Domestic Violence

November 5, 2022

Can I Argue Self-Defense in a South Florida Domestic Violence Case?

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

Florida has strong and well-established “stand your ground” self-defense laws. But can you successfully argue self-defense in a South Florida domestic violence case?

The short answer is: Yes – but you better have solid evidence.

As our Broward County domestic violence defense lawyers can explain, there are a number of state laws pertaining to self-defense and how it should be applied in Florida criminal cases. Most of these can be found in Chapter 776 of Florida Statutes, which outlines the criteria for Justifiable Use of Force.

Among these:

F.S. 776.102, Use or threatened use of force in defense of person. This statute holds that a person can be justified in threatening to use force or actually doing so against someone else when he/she reasonably believes that doing so is necessary to defend themselves against the other person’s unlawful use of force. However, they can’t use deadly force for this purpose – unless he/she reasonably believes that doing so is needed to halt imminent risk of death or serious injury to themself or someone else. In both cases, there is no duty to retreat before using or threatening to use such force.
F.S. 776.013, Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm. This provision states a person who is lawfully inside a dwelling or residence doesn’t have a responsibility to retreat if they feel threatened in that space. They can stand their ground and use force or threaten to use force. As for the degree of force, it can only be deadly if the person has a reasonable belief that they must do so in order to prevent imminent death or great bodily harm to themselves or another person OR to prevent the imminent commission of a forcible felony.
F.S. 776.031, Use or threatened use of force in defense of property. A person can use or threaten to use force against someone else when and to the extent that individual believes doing so is necessary to prevent or terminate another person’s trespassing on personal property or criminal or tortious interference with personal property in their possession (or in possession of an immediate family/household member). Force can only be deadly if one reasonably believes using it is needed to stop the imminent commission of a forcible felony. (Forcible felonies are those that involve the use of physical force against another human being.)

If you’ve used justifiable force, then you would not be subject to prosecution. However, there is another provision worthy of consideration if the underlying circumstances involved an allegation of domestic violence:

F.S. 776.041, use or threatened use of force by aggressor. Use of force won’t be considered justifiable if the person accused was either attempting to commit, committing, or escaping after the commission of a forcible felony OR that individual initially provoked the use or threatened use of force against themselves. (There are exceptions to the latter half if the use of force was so great they believed themselves in danger of imminent death or serious injury or they’d exhausted every other reasonable means to escape such danger OR they tried in good faith to withdraw from physical contact and indicates clearly their desire to withdraw/terminate use or threatened use of force.)

Risks of a Self-Defense Argument in a Florida Domestic Violence Case

October 28, 2022

Understanding Florida’s Domestic Violence Misdemeanor Diversion Program

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

When someone is facing a South Florida misdemeanor domestic violence charge, it’s worth exploring whether they qualify for a diversion program that would allow them to avoid a conviction.

As our Broward domestic violence defense lawyers can explain, not every defendant is going to qualify and it may not be the best strategic move for every case. But it’s important to discuss the possibility with your attorney.

What is a Domestic Violence Diversion Program?

A diversion program is a type of pre-trial intervention that essentially diverts the criminal case away from the usual track (which can end in conviction, jail, and fines) and instead allows qualifying defendants to complete educational courses and/or service requirements. When the program requirements are successfully met, the charges in the criminal case get dropped and the case is dismissed.

Some of the offenses that disqualify a defendant from a DV diversion program include:

Battery in which the defendant is accused of using substantial force to slap, punch, kick, or push an alleged victim to the ground.
Any battery that involves “degrading acts,” such as urinating or spitting on the alleged victim.
Any battery that involves alleged strangulation or choking of the victim.
Violations of domestic violence injunctions.

In general, domestic violence diversion program offenses are those involving minor intentional touching but don’t result in serious physical injury. If a defendant has a prior conviction or arrest for a felony as an adult, more than one misdemeanor adult conviction, or any prior domestic violence arrests, convictions, or pending charges, he or she will be ineligible for the domestic violence diversion program. No one is allowed to enter the diversion program more than once in their life.

It’s important to note that domestic violence charges – even those that are dropped due to a diversion program – generally cannot be sealed or expunged. Evidence of the arrest still shows up on your record. That’s why if there is a decent chance that your Broward domestic violence defense lawyer can successfully fight the charges against you, that may be in your best interests. But diversion programs can be an excellent alternative when there is a fair amount of evidence against you in a first-time, misdemeanor Florida domestic violence charge.

