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Former State Prosecutor

Jason Hicks Law Firm

Protecting your Liberty, Finances, and Reputation

Potential Defenses to Domestic Violence Battery Accusations

Whenever our firm receives a domestic violence case, we immediately begin an investigation to determine the true facts. This often includes interviewing the accuser to determine his or her position on what really happened, to find out if the accuser is at all cooperative with the prosecution, and if they want charges dropped. Remember, although the accused has probably been ordered not to have contact with the accuser, the attorney is allowed to interview witnesses including the accuser. Although the State Attorney will decide independently whether to move forward with charges, they do take into consideration the accuser's recommendation on the matter.

We also interview other witnesses if any to find out what actually happened and we obtain sworn affidavits to provide the State Attorney's Office for their review. We often have to take photographs of the Defendant's injuries because law enforcement never did. Either they didn't think it was important or they didn't want the evidence to come to light. In other words, we conduct the full investigation that law enforcement should have done to get to the truth of what really happened. Often the truth can be used to convince the State Attorney's Office to dismiss your case.

In some cases, we recommend family counseling and work with psychological experts in resolving the disputes to avoid the Court process in an effort to prevent a criminal record.

The mere accusation of domestic violence often has increasingly harmful consequences on everyone involved. However, steps must be taken immediately by a proactive attorney to get to the truth and ensure that the accused is treated fairly and gets the appropriate outcome. As a former prosecutor, and one who previously prosecuted hundreds of domestic violence battery cases, Jason Hicks has the experience to guide you through the gauntlet of criminal court and help you defend against this allegation.

Enhanced Penalties for Domestic Violence

In addition to the statutory penalties applicable to any criminal offense, Domestic Violence charges also carry the following enhanced penalties.

  • Minimum Mandatory Jail Time of Five (5) days in Jail if there was intentional bodily harm caused,
  • Mandatory 1 year Probation
  • Mandatory 26-29 Week Batterers Intervention Program,
  • A conviction or even withhold of adjudication is Ineligible to ever be Sealed or Expunged from your criminal record,
  • Forfeit your right to have a gun while on probation, even for a misdemeanor, and •
  • Your concealed weapons permit will be revoked.

So if one were convicted of a misdemeanor battery with a domestic violence enhancer, the convicted person would be facing the standard potential penalties for a 1st degree misdemeanor (up to one year in county jail and a $1,000 fine) with the addition of the mandatory penalties described herein.

Domestic Violence Battery in Florida

If you have been accused of committing a domestic violence battery, you are in a tough spot. Whenever an accusation of domestic violence is made in Florida, the police and State Attorney's Office are strongly biased towards believing whatever the alleged victim tells them happened. And frankly, they see enough examples of actual domestic violence to be rightfully biased. However, domestic violence accusations are often exaggerated and sometimes outright fabricated by spiteful partners and family members when relationships sour. Because law enforcement is most often biased and favors the alleged victim, often the "other side" of the story never gets written in a report, and evidence proving innocence is lost or never documented. This places the wrongfully accused into a system where they are "guilty until proven innocent." It shouldn't be that way. But it is the reality.

Law enforcement officers have "immunity" from being sued for most wrongful arrests in domestic violence cases. This commonly results in arrests being made based on very little evidence. This is a major reason why the court system must often deal with false allegations of domestic violence.

Under Florida law, if the police respond to a domestic disturbance call at a residence and a person claims to be a victim of a domestic battery, the person accused will be arrested and held in jail until he or she can meet with the judge. An arrest gets made in almost every call due to the "immunity" described above. In almost every case, the judge will order a “no contact” provision, which means that the accused cannot have any direct or indirect contact with the alleged victim. This means that the accused cannot return home  until the order is modified or until the case is finished. the common result is that the accused cannot see his or her children in common with the accuser unless arrangements are made through a third party. If the accuser and the alleged batterer work at the same location, the accused cannot go to work. One can see how this system can be abused by a fabricating and spiteful partner.

Attorney Jason Hicks has experience getting these "no contact" orders modified so that the accused can have contact and resume a relationship with his children, and sometimes convince the court to allow contact with the accuser.

If you have been arrested for battery with domestic violence, the first thing you will quickly learn is that the alleged victim cannot "drop charges." Only the State Attorney's Office can decide whether to prosecute, even if the victim is uncooperative or wants charges dropped.

Domestic Violence batteries are treated more harshly than a typical misdemeanor battery because it is a politically charged subject in Florida. Often, domestic violence cases are prosecuted aggressively, and if you are a repeat offender, your case may be prosecuted by a specially trained prosecutor who focuses solely on domestic violence cases. Those accused of a battery with domestic violence need to understand that they have been charged with a battery, but with enhanced penalties due to the "domestic" nature of the relationship.

There are three important things that person accused of battery with domestic violence should be familiar with: 1) the definition of domestic violence, 2) the mandatory penalties if one is convicted of domestic violence, and 3) the potential defenses to a domestic violence accusation.

So contact Brevard County Domestic Violence Attorney Jason Hicks for a free consultation.

Call Today:  321.868.2585

Definition of Domestic Violence

The term domestic violence is commonly associated with a fight between a husband and a wife. Domestic violence assaults and batteries are just the two most common "domestic violence" charges.  Domestic violence refers to a wide range of criminal offenses including 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, committed by a family or household member against another family or household member.

“Family or household member” refers to any of the following persons:

  • current or former spouses
  • persons related by blood or marriage
  • persons currently or formerly residing together as if a family, or
  • parents who have a child in common, regardless of whether they were at any time married.

With the exception of parents who have a child in common, the persons must currently or previously have resided together in the same single dwelling unit in order to be considered a family or household member under Florida law.

As one can see, the term domestic violence itself does not refer to one specific crime. It is an "enhancer," which makes whatever crime you are charged with (such as battery) more serious because it carries with it enhanced penalties above and beyond what the underlying charge carries.