DOMESTIC VIOLENCE
Violence within the home or between people who have shared a life together will always be a challenging situation. The complexities of life can create confusing and sometimes terrible effects. Many times unhealthy relationships result in trauma due to substance abuse, mental illness, or financial issues. When those conflicts devolve into an out of control situation, often law enforcement are called for help. Once police are on the scene of a domestic violence call, they will investigate everything and everyone for evidence of a crime regardless of what the 911 caller wants to happen. Because of the high voltage emotional issues related to domestic violence calls, in addition to investigating a possible crime, they also want to prevent crime that may occur after they leave. This means that many times when police respond to a domestic violence call, someone is going to jail because of the low standard of probable cause. If you are arrested for domestic violence, conditions of your bond often will limit your contact with people involved in the incident, limit your ability to go back to your home and may require you to wear a GPS ankle monitor.
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Call (407) 274-7501 or email seth@sethhymanlaw.com to schedule a consultation today!
WHAT IS DOMESTIC VIOLENCE?
One person dies at the hands of a spouse, ex-spouse, or cohabitant approximately every 3 days.
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“Domestic violence” means 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 of one family or household member by another family or household member.
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“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
WHAT HAPPENS AFTER A CONVICTION FOR DOMESTIC VIOLENCE?
If a person is adjudicated guilty of a crime of domestic violence, and the person has intentionally caused bodily harm to another person, the court shall order the person to serve a minimum of 10 days in the county jail for a first offense, 15 days for a second offense, and 20 days for a third or subsequent offense as part of the sentence imposed. If the crime of domestic violence takes place in the presence of a child under 16 years of age who is a family or household member of the victim or the perpetrator, the court shall order the person to serve a minimum of 15 days in the county jail for a first offense, 20 days for a second offense, and 30 days for a third or subsequent offense as part of the sentence imposed.
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If a person is found guilty of, has adjudication withheld on, or pleads nolo contendere to a crime of domestic violence, that person shall be ordered by the court to a minimum term of 1 year’s probation and the court shall order that the defendant attend and complete a batterers’ intervention program as a condition of probation. The imposition of probation does not preclude the court from imposing any sentence of imprisonment.
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741.32 Batterers’ intervention programs.—The Legislature finds that the incidence of domestic violence in this state is disturbingly high and that, despite the efforts of many to curb this violence, one person dies at the hands of a spouse, ex-spouse, or cohabitant approximately every 3 days. Further, a child who witnesses the perpetration of this violence becomes a victim as he or she hears or sees it occurring. This child is at high risk of also being the victim of physical abuse by the parent who is perpetrating the violence and, to a lesser extent, by the parent who is the victim. These children are also at a high risk of perpetrating violent crimes as juveniles and, later, becoming perpetrators of the same violence that they witnessed as children. The Legislature finds that there should be standardized programming available to the justice system to protect victims and their children and to hold the perpetrators of domestic violence accountable for their acts. Finally, the Legislature recognizes that in order for batterers’ intervention programs to be successful in protecting victims and their children, all participants in the justice system as well as social service agencies and local and state governments must coordinate their efforts at the community level.
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An employer shall permit an employee to request and take up to 3 working days of leave from work in any 12-month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence. This leave may be with or without pay, at the discretion of the employer. This applies to an employer who employs 50 or more employees and to an employee who has been employed by the employer for 3+ months.
HOW DO I FIGHT A CIVIL INJUNCTION?
A civil injunction (i.e. a Restraining Order) prevents contact by one person against another person. This process is a civil action in family court and is separate from any criminal case that may arise from the same incident. This process does not put someone at risk of incarceration, but may be established for an unlimited period of time or a set duration. If ordered by a Judge, all civil injunctions may only be modified or terminated at a later date by a Judge.
The individual filing the Petition for Injunction outlines why they may be at risk of immediate and present danger of domestic violence. For purposes of a civil injunction, “domestic violence” means an act as defined in s. 741.28 and includes a threat of such acts committed against an individual in a domestic situation, regardless of whether these acts or threats have been reported to law enforcement officers. Petitioner is either a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. There are also injunctions that may be pursued for stalking, repeat violence, dating violence, and sexual violence. If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction, pending a full hearing, and may grant such relief as the court deems proper. If a Court does grant a temporary injunction, then the Respondent will be restricted from any contact with the Petitioner and a violation of that order is a crime. The Judge will set a full adversarial hearing to determine whether the need for a final injunction is proven by the Petitioner by competent, substantial evidence.
