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Domestic Battery, Strangulation

Domestic battery lawyer, Florida domestic battery by strangulation attorney in Florida

A person arrested for domestic battery or domestic battery by strangulation in Florida has a number of questions and concerns.  Here you will find some answers to your questions and concerns like:

How much is this going to cost me?  Should I go with the public defender?

How do I find a lawyer that is sympathetic, compassionate, and competent? 

How do I find a lawyer that has successfully represented hundreds of people charged with domestic battery and domestic battery by strangulation?

What are the potential penalties for domestic battery and domestic battery with strangulation?

How serious is this?  What is the likelihood of jail or prison time?

What does the state have to prove to convict me of domestic battery?

What if the other person hit me, we want to reconcile, the alleged victim does not want to testify against me, will the state will pick up the charges, even though victim does not want to press charges?

After listening to hundreds of people accused, many of them falsely accused of domestic battery and domestic battery by strangulation, I've found some common concerns like:

I have kids.  I can't see my kids now because of a domestic battery  or domestic battery by strangulation criminal charge.  There is a no contact order preventing me from seeing my kids and/or my wife, husband, girlfriend, boyfriend, etc.  Can that no contact order be lifted?  I am fearful of losing my job, my career.  Will they find out?  What is the best way to keep them from finding out about my domestic battery charge?  Is it even possible?  How do I get my arrest mugshot photo off the internet?  Off the sheriff's website and other websites?  Will DCF take away my kids?  Why am I getting a restraining order filed against me?  Should I testify at the restraining order hearing?  Will that hurt my domestic battery by strangulation case?

Even if the accuser does not want to press charges, can the State still go after me for domestic battery by strangulation?  What if there are no visible marks around the accuser's throat?  Can I still be convicted of domestic battery by strangulation?  How do I win a domestic battery charge?  

What can I expect to pay for a bond in a domestic battery case vs. a domestic battery by strangulation case?  It's not fair that I can't see my kids.  My kids will pay the ultimate price.  It's not fair.   

Why is domestic battery so frequently charged?

Domestic battery is an emotionally charged, gender-biased, false allegation ridden crime.  It is clearly one of the most common crimes charged in West Palm Beach and all throughout Florida. There are more false allegations of domestic battery than perhaps any other crime. It is so easy to get another person arrested for domestic battery or domestic battery by strangulation in Florida.  Why?  Because, if the cops are called about a domestic violence issue, somebody is going to jail.  The rationale behind it is the cops don't want the domestic violence situation to escalate into aggravated battery with a firearm or murder.

Why do accusers lie to get their so-called loved one convicted of domestic battery?

There is almost always a motive for the accuser to lie. Many couples fight daily over money.  They never have enough.  They think the other person spent money on something selfishly.  Or worse, on their other lover.  Hell hath no fury like a woman scorned.  I say like a woman, because, let's face it, domestic battery and domestic battery by strangulation are both gender-biased crimes.  The guy is almost always the one who goes to jail.  Even if the woman started it.  

Jealousy.  If the accused is having an affair and the complaining witness finds out about it, that is a huge motive to lie about an alleged domestic battery.  Few things hurt the heart deeper than betrayal of trust.

Greed can be a powerful motivator. Maybe the woman is going to divorce the man.  She wants a leg up in the divorce case.  She wants permanent alimony, child support and rehabilitative support.  How is the family law judge going to treat a wife beater versus a victim of domestic violence.  Even if it is not true, the family law judge may be persuaded that it is and give the woman what she wants.  

This is not to say that woman cannot be the aggressor in a domestic battery or domestic battery by strangulation case.  They can.  Sometimes women are arrested for domestic battery too.  I have represented women charged with domestic battery as well.  However, the guy, if the true victim, may not want to prosecute.  After all, we are talking about his ego here.  Is he a real man if his woman pushes him around?  That's why guys will rarely call the cops if they are the victims of domestic violence.  The cops are taking someone to jail.  They don't want to take the risk that it could be them, they get a criminal charge, have to spend money on a lawyer and they are embarrassed that a woman beat them up to boot.  

Hatred.  Some people just have hate in their hearts.  There's not much you can do about that.  They want to spew their hatred.  They may also be vindictive.  If I can't have him, nobody can.  If he wants to screw that other woman, let him.  I'll screw up his entire life.  

The reasons people lie are only limited by the imagination.  

What does the State of Florida have to prove to get a domestic battery conviction?

The government must prove beyond every reasonable doubt that:

  • you actually and intentionally touched or struck somebody and 

  • it was against their will and 

  • that you live with them or did before.

What kind of a sentence or penalties am I facing for domestic battery charge in Florida?

