Domestic Violence

May 30, 2023

Will I Still be Prosecuted for Florida Domestic Violence if the Alleged Victim Won’t Cooperate?

By The Law Offices of Richard Ansara, P.A.

This is arguably one of the most common questions I get asked as a Fort Lauderdale domestic violence defense lawyer.

The short answer is: Probably.

That said, without the cooperation of the alleged victim, the foundation for the prosecution’s domestic violence case is undeniably weakened. If the alleged victim is actively helping the defense team, that can even further diminish the odds of a conviction. All of that could mean reduced charges or penalties.

However, it doesn’t automatically mean you’re out-of-the-legal-woods. Because it is such a common phenomenon for the alleged victim in these cases to refuse to cooperate with police or prosecutors, answer questions in deposition, or testify in court, the justice system has established a few workarounds (so-to-speak).

For one thing, while most assault and battery cases practically require the cooperation of a victim in order just to make an arrest, that’s not so in domestic violence situations. In fact, F.S. 741.29 states without no equivocation: “The decision to arrest or charge SHALL NOT require the consent of the victim or consideration of the relationship of the parties.” Furthermore, in section 4(b) of that same statute, the law holds that if there’s probable cause to believe two or more people committed a misdemeanor or felony, the officer has to make a determination about who was the primary aggressor. And then from there, the law says that “arrest is the preferred response only with respect to the primary aggressor,” (emphasis mine) and not with the other individual who acted reasonably to protect or defend themselves or someone else.

Secondly, as outlined by the U.S. Department of Justice, prosecutors have a literally playbook of strategies to employ when they’re prosecution domestic violence cases without a victim. Continue reading

April 28, 2023

Is Evidence of Prior Bad Acts Admissible in Florida Domestic Violence Cases?

By The Law Offices of Richard Ansara, P.A.

Defendants in Florida domestic violence cases should understand that while they still have the rights of most other criminal defendants, the justice system does deviate in its approach and practices in several respects with these cases. For example, you’re still presumed innocent until proven guilty, but if there is a protective order issued in conjunction with your arrest, you may be compelled to forfeit your right to carry firearms while that order remains in place. Another example is with regard to what type of evidence is allowed to be considered.

Prior bad acts of misconduct are generally not admissible in court to show that a defendant acted in conformity with misconduct on any occasion. In other words, you can’t just point to something else bad a person did – especially if they were never convicted of it – and assert or insinuate that the person’s bad character indicates a greater propensity to commit the crime in question. Just because you made a poor choice or acted badly in the past doesn’t necessarily mean you are guilty of the crime before the court.

There are some exceptions where it may be relevant to establish one’s motive, identity, mistake, intent, or common modus operandi. But in domestic violence cases, which tend to turn on the issue of credibility AND victims often refuse to testify, Florida courts are increasingly allowing evidence of prior bad acts of a defendant to be considered.

April 23, 2023

Can I Claim Self Defense in a Florida Domestic Violence Case?

By The Law Offices of Richard Ansara, P.A.

Recently, a man in Florida was arrested after allegedly shooting his live-in girlfriend four times in the back. Upon arrest for first-degree murder, he told police his actions were in self-defense.

How likely is it that one can be successful in a claim of self-defense in Florida domestic violence cases?

As our Fort Lauderdale domestic violence defense lawyers can explain, it may be possible to successfully argue self-defense in a domestic violence case in Florida, but it will depend on the circumstances.

Domestic violence, as defined in F.S. 741.28, is defined as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense that results in physical injury or death of one family or household member by another family or household member. (Note: Family or household member can mean not just spouses, but former spouses, those related by blood or marriage, people who presently reside together as if a family or once resided together as a family, and people who have a child in common regardless of whether they’ve ever lived together before.)

What Do I Need to Argue Self-Defense?

To argue self-defense in a domestic violence case, you will need to show that you acted in reasonable self-defense or defense of others. This means that you believed you or someone else was in imminent danger of harm and that your response was proportionate to the threat. Continue reading

March 6, 2023

Why Self-Defense is a Risky Claim in Broward Domestic Violence Cases

By The Law Offices of Richard Ansara, P.A.

Although society tends to view domestic violence as a one-sided crime, the reality is often a bit messier than that. It’s not unusual for both sides to be physical with each other. Yet law enforcement in Florida are statutorily urged to identify and arrest just one primary aggressor.