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It is a violation of s. 790.233, and a misdemeanor of the first degree, punishable up to $1,000 and 1 year in county jail or 1 year probation, for a person to violate a final injunction for protection against domestic violence by having in his or her care, custody, possession, or control any firearm or ammunition.
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Whether or not there is a criminal prosecution, the court shall order the respondent to attend a batterers’ intervention program if it finds a willful violation of a domestic violence injunction.
Any person who suffers an injury and/or loss as a result of a violation of an injunction for protection against domestic violence may be awarded economic damages for that injury and/or loss by the court issuing the injunction. Damages includes costs and attorneys’ fees for enforcement of the injunction.
CRIMES OF DOMESTIC VIOLENCE
* If you are an injured victim of domestic violence, immediately call 911. If you believe you are at risk of committing domestic violence, immediately disengage from the situation and leave. Do not even touch the other person involved in the confrontation. If drugs, alcohol or mental health issues are putting you at risk for committing a domestic violence crime, please see the "Make A Change" section on this website for organizations that can help you.*
DOMESTIC VIOLENCE ASSAULT
The crime of domestic violence simple Assault is a second degree misdemeanor punishable by up to a $500 fine and 60 days in county jail or 1 year supervised probation.
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To prove the crime of simple Assault, the State must prove the following three elements beyond a reasonable doubt:
1. Defendant intentionally and unlawfully threatened, either by word or act, to do violence to victim.
2. At the time, defendant appeared to have the ability to carry out the threat.
3. The act of defendant created in the mind of victim a well-founded fear that the violence was about to take place.
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4. Defendant was a family or household member of victim.
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The crime of domestic violence Aggravated Assault is a third degree felony punishable by up to a $5,000 fine and 5 years in state prison or 5 years supervised probation.
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To prove the crime of domestic violence Aggravated Assault, the State must prove the following element in addition to those for simple Assault:
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5. The assault was made with a deadly weapon or with a fully-formed conscious intent to commit a separate felony upon the victim.
DOMESTIC VIOLENCE BATTERY
The crime of domestic violence simple Battery is a first degree misdemeanor punishable by up to a $1,000 fine and 1 year in county jail or 1 year supervised probation.
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To prove the crime of domestic violence simple Battery, the State must prove the following element beyond a reasonable doubt:
1. Defendant intentionally touched or struck victim against their will; or
2. Defendant intentionally caused bodily harm to victim.
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3. Defendant was a family or household member of victim.
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The crime of domestic violence Aggravated Battery is a third degree felony punishable by up to a $5,000 fine and 5 years in state prison or 5 years supervised probation.
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To prove the crime of domestic violence Aggravated Battery, the State must prove the following element in addition to those for simple Battery:
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4. In committing the battery, the Defendant either used a deadly weapon or intentionally or knowingly caused great bodily harm, permanent disability or permanent disfigurement to the victim..
DOMESTIC VIOLENCE STALKING
For domestic violence simple Stalking, this crime is a first degree misdemeanor punishable by up to a $1,000 fine and 1 year in county jail or 1 year supervised probation.
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To prove the crime of domestic violence simple Stalking, the State must prove the following element beyond a reasonable doubt:
1. Defendant willfully, maliciously, and repeatedly followed, harassed or cyberstalked victim.
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2. Defendant was a family or household member of victim.
“Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.
“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.
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The crime of domestic violence Aggravated Stalking is a third degree felony punishable by up to a $5,000 fine and 5 years in state prison or 5 years supervised probation.
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To prove the crime of domestic violence Aggravated Stalking, the State must prove the following element in addition to those for domestic violence simple Stalking:
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3. Defendant made a credible threat to the victim or Defendant had knowledge a civil injunction had been entered against them protecting the victim or the victim was less than 16 years of age.
