Miami Domestic Violence Lawyer
Arrested for domestic violence or battery in Miami-Dade County?
At Hager & Schwartz, P.A., Miami domestic violence attorneys have gotten over 95% of all their domestic violence cases dismissed without the client ever appearing in court. We understand, and our extensive experience has confirmed, that the domestic violence statutes in Florida are rather one-sided against the accused. Florida law allows police officers to make a domestic violence arrest if any evidence exists, regardless of the credibility of such evidence.
The reality is that police officers often make arrests solely on the alleged victim’s or witness’s statements without there being any actual physical evidence of domestic abuse. The police do not care about your side of the story. Public policy demands that law enforcement take any and all action to prevent even the possibility of future violence, regardless of whether the accused is completely innocent. However, our domestic violence lawyers in Miami do care about your side of the story and will take whatever legal steps necessary to protect your rights and defend your freedom.
What Are Florida’s Domestic Violence Definitions?
The state’s domestic violence definitions can be found in Florida Statutes § 741.28. It provides that a person commits the offense when they engage in criminal conduct against a family or household member that can or does result in physical injury or death. Crimes named explicitly in the statute include assault, battery, stalking, and kidnapping, among others.
A family or household member is defined as:
- Former spouse
- Relative by blood or marriage
- People who currently lived or formerly lived together as a family
- Biological parents of a child (regardless of marital status)
Except for biological parents of the same child, for individuals in any of the relationships listed above, to be considered family or household members under the domestic violence law, they must currently live together or have lived together at some point in the past.
What Is Considered Domestic Violence in Florida?
Domestic violence, which is commonly referred to as domestic battery, can occur in various forms. Physical violence, threatened violence, and abuse are considered forms of domestic violence. They are punishable under Florida’s domestic violence laws.
Domestic Violence Acts
Below is a list of acts that can be considered domestic violence:
- Pushing or shoving
- Hair pulling
- Pursuing unwanted sexual activity
Although all criminal law cases are taken seriously, domestic violence cases in Florida are treated with special care. In many matters, Domestic Violence Units are ready to aggressively pursue those facing accusations.
Types of Domestic Violence Crimes in Florida
As mentioned earlier, various acts can be considered domestic violence in Florida. Such conduct falls under a range of criminal laws. Thus, the behavior leading to a domestic violence accusation can be charged as a specific crime.
Florida law explicitly lists the following crimes that can be charged as domestic violence:
- Assault: Intentionally threatening to commit violence upon another person.
- Aggravated assault: Committing assault with a deadly weapon or with the intent to commit a felony.
- Battery: Touching or striking a person without their consent or causing bodily harm.
- Aggravated battery: Committing battery and causing great bodily harm or using a deadly weapon.
- Sexual battery: Engaging in sexual intercourse without consent.
- Stalking: Repeatedly following or harassing someone and causing substantial emotional distress.
- Aggravated stalking: Aggravated stalking is a serious offense that can have severe consequences. The offense is committed when someone willfully and repeatedly follows or harasses another person, making a credible threat against that person. The threat must be one that would place the victim in reasonable fear for their safety or the safety of their family. Aggravated stalking is often prosecuted as a felony, and penalties can include fines, imprisonment, and restraining orders. In some states, the offense is also punishable by probation or community service. Victims of aggravated stalking may also file civil lawsuits against their stalkers. If you have been the victim of stalking, it is important to contact law enforcement and get help from a qualified Miami domestic violence lawyer.
- Kidnapping: Abducting another person and intending to hold them for ransom, commit a felony, cause harm to them, or interfere with government business.
- False imprisonment: Abducting or confining a person against their will.
An accusation of any of the offenses listed above or other crimes that could have resulted or did result in harm to a family or household member should be taken seriously. Reach out to Hager & Schwartz, P.A. to get aggressive defense from our Miami domestic violence lawyers.
Domestic Violence & False Arrests in Florida
Domestic violence is a serious issue that warrants immediate action, but false arrests can also have serious consequences for those allegedly committing the abuse. Without probable cause and adequate evidence, an innocent person may face legal repercussions and damage to their reputation. In some cases, a false arrest for domestic violence may even be used as a tactic in further abuse, with the abuser falsely accusing their partner in hopes of manipulation or retribution. It is important for law enforcement and legal professionals to thoroughly investigate all claims and gather limited evidence before making an arrest. By taking the time to ensure the accuracy of an accusation, we can better protect those who have been wrongly accused.