One can argue mutual combat or self-defense in a Broward domestic violence case – but these approaches are risky. As our Fort Lauderdale criminal defense lawyer can explain, self-defense is an affirmative defense – meaning you admit to the accused action, but argue it justified to avoid the legal affect it would otherwise have. Yes, the violent act occurred, but it was reasonably necessary in order to prevent the other person’s imminent use of unlawful force against themselves or someone else. According to F.S. 776.012, there is no duty to retreat. Further, as noted in F.S. 776.103, a person who is in their own home or vehicle is presumed by law to have a reasonable fear of imminent death or bodily harm if the alleged victim unlawfully entered or remained or attempted to remove another person against their will. Of course, in domestic situations, the question will be whether entry was unlawful – which it would not be if the residence is shared.

Florida has relatively strong self-defense statutes that protect one’s right to fight off an attacker in the face of immediate danger. However, courts expect solid evidence of that imminent threat. This is much more straightforward in situations where a stranger enters the home. In cases of domestic violence, self-defense is tougher to prove.

January 10, 2023

Big Penalties For Firearm Possession While Subject to Florida Domestic Violence Injunction

By The Law Offices of Richard Ansara, P.A.

Many Americans hold their Second Amendment rights dear. But if you’re convicted of a Florida domestic violence offense OR you have a final domestic violence/stalking injunction against you, the right to bear arms goes out the window. In fact, buying or possessing firearms or ammunition post conviction or while you are subject to a Florida domestic violence injunction can result in serious penalties – including years behind bars. In some cases, federal authorities may get involved – even if the underlying injunction or conviction was issued at the state level. It is imperative if you’re accused of a firearms violation while subject to an injunction that you seek immediate legal counsel from a qualified defense attorney.

Case-in-point: A U.S. District Court judge recently sentenced a man to more than 3 years federal prison for possessing firearms while subject to a Florida domestic violence injunction. According to the U.S. Attorney’s Office for the Middle District of Florida, the 44-year-old defendant was subject to a domestic violence injunction issued by a state judge in Jacksonville. As part of that injunction, he was forbidden from purchasing or possessing any firearms or ammunition while the order was in effect. This directive was expressly communicated to him in the injunction, which noted failure to abide this rule was a violation of both state and federal laws.

In the spring of 2020, the defendant reportedly signed an affidavit indicating he’d turned over all firearms to deputies with the Jacksonville County Sheriff’s Office. But then, federal authorities were tipped off that he had not actually turned over all firearms in his possession. A special agent with the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) began investigating, and noticed the defendant also had several firearm silencers that were nationally registered, but not surrendered to the sheriff’s office along with his other firearms and ammunition. The agent obtained a search warrant, which was executed in November 2021. At his residence, agents reportedly found seven guns (rifles, pistols, revolvers), silencers, and thousands of rounds of ammunition. Some of the guns and silencers were not properly registered.

His guilty plea for possession of firearms while subject to a domestic violence injunction was met with a 37-month prison sentence.

Florida & Federal Laws Against Firearm Possession in Violation of Domestic Violence Injunction

January 6, 2023

Exploring Mutual Combat Defense in Florida Domestic Violence Cases

By The Law Offices of Richard Ansara, P.A.

Questions about the mutual combat defense in Florida domestic violence cases arose recently when video surfaced of UFC President Dana White slapping his wife, Anne, at a night club in Mexico on New Year’s Eve – after she slapped him.

The TMZ video showed the couple in a verbal altercation that turned physical, with Dana pushing Anne’s hand, Anne slapping Dana in the face, and Dana then slapping Anne twice in her face. The two continued to physically struggle with each other until they were separated by third parties. Both released statements after the fact saying nothing like this had ever happened before, they’d both been drinking too much alcohol, and were eager to move on.

Some have called for Dana’s resignation from his prominent public position, while certain media outlets and individual anchors have been criticized for “being soft” or “muted” in their reporting of the incident. But whatever professional consequences there are for what happened, few people are talking about criminal penalties for either spouse. Although domestic violence is illegal in Mexico, it’s unlikely authorities there will issue a warrant and demand extradition of either party here, considering no one was seriously hurt and both parties were aggressive toward each other.

If this same incident had occurred in Florida – and with video evidence, no less – it’s unlikely neither party would walk away with zero consequences. Still, some have asked whether the mutual combat defense may apply.