VIOLATION OF A DOMESTIC VIOLENCE INJUNCTION
For the first offense, this crime is a first degree misdemeanor punishable by up to a $1,000 fine and 1 year in county jail or supervised probation.
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For the second offense, this crime is a third degree felony punishable by up to a $5,000 fine and 5 years in state prison or 5 years supervised probation.
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For purposes of this crime the term “conviction” means a determination of guilt which is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.
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To prove the crime of Violation of an Injunction for Protection Against Domestic Violence, the State must prove the following two elements beyond a reasonable doubt:
1. A temporary or final injunction for protection against domestic violence was issued by a court against Defendant for the benefit of victim.
2. Defendant willfully violated the injunction by:
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a. Refusing to vacate the dwelling that the parties share; or
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b. Going to, or being within 500 feet of, the petitioner’s residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family or household member; or
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c. Committing an act of domestic violence against the petitioner; or
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d. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner; or
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e. Telephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact through a third party; or
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f. Knowingly and intentionally coming within 100 feet of the petitioner’s motor vehicle, whether or not that vehicle is occupied; or
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g. Defacing or destroying the petitioner’s personal property, including the petitioner’s motor vehicle; or
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h. Refusing to surrender firearms or ammunition if ordered to do so by the court.
DOMESTIC VIOLENCE FALSE IMPRISONMENT
For domestic violence False Imprisonment, this crime is a third degree felony punishable by up to a $5,000 fine and 5 years in state prison or 5 years supervised probation.
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To prove the crime of domestic violence False Imprisonment, the State must prove the following element beyond a reasonable doubt:
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1. Defendant forcibly, secretly, or by threat, confined, abducted, imprisoned, restrained victim against their will.
2. Defendant had no lawful authority to do so.
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3. Defendant was a family or household member of victim.
DOMESTIC VIOLENCE BATTERY BY STRANGULATION
This crime is a third degree felony punishable by up to a $5,000 fine and 5 years in state prison or 5 years supervised probation.
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To prove the crime of Domestic Battery by Strangulation, the State must prove the following three elements beyond a reasonable doubt:
1. Defendant knowingly and intentionally impeded the normal breathing or circulation of the blood of the victim against their will by applying pressure on the throat or neck of victim or by blocking the nose or mouth of victim.
2. In so doing, Defendant created a risk of, or caused, great bodily harm to victim.
3. Defendant was a family or household member of victim.
VIOLATION OF PRETRIAL RELEASE ON A DOMESTIC VIOLENCE ARREST
This crime is a first degree misdemeanor punishable by up to a $1,000 fine and 1 year in county jail or supervised probation..
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To prove the crime of Violation of a Condition of Pretrial Release from a Domestic Violence Charge, the State must prove the following four elements beyond a reasonable doubt:
1. Defendant was arrested for an act of domestic violence.
2. Before their trial, defendant’s release on the domestic violence charge was set with a condition of pretrial release.
3. Defendant knew that a condition of their pretrial release was [insert condition].
4. Defendant willfully violated that condition of pretrial release by [insert the manner in which the defendant is alleged to have violated pretrial release].
DOMESTIC VIOLENCE KIDNAPPING
For domestic violence Kidnapping, this crime is a first degree felony punishable by up to life in prison.
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To prove the crime of domestic violence Kidnapping, the State must prove the following element beyond a reasonable doubt:
1. Defendant forcibly, secretly or by threat, confined, abducted, imprisoned the victim against their will.
2. Defendant had no lawful authority to do so.
3. Defendant acted with intent to:
a. hold the victim for ransom or reward or as a shield or hostage.
b. commit or facilitate the commission of another felony.
c. inflict bodily harm upon or to terrorize the victim or another person.
d. interfere with the performance of any governmental or political function.
When 3b is alleged:
In order to be Kidnapping, the confinement, abduction, imprisonment
a. must not be slight, inconsequential, or merely incidental to the additional felony;
b. must not be of the kind inherent in the nature of the additional felony; and
c. must have some significance independent of the additional felony in that it makes the additional felony substantially easier of commission or substantially lessens the risk of detection.
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4. Defendant was a family or household member of victim.