What to Expect in a Florida Domestic Violence Diversion Program

October 21, 2022

What to Know About Posting Bond in Florida Domestic Violence Cases

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

If you’re arrested for domestic violence in Florida, it’s important to understand the pretrial process for such offenses is different than it is for other alleged crimes. One of the biggest differences is that defendants arrested for Florida domestic violence will not be able to post bail immediately after being booked into jail.

It’s important if you’re arrested for domestic violence to understand that talking to police or other investigators about what happened before you’ve spoken to a defense lawyer won’t speed up this process – and may well hurt your case.

Domestic violence is defined in F.S. 741.28 as the commission of certain crimes against a family or household member. Such crimes include assault, battery, sexual assault or sexual battery, stalking, kidnapping, false imprisonment, or any other offense that causes the physical injury or death of a family or household member. Someone is considered a “family or household member” if they are spouses, former spouses, related to one another by blood or marriage, living together as if they are a family (or used to), and those who share a child – regardless of whether they’ve ever married or lived together.

Mandatory Court Appearances in Florida Domestic Violence Cases Prior to Bond

There are some crimes for which you can be arrested, booked, post bail, and walk out of jail in a matter of a few hours. But that is not the case for alleged crimes of domestic violence.

As our Broward domestic violence defense lawyers can explain, Florida statute requires the defendant to appear in court before a judge before they can post bail and be released. That initial hearing – called a first appearance – must be held within 24 hours of an arrest. During the hearing, the prosecutor is required to come prepared with:

Defendant’s prior arrest record, including any previous domestic violence offenses – whether with the same alleged victim or someone else.
Any current or former injunctions for protection filed against the defendant.
Any previous walk-in complaints of domestic violence against the defendant.

That information is presented to the judge for consideration of whether to allow bail and if so, how high to set it. In addition to the defendant’s criminal history, the court will consider the details of the pending charge and whether the safety of the alleged victim or others may be compromised by defendant’s release on bail.

What to Expect at Your First Appearance Hearing

October 12, 2022

Fort Lauderdale Criminal Defense Lawyer Explains the Three Levels of Police Encounters

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

When Florida law enforcement officers interact with the public in the course of their duties, there are three levels of interaction that will dictate how any search or seizure in the course of that interaction will be judged from a legal perspective.

These three levels of interaction are:

Consensual encounters.
Detention or investigative stops.
Arrests.

Within each of these interactions, the person involved has constitutionally-protected rights. But those constitutional protections are different at each level. If those rights are violated, then it is more likely that your Fort Lauderdale criminal defense lawyer will have some success in convincing the court to suppress evidence gleaned in that interaction. Here, we review the rights and protections at each level.

Consensual Encounters

Consensual encounters with police in Florida don’t require officers to establish any sort of evidence of wrongdoing. There’s no bright line rule for when an encounter is consensual vs. investigative, but we can say that a key aspect of consensual police encounters is that the person at the center of the interaction is free to leave.

The lines can get a little fuzzy because courts have held that law enforcement is allowed during a consensual encounter to ask you questions, ask to see your ID, might even ask to search your vehicle. If they say or imply that complying with their requests is mandatory, then it’s no longer a consensual encounter. However, police encounters can often be intimidating and people sometimes feel they don’t have much of a choice – even when they do. If you consent to answer questions or to be searched during a consensual encounter, it can be difficult to challenge any evidence gleaned from that – because you freely agreed to it. You’re often better off keeping your answers brief, politely declining any requests to search, and asking point blank whether you’re free to go.

In determining whether a police interaction began with a consensual encounter (as opposed to an investigative stop), the U.S. Supreme Court ruled in the 1980 case of U.S. v. Mendenhall that courts should examine the totality of circumstances – and specifically, whether a reasonable person believed themselves free to go. Continue reading

October 7, 2022

Arrested for Fort Lauderdale Domestic Violence While on Probation?

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

If you are arrested on a Fort Lauderdale domestic violence charge while on probation, it may result in harsher penalties – and the need for a strong defense strategy.

Probation is a form of alternative punishment that allows individuals convicted of an offense to fulfill the terms of a sentence while outside prison or jail. The oversight of a probation office or officer is supposed to serve the function of public safety, while allowing the offender the opportunity to work and contribute to society – in the hopes of rehabilitation and possibly victim restoration. The conditions of probation vary depending on the underlying offense, criminal history of the individual, and the judge who handed down the sentence. However, most terms of probation require the defendant to abide by all local, state, and federal laws.

When a new offense is committed by someone on probation, that person not only faces potential consequences for the new offense, but additional penalties for a probation violation.

Florida’s probation violation statute is F.S. 948.06.

While a criminal conviction may require proof beyond a reasonable doubt, probation violations aren’t held to that same proof burden standard. The probation officer/prosecutor only needs to show you violated the terms of your probation by