Florida Law Expressly Discourages Dual Arrests for Domestic Violence

Although both people involved in a Florida domestic violence case can be arrested for the same incident, F.S. 741.29(4)(b) strongly discourages dual arrests (where both parties are arrested for domestic violence). Instead, as our Fort Lauderdale domestic violence defense lawyers can explain, officers who believe two or more persons may have committed a misdemeanor or felony act of domestic violence are urged to identify the primary aggressor. Even if both people hit each other, the officer is supposed to figure out (usually after the fact, based on he-said-she-said statements) who was more at-fault.

Arrest is the preferred response – for the “primary aggressor” only. If the other person “acts in a reasonable manner to protect or defend oneself or another family or household member from domestic violence,” they should not be arrested. Continue reading

December 28, 2022

When False Imprisonment Charge is Part of a Florida Domestic Violence Case

By The Law Offices of Richard Ansara, P.A.

Words like “kidnapping” or “false imprisonment” immediately conjure images of a person being bound and blindfolded, unable to escape a cagey stranger’s clutches. But more often, false imprisonment charges in Florida stem from incidents alleged domestic violence. Rather than tying someone up, false imprisonment looks more like forcing someone to stop and just listen to your side of the argument – something that can seem like a reasonable action, especially in the heat of a spirited disagreement. But it’s a felony, and should be taken seriously.

False imprisonment, as defined in F.S. 787.02, is when someone without the legal authority to do so restrains another person against their will. It’s similar to kidnapping, except the latter is more serious and involves moving another person against their will from one place to another while they are confined. Kidnapping also typically involves the intent to to commit another serious offense (i.e., extortion, sexual assault, battery, etc.).

False imprisonment is a third-degree felony, which carries penalties of a maximum penalty of 5 years in prison, 5 years of probation, and $5,000 in fines. It may also result in a permanent injunction (aka restraining order), which can have lasting implications for future employment opportunities, firearm rights, freedom of travel, etc. Kidnapping, meanwhile, is typically a first-degree felony, punishable by up to 30 years in prison. It can even be a life felony if carried out in conjunction with other serious offenses.

Penalties can be more significant for either charge if there are aggravating factors – particularly if it was carried out in conjunction with another serious felony, such as robbery, burglary, sexual assault, child abuse, human trafficking, or exploitation of a minor. Prior convictions can also exacerbate the seriousness of a false imprisonment charge.

What Do Prosecutors Have to Prove in a Florida False Imprisonment Case?

As our Fort Lauderdale defense lawyers can explain, the elements of a false imprisonment charge are:

Intentional imprisonment. That is, the defendant intentionally limited or restricted the other person’s freedom – confining, abducting, imprisoning, or restraining them. It doesn’t necessarily require physical restraint. Coercion, threats of violence, and tricking someone can satisfy this requirement as well.
Lack of consent. The person who is being held does not consent to it. It’s worth noting that children, individuals with cognitive disabilities or impairments, or those who are intoxicated are not able to consent.
No legal justification. If you’re a police officer or nurse, you may have the authority and legal justification to restrain someone against their will under certain circumstances. Same with shop owners or security personnel, but only under certain circumstances. Parents also may have legal justification for restraining minor children.

Examples of False Imprisonment in Domestic Violence Cases

False imprisonment charges sometimes come as a surprise do defendants, particularly if no one was hurt or physically restrained at all.

Some examples of scenarios of false imprisonment in domestic situations:

Grabbing another person and/or blocking an exit so that they cannot leave.
Holding something the other person values without their consent so that they can’t leave (i.e., wallet, keys, pet, child, etc.).
Drugging someone without their consent to restrict their movements.
Locking the car doors during an argument so that a passenger is unable to get out when they want to.
Threatening to hurt someone if they leave a certain location.
Locking someone in a room against their will.

Defenses to Florida False Imprisonment Charges

There are certain defenses to false imprisonment that can be made depending on the relationships between the parties. For example, merchants accused of false imprisonment may detain someone for a reasonable amount of time on suspicion of retail theft. They can only do so long enough to make a reasonable identification, inquire as to whether the person has possession of unpurchased merchandise, and inform a police officer. Similarly, parents and caregivers can defend against claims of false imprisonment where children under 17 are concerned where they are responsible for assuming control of the child’s welfare.