One year in jail and $1,000 fine maximum, a 1st degree misdemeanor in the State of Florida. 

What does the State of Florida have to prove to get a domestic battery by strangulation conviction?

The government must prove beyond every reasonable doubt that:

  • you knowingly and intentionally 

  • against the will of another 

  • did impede the normal breathing or circulation of the blood

  • of a family or household member or person you are dating

  • so as to create a risk of or cause great bodily harm

  • by applying pressure on the throat or neck or by blocking the nose or mouth of the person

What kind of a sentence or penalties am I facing for a domestic battery by strangulation conviction in Florida?

Five years in Florida state prison, $5,000 fine maximum, a third degree felony in the State of Florida.  Also, you will be a convicted felon for life, lose your right to vote, you cannot run for public office (there are plenty of criminals who are politicians though), and you cannot possess a firearm or ammunition.  You will also lose your Florida concealed weapons permit if you have one.

What defenses are there to a domestic battery charge and a domestic battery by strangulation charge in Florida?

Stand your ground

Self defense or Stand Your Ground defense to domestic battery or domestic battery by strangulation

There was a cartoon I saw in the New York Times that made fun of the Florida “Stand Your Ground” law.  It said -and I am paraphrasing - if you are standing on ground, you can shoot anybody you want.  Stand your ground defense is a valid defense in Florida to domestic battery and domestic battery by strangulation.  This is in addition to first degree murder, among other serious felony charges.  They key to whether self-defense is a successful defense depends, in part, on how reasonable the jury thinks the client's actions were. 

In the Florida jury instructions, it is called “justifiable use of non-deadly force”.  Generally, the client must have reasonably believed his conduct was necessary to defend himself against the alleged victim's imminent use of unlawful force against the client.  It could be against another person too – that brings in the defense of others.  Also, the use of unlawful force by the alleged victim must have appeared to the client to be ready to take place.  

There is no duty to retreat in Florida.  

If a client was not doing anything illegal and was attacked in a place they had a right to be – typically in domestic battery cases they happen in the home – there is no duty to retreat.  You can stand your ground and meet force with force, even deadly force if the client reasonably believed it was necessary to do so to prevent death or great bodily harm to himself or someone else or to prevent the commission of a forcible felony.  

The jury must judge the client by the facts and circumstances that surrounded him at the time the force was used.  No Monday morning quarterbacking is allowed.  The danger facing the client does not need to be actual.  It must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.   Based on appearances, the client must have actually believed that the danger was real.  

The jury should take into consideration how big - physically the client is and his capabilities versus how big the complaining witness is in determining whether the self-defense was reasonable.  

If the jury is left with a reasonable doubt on the issue of self-defense, they must find the client not guilty.  

What are some other valid defenses in Florida to domestic battery and domestic battery by strangulation?

Lack of intent

A valid defense is “I didn’t meant to hit anyone – it was an accident.” Without intent, there is no conviction.  The fancy Latin word is mens rea.  No mens rea, no conviction.

It didn't happen

If a client never hit the other person or try to strangle them, that is valid defense to domestic battery and/or domestic battery by strangulation in Florida.  

 How do I get a loved one out of jail?  What will a typical bond be for domestic battery and domestic battery by strangulation in Florida?

Once arrested for domestic battery or domestic battery by strangulation in Florida, the client will be held no bond until he sees a judge the next day.  A criminal lawyer, preferably a board certified criminal trial lawyer, can help get the client a reasonable bond.  What is reasonable?  Every case is different and depends on the facts, the criminal lawyers involved, and the judge. However, generally speaking, a $1,500 bond on a first time misdemeanor domestic battery charge is reasonable if the client has a local address.  If the criminal client lives out of county, it will likely double.  For a domestic battery by strangulation charge, the bond could be anywhere from $5,000 to $15,000 and up.  If a judge will not set a bond or set the bond too high on a domestic battery by strangulation charge, a criminal lawyer can file a motion to set bond or a motion to reduce bond to get a client out.  

Are there other defenses to domestic battery by strangulation?

Yes.  Defense of others and defense of property are valid defenses to domestic battery.  Defense of others in intertwined with the stand your ground defense.  The essence of the defense is that it must be reasonable.  What is reasonable?  Whatever the jury thinks.  That is why it is so important to hire a board certified criminal trial lawyer who has handled domestic battery by strangulation cases.  The defense of property is not used as much as the stand your ground defense.  

Other than jail, prison, fines, court costs, probation, etc, are there other collateral consequences to a domestic battery or domestic battery by strangulation conviction?

