage of these incidents are fueled by alcohol. As such, alleged victims may have a more accurate view of the events upon sober reflection. When this happens (and it happens a lot!), it is important for the defense attorney to make the alleged victim’s sober & accurate reflections known to the prosecution. This statement is known by many names, most commonly a Declination of Prosecution, or a Drop Charge Affidavit. Of course, changed testimony can create problems of perjury and/or filing a false police report–so these affidavits should be drafted with care. Some overly ambitious prosecutors may attempt to ignore their star witness’ new sworn statement, but if you’re interested in digging deeper check out my article “Recanted Testimony in Battery Cases“.
Can a Domestic Violence Battery Charge Be Proven if the Victim Does Not Appear in Court?
In other words, what happens if the victim doesn’t show up for trial? Well, think about what happens in a murder case, where the victim of murder doesn’t show up for trial either, but the State can prove their case through other means. In many ways, a domestic violence battery case can be more complicated to prove without a victim, and there can be legal ramifications when a witness fails to appear for trial (assuming, of course, that she was legally subpoenaed to appear, you’d be surprised how many times alleged victims are sent subpoenas in ways that do not permit the court to issue any sort of sanction should they fail to appear…A topic for another day).
For the most part, it can be extremely difficult to prove a battery case when the victim fails to testify. In such cases, the prosecutor will hope to have some sort of independent witness who saw the whole incident unfold (neighbor, friend, son, daughter, etc.). But independent witness cases can only get you so far, as these folks must personally know the alleged victim in order to identify them. Florida’s battery statute requires that the State prove the precise identity of a victim. I’ve written a whole article about a domestic violence case that went to trial without a victim, and how the conviction was overturned on appeal, its called “Can You Prove Battery Without a Victim?“.
Speak with an Orlando Domestic Violence Attorney Today
If you have been charged with any type of domestic battery, you need immediate, effective defense work that our law firm offers. We urge you to contact us today for a free consultation. Call an Orlando domestic violence lawyer today for help.