I’ve said it over and over that when we’re talking about domestic violence battery we’re really just talking about a simple regular battery where there’s a special relationship to the victim. The prosecutor can prove a battery by showing that the defendant committed and intentional striking of or causing an item to strike the victim.
Now when I say causing an “item” to strike, I also mean a “material”. Now you’re asking what do I mean by material well I’ll tell you, I mean spit. I can’t tell you how many cases have come through the Broward county criminal justice system involving an offender to the spit on a client in the past couple of years. It’s downright crazy. The fact is that the Broward Sheriff’s office is getting tough on spitting crimes.
What are these relationships between the defendant and victim that result in a simple battery charge being filed as a domestic violence?
Well they referred to under Florida statutes as “family or household members”. This really just means spouses, husbands, wives, ex-husbands, ex wives and people related by blood or marriage. Also included under the statute are boyfriends and girlfriends that live together or have lived together in the past. Florida statutes refer to this as living together as a family. Finally, included in the definition are people that have a child together. The thing that’s important to remember about baby mamas or baby daddies is that they fall under the statute whether they have ever lived together or not.
Now what the state attorneys office DOES NOT have to prove to convict you for domestic violence battery is that the victim sustained some injuries as a result of your actions or that you actually struck them with your fists or an object. Feeding them something gross that makes them sick also qualifies. If you feed them poison and they get so sick that they almost die, you have just upgraded this misdemeanor offense to a felony.
Misdemeanor domestic violence cases can be upgraded in a number of ways.
Using a weapon such as a knife or a firearm will result in the case being filed as a felony. Even wear a weapon was not used these cases can be upgraded to a felony. For example, the degree in severity of injury to the victim will be taken into account when making this determination. If the victim’s injury meets the definition of “serious bodily injury” under Florida statutes the defendant will be looking at felony.
Even without a weapon or injury, a domestic violence battery can be filed as a felony in a couple of situations. For example, battery on a pregnant female will always be filed as a felony. While the presiding judge would consider lack of knowledge that the victim was pregnant, defendant’s knowledge is not required for the state to charge accordingly. Finally, a defendant will have the misdemeanor charges upgraded to a felony where they have previously been convicted for domestic violence battery.
So what if your case is not upgraded to a felony and was really just kicked up from a simple battery to a domestic violence battery based on your relationship with the victim? What’s so bad about that if it’s still a misdemeanor?
Three things are bad about this. First of all, domestic violence cases are presided over by specially trained and judges as well as being prosecuted by specially trained prosecutors. Prosecutors in this division are not going to be new rookie prosecutors assigned to regular misdemeanor County Court, rather, they are going to be trained and experienced.
Another thing that’s not so great do you have to deal with are the increased mandatory sentences that must be imposed upon defendants who are convicted. So instead of being subject to up to a year in jail or a year of probation, there are certain sentences that the judge will have to impose. These mandatory sentences are five days in jail (if the victim was injured), 29 weeks of batterers intervention, a forfeiture of the right to own a gun and a revocation of any concealed weapons permit.
Finally if you wind up in domestic violence court and you are convicted, you are not going to be able to have your records sealed under Florida statute section 741.28. If it were a regular battery, you could.
What about expunging a record?
There is so much confusion about this issue it’s fascinating. If you do a search on the Internet, you are going to read over and over that these cases may not be expunged under Florida law. There is seriously some bad information out there in this regard because domestic violence battery cases that have been dismissed are eligible for a record expunge. I know, because I’ve obtained them countless times for clients.
The good news is that majority of domestic violence cases in Florida are dismissed and there are a number of defenses available to an accused. If you weren’t the aggressor, you were acting in self-defense or the event didn’t even happen are all ways that you can fight the charges against you.
Perhaps the strongest defense is where the victim does not want to prosecute. This raises an interesting point with regard to conflicting information out there with regard to waivers of prosecution and whether they work or not. The truth is that sometimes they do work. The thing to take into consideration though, is that going to the state attorneys office could subject the victim in the case to being questioned, threatened and placed under subpoena. Sometimes it’s just better to tell the prosecutor over the phone. They have to prepare their case and will be reaching out to the victim at some point to get an idea as to how they are going to testify. Trust me, domestic violence prosecutor’s deal with this on a regular basis. A vast majority of these cases are dismissed because victims claim to have no memory of the event, claim that it didn’t happen described and police reports or they simply pull the shades down in their house or apartment and hide from process servers for a couple of months.
My name is William Moore. Thanks for listening and if you’ve got any other questions about domestic violence and be happy to answer them just give me a call.