A conviction for a domestic battery can cause you to lose your job and affect your career for the rest of your life.  You will likely lose your good reputation.  You will lose your concealed weapons permit if you have one.  A domestic battery conviction in Florida can also keep you from getting a concealed weapons permit down the road. If you are convicted of domestic battery, you are not eligible to get your case sealed or expunged in Florida.  

Domestic battery wins

These are actual cases of real people I represented successfully at a jury trial in Florida.  I have handled at least 300-400 domestic battery cases.  There are no guarantees as to any outcome in any criminal case.  The only guarantee I give the clients is that I will do everything in my power, both legally and ethically, to win their case and treat them like I would like to be treated.  Every case is different.  However, many of the domestic battery cases I have handled here in West Palm Beach, Florida since 2001 have gotten dismissed or the clients have been acquitted at a jury trial.

DOMESTIC BATTERY – Not Guilty after Jury Trial Self Defense, Stand Your Ground.  The accuser’s side of the story: She told my client she was breaking up with him. They argued. He told her they were “going to die tonight.” This was a classic reference to the “if I can’t have you, nobody will have you” argument. He was driving fast and wouldn’t let her out of the car. She tried to get out. He went crazy when she said she was leaving him. She eventually got out and ran with her daughter. She called 911. He slammed the phone down to the ground. He hit her on the face by the right ear and her chest area. It is undisputed that she had redness and a scratch mark on her body when police arrived. At trial, the defense was self-defense. Yes, she had marks, but she was the aggressor. Domestic battery is a gender-biased crime. It seems the guy almost always goes to jail. However, the jury found him not guilty because of Florida's Stand Your Ground law – self defense.

DOMESTIC BATTERY – Not Guilty after Jury Trial based on Self-Defense – Stand Your Ground.

The client, a female -for a change- had an argument with her husband. She told him a hit man from Chicago was going to “snuff him out.” She also complained that he doesn’t have sex with her. Her son tried to intervene. She grabbed her son by the arm so she could continue to argue and threaten her husband. She caused abrasions to her son’s forearms. Initially, the client was arrested for child abuse on her son, a felony, and domestic battery on her husband. When the client grabbed her son, her husband intervened. The client hit and scratched her husband, injuring him. He had lacerations to his left cheek, neck, left forearm and hand. The client denied anything occurred. At trial, the defense was self-defense. Her husband grabbed her first and she fought back. You have the right to defend yourself. The jury agreed with our Stand Your Ground defense.

BATTERY – Not Guilty after Jury Trial – 10 minutes of deliberation.

The client was accused of kissing a woman in an elevator. According to the accuser, the client approached her in the elevator, told her she had beautiful blue eyes, asked her if she was married and said her husband was lucky. She went on to say that he grabbed her hand and kissed it, and then kissed her on her mouth. The client testified at trial that they did meet in the elevator. However, he denied ever touching or kissing the accuser. He also testified that she must be prejudice towards him because he is Hispanic and she is white. The jury deliberated for less than ten minutes. Not Guilty after jury trial.

DOMESTIC BATTERY – Not Guilty after Trial.

My client was the son of a famous jazz drummer who played with John Coltrane. I love jazz, so this was an honor to defend him. The allegation was he hit his wife on her right arm with a cane and knocked her into the counter. He did push her away in self-defense. She picked up a phone and tried to hit him with it. The theme of the case was this is a he said, she said, with no visible injuries. He used reasonable force to defend himself.

DOMESTIC BATTERY – Not Guilty after Jury Trial. 

The client allegedly hit his wife in the face. She called 911. She had redness on her cheek area. Photos were taken. The client was arrested right away without being able to tell his side of the story. After arrest, the police found a pill. He did not have a prescription for it. That felony charge was dropped. We went to trial on the battery charge. We argued lack of evidence. It was a he said-she said with virtually no visible injuries. The not guilty verdict was a relief for the client.

I have taught CLE (continuing legal education) seminars before.  In October, 2013, I spoke in Fort Lauderdale on a panel with a Miami judge and with another lawyer on evidentiary issues in domestic violence cases.  Here's my outline:

Top evidentiary issues in domestic violence cases

Grey Tesh

Board certified criminal trial lawyer

561-686-6886

  1. 1.  Whether the 911 call will be admitted, and if so, if it will be admitted in it's entirety or partially.

  2. 2.  Can the cop testify as to what the alleged victim told him/her?

 

Both questions deal with the excited utterance hearsay exception, Davis v. Washington, Crawford v. Washington, and State v. Lopez. 

When in doubt, say “Objection.  Hearsay, Crawford.” 

Evidence

90.803 Hearsay exceptions; availability of declarant immaterial.—The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

(2) EXCITED UTTERANCE.—A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Q- Does it violates the confrontation clause of the U.S. constitution?