But in the context of domestic violence, some common defenses to false imprisonment charges in Florida: Continue reading

December 5, 2022

Fighting to Dissolve a Florida Domestic Violence Injunction – Even Decades Later

By The Law Offices of Richard Ansara, P.A.

A Florida domestic violence injunction has the potential to significantly impact the respondent for years to come. An injunction will show up on background checks, impacting your ability to obtain certain types of employment, travel freedoms, clearance for certain government jobs, and your right to own a firearm and ammunition. Any violations are considered criminal and can result in arrest and prosecution.

Once you have a permanent domestic violence injunction against you, it can last indefinitely – removable only if you petition the court and successfully prove a material change in circumstances that removes the claimant’s previously reasonable continuing fear of becoming a victim of domestic violence. Filing a motion with the court asking for dissolution of a Florida domestic violence injunction is best done with the assistance of an experienced domestic violence defense attorney.

As illustrated in the recent case of Bak v. Bak before Florida’s Fourth District Court of Appeals, fighting for dissolution of a domestic violence injunction can take years – decades, even. But the fact that it’s still worth it to do so even after all those years just goes to further underscore the importance of putting up a strong defense against having them issued in the first place.

The Bak case goes all the way back to the summer of 1999, when the former wife alleged her then-husband was abusive toward her. The judge granted a temporary injunction (which isn’t difficult to obtain in Florida, as it only requires testimony and evidence from the petitioner). A couple weeks later, a permanent injunction was filed, and the pair divorced shortly thereafter.

Thirteen years passed. In 2012, the husband asked the court to have the injunction dissolved, arguing that changed circumstances had made it equitable to do so. As noted by the court, success in this argument would require the moving party to show that the scenario underlying the injunction no longer exists so that continuation of the injunction no longer serves a valid purpose (as pointed out in the 2011 Fla. 1st DCA case of Alkhoury v. Alkhoury). The request was denied. Two years later, he again requested an end to the injunction – and was again denied. In that ruling, the judge cited the ex-wife’s reasonable continuing fear based on the fact that their minor child still lived at her home. Another five years passed. He filed a third request to have the Florida domestic violence injunction dissolved. Again, the trial court denied his request. But instead of accepting this decision as final, he appealed – and prevailed.

According to the 4th DCA, the former husband made a number of compelling arguments, including: Continue reading

November 17, 2022

5 Possible Defenses to Fort Lauderdale Domestic Violence Charges

By The Law Offices of Richard Ansara, P.A.

If you are arrested for domestic violence in Fort Lauderdale, there is no one-size-fits-all defense solution. That said, there are some strategies that are commonly used because they have proven effective in many cases.

When you hire a defense lawyer, you can generally trust they are going to carefully examine the police incident report, arrest affidavit, and any existing evidence to begin formulating their legal approach.

Some questions we may ask in our initial review of the facts:

November 10, 2022

Arrested for Miami Domestic Violence? What to Expect at Your First Appearance.

By The Law Offices of Richard Ansara, P.A.

A first appearance in court following a Miami domestic violence arrest can be nerve-wracking. It’s important to keep a cool head and educate yourself on what to expect – and what will be expected of you.

While many of the procedural aspects of a first appearance on a Florida domestic violence charge are similar to what one would expect in any other criminal matter of a similar severity, there are a few differences about which you’ll want to be aware.

Our Miami domestic violence defense lawyers will start though by outlining the purpose and basics of any first appearance in a Florida criminal court.

Purpose & Expectations of First Appearance

The main point of a first appearance – in Florida and most other states – is to:

Formally serve the defendant with the charges they are facing.
Inform the defendant of their right to an attorney. If you’re financially unable to afford a lawyer, the court can appoint one to you. (This only applies in cases where you’re potentially facing jail time – which is most domestic violence charges.)
Inform the defendant that they are not required to say anything, and that anything they do say can be used against them.
Inform the defendant of their right to communicate with counsel, friends, or family, and if needed, provide the reasonable means to do so.
Inform those facing felony charges of their right to a preliminary hearing.
Sets the defendant’s bond (if applicable) and pretrial release conditions.

Typically, it’s over in a space of about 15 minutes. It can go faster if the judge has determined prior to the first appearance whether the defendant can afford a lawyer and if not, whether one should be appointed by the court. Continue reading