Penalties for a Domestic Violence Conviction in Florida
Domestic violence can be a misdemeanor or felony. The level of charge is tied to the conduct involved and the severity of the offense. Most often, the prosecutor determines the charges based on the facts of the case as supplied by the victim and any witnesses.
Because a range of crimes can be considered domestic violence, the potential conviction penalties vary depending on the specific offense the defendant has been accused of.
Below are the charges and punishments that can be levied in a domestic violence case:
- Up to 60 days of incarceration and/or
- Up to $500 in fines
- Up to 1 year of incarceration and/or
- Up to $1,000 in fines
- Up to 5 years of imprisonment and/or
- Up to $5,000 in fines
- Aggravated assault
- Aggravated stalking
- False imprisonment
- Up to 15 years of imprisonment and/or
- Up to $10,000 in fines
- Aggravated battery
- Up to life imprisonment or
- Up to 30 years of imprisonment and/or
- Up to $10,000 in fines
- Sexual battery
In addition to the penalties listed above, a domestic violence conviction can also lead to the following:
- Minimum of 1 year of probation
- Completion of a batterers’ intervention program as a condition of probation
- Minimum of 10 days in jail for a first offense resulting in bodily harm
- Minimum of 15 days in jail for a second offense resulting in bodily harm or a first violent offense committed in the presence of a child under 16 years of age
- Minimum of 20 days in jail for a third or subsequent offense resulting in bodily harm or for a second violent offense committed in the presence of a child under 16 years of age
- Minimum of 30 days in jail for a third or subsequent violent offense committed in the presence of a child under 16 years of age
Dropping Domestic Violence Charges Florida
One of the most common questions that deals with domestic violence remain, “Can alleged victims have domestic violence charges dropped?” The short answer to this question is no. According to various sources, once law enforcement or the State Prosecutor’s Office has issued a domestic violence charge. the victim cannot have the charges dropped.
Why Can’t the Victim Have Domestic Violence Charges Dropped?
A victim cannot drop most domestic violence charges because domestic violence is considered a crime, and crimes are governed by the State. So then, it is the State that issues the criminal charges rather than the victim.
The prosecutor is the only person with the authority to drop domestic violence charges. Florida domestic violence laws state that a person can be arrested or prosecuted regardless of whether the victim does not wish to move forward. In fact, even spousal abuse cases can be extremely difficult to drop against the abuser.
Laws state that a prosecutor can proceed with the case even if the victim does not wish to cooperate or testify in court. However, it is crucial to keep in mind that although a victim may not be able to make the decision to drop the charges, the victim will play a crucial role as proceedings advance.
Why Do Parents Accused of Domestic Violence Need Legal Representation?
The typical situation in a domestic violence case involving children: One parent accuses another of domestic violence and then they file an injunction and ask the Court to prevent the offending parent from having contact with them and their child(ren). This hearing is done ex parte (without the other party present) and the Court has to make a preliminary determination whether sufficient, the bare bones minimum, evidence exists in issuing the injunction. Almost all of the time, the Court grants a temporary injunction in order to ensure that the filing party is temporarily protected from harm. Thereafter, a hearing on whether a permanent injunction should be issued is then set, usually within 14 days. However, the offending parent would not be able to have contact with the complaining parent or their child(ren) during those 14 days.
The offending party is then given an opportunity to present rebuttal evidence and then the judge makes a final determination on whether cause exists to grant a permanent injunction for a fixed period of time, or for an indefinite period of time. If the Court believes that domestic violence occurred, the judge may impose a permanent injunction preventing the offending parent from seeing his child(ren) until such time that the Court establishes a visitation plan. This could be incorporated as part of the final injunction hearing or may have to wait until the family court judge where the divorce was filed has the time to address the visitation issue, which could be another thirty days after the injunction hearing.
The most important right that you can assert when being faced with a domestic violence injunction involving children, is the right to have an Miami domestic violence lawyer represent you in the matter. It is near impossible for a Court, after having heard all the evidence presented and granting a final injunction, to undo their ruling. A party would have to show that there was a substantial change of circumstances in order for a court to vacate their previously entered order.