Q- Is it testimonial hearsay?

Q- Is there an authentication issue?

Q- Was the alleged victim distraught, crying, bleeding, etc. when statement were made?

Q- Was there time for reflective thought?

Q- Primary purpose test – was it to meet an ongoing emergency or establish or prove past events potentially relevant to later criminal prosecution?

Q- Availability

Main cases

Davis v. Washington, 547 U.S. 813 (2006), the Court decided two cases in Davis.  Davis from Washington and Hammon v. Indiana, 546 U.S. 1088 (2006). The central issue in both cases was the admissibility of out-of-court statements from domestic battery victims. In Davis, the statement was to a 911 operator.  In Hammon, to a cop on scene. The Davis statement was nontestimonial.  The Hammon statement was testimonial. As a result, it should have been suppressed as violating the defendant’s sixth amendment right of confrontation.

State v. Lopez, 974 So. 2d 340 (Fla. 2008).  In Lopez, a statement made by the witness was an excited utterance.  But, the statement was inadmissible  because of the confrontation clause and Crawford.

Crawford v. Washington, 541 U.S. 36 (2004).  A judge must first determine whether the statement is testimonial.  If it is, the statement is not admissible unless 1) the witness is unavailable or unable to testify, and 2) the defendant had a previous opportunity to cross-examine the witness.

Testimonial or non-testimonial?  Ongoing emergency?

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Factors

  1. Is the alleged victim speaking of past or present events? 

  2. Is the speaker facing an on-going emergency?

  3. Is the cop or 911 operator asking questions to resolve the present emergency or to learn about a past event? 

  4. How formal are the questions?

Unavailability – prior deposition does not suffice

The Florida Supreme Court held that a discovery deposition does not qualify as a cross-examination of a witness. 

Procedure for excluding the statement 

Typically, the defense will file a motion in limine to exclude the 911 tape citing case law and how the factors apply.  The motion in limine to exclude the 911 tape is typically done pre-trial.  In rare instances, it may be done at trial but outside the presence of the jury.  That assumes that the judge you are in front of doesn't hold you in contempt of court for not bringing it in earlier.  

Police reports

Generally, police reports are not admissible in criminal cases.  See FL Stat. 90.803(8).  However, they could be used to impeach the officer's testimony.  That is applicable for a prior inconsistent statement.  It could also be used as impeachment by omission.

Other reports

Under Federal evidence code, 803(8)(c), public records that set forth “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible.  There is no Florida state counterpart in the evidence code.  It was intentionally omitted.  However, even in federal court, it is not admissible in criminal cases or when the sources of information or other circumstances indicate a lack of trustworthiness.  90.803(8) does not affect existing statutes that provide a privilege for reports of social investigations concerning  a child and the parents when child custody is at issue.  FL Stat. 61.20.  However, a lawyer may argue that it lacks trustworthiness.  

Statement of child victim FL Stat. 90.803(23)

(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.—

(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

  1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and

  2. The child either:

  • Testifies; or

  • Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.

(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

Character evidence 90.404

90.404 Character evidence; when admissible.—

(1) CHARACTER EVIDENCE GENERALLY.—Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:

(a) Character of accused.—Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.

(b) Character of victim.—

1. Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or

2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

(c) Character of witness.—Evidence of the character of a witness, as provided in ss. 90.608-90.610.

(2) OTHER CRIMES, WRONGS, OR ACTS.—

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

(b)1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

2. For the purposes of this paragraph, the term “child molestation” means conduct proscribed by s. 787.025(2)(c), s. 787.06(3)(g) and (h), s. 794.011, excluding s. 794.011(10), s. 794.05, s. 796.03, s. 796.035, s. 800.04, s. 827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1) when committed against a person 16 years of age or younger.

(c)1. In a criminal case in which the defendant is charged with a sexual offense, evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant.

2. For the purposes of this paragraph, the term “sexual offense” means conduct proscribed by s. 787.025(2)(c),s. 787.06(3)(b), (d), (f), (g), or (h), s. 794.011, excluding s. 794.011(10), s. 794.05, s. 796.03, s. 796.035, s. 825.1025(2)(b), s. 827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1).

(d)1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), paragraph (b), or paragraph (c), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

2. When the evidence is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. After the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received and that the defendant cannot be convicted for a charge not included in the indictment or information.

(3) Nothing in this section affects the admissibility of evidence under s. 90.610.

I steal from everyone.   Credit is due to Ehrhardt, Florida Evidence, State v. Lopez: Florida’s New “On-going Emergency” Rule by Jonathan Olson, Florida Bar Journal, March, 2009 Volume 83, No. 3.  

-Grey

561-686-6886