Evidence in a Miami Domestic Violence Case
When it comes to domestic violence cases in Miami, prosecutors make decisions on how the case will go based on the evidence they have. The strength of your case will depend significantly on the domestic violence lawyer in Miami you choose, and how much evidence (or lack of) there is. Domestic violence charges are often dropped for the same reasons.
There Is Insufficient Evidence
A major reason to drop any criminal case is when there is insufficient evidence to support the claims. There are many different types of evidence that must be established to convict someone of domestic violence successfully.
Lack of Willfulness
Willfulness can be explained simply as the reason to why someone committed an act of domestic violence. For example, if you knocked a cup out of your significant other’s hand on accident while talking, there is no evidence of willfulness to commit the abuse. This can be used as evidence to defend yourself.
The ‘Victim’ Isn’t Credible
If the victim gives the prosecutor a reason to believe they are not credible, they could drop all charges.
Some examples include:
- A history of mental illness
- A history of making false accusations
- Having an ulterior motive (to win child custody or a property battle)
Lack of Serious Injuries
A serious bodily injury typically means that the victim suffered an injury that required medical treatment or that loss of impairment of any bodily function or organ occurred. Some examples include:
- Broken limbs
- Black eyes
- Large gashes requiring staples or stitches
- Permanent or partial disfigurement
If a medical physician testifies that the victim’s injuries were not very serious, or that the symptoms were over-exaggerated, the prosecutor could lighten the related charges.
Domestic Violence Orders of Protection in Florida
Individuals who have been or believe they will be a victim of domestic violence can petition for an injunction to protect themselves against future harm. The petitioner must state what injury they have suffered or may suffer causing them to seek relief.
The court will hold a hearing to decide whether the alleged victim’s request should be approved. The hearing is where both parties can present their sides of the story. However, in some cases, a judge can issue a temporary ex parte order, which means the decision is based only on the alleged victim’s statements. An ex parte order can be valid for up to 15 days. The court must hold a full hearing before the ex parte order expires.
If a judge grants the injunction, they may order various conditions, including:
- Restraining the alleged offender from committing future domestic violence
- Awarding the alleged victim possession of a shared home
- Ordering a parenting plan with scheduled parenting time
- Ordering the alleged offender to pay child support
- Requiring the alleged offender to complete a batterers’ intervention program or other treatment
Violating a domestic violence protection order is a first-degree misdemeanor, punishable by up to 1 year in jail and/or up to $1,000 in fines.
Fight Your Domestic Violence Charge in Miami
Domestic violence laws are complicated. In these cases, it is important to retain an experienced Miami domestic violence lawyer with the necessary skills and knowledge to defend you. Our Miami domestic violence attorneys at Hager & Schwartz, P.A. recognize the adverse impacts a person can face if accused of an offense. That is why we are here to explore the facts of your case and determine an appropriate plan to seek a favorable outcome, such as dropped charges or reduced penalties.
Brett Schwartz is one of the best attorneys
“Brett Schwartz is one of the best attorneys available in Florida. I was charged with a DUI with Serious Bodily Injury and Leaving the Scene. I was facing a possible 10 year sentence with a Judge that rejected our plea on several occasions and seemed to have a soft spot for cases like this. And then when everything seemed hopeless and I spent my ...”
I thoroughly recommend Brett Schwartz as a defense attorney.
“I thoroughly recommend Brett Schwartz as a defense attorney. He worked tirelessly and relentlessly to get my case dropped even before it went to trial. He succeeded, although the odds were heavily stacked against us. Thanks to our overcrowded justice system, the entire ordeal took two months, and was the most stressful experience of my ...”
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“We worked with Brett on a domestic violence charge. He was the third lawyer we went to and we FINALLY got the result we desired. His knowledge of the law, the system and straightforwardness are beyond impressive. He "tells it like it is", but he knows how to get the job done. In our case, we were stuck in traffic and he had won before we even got ...”
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“I knew in the few minutes in speaking with Brett that he was the right attorney for my Domestic Violence case. He put me at ease immediately and got the ball rolling to rectify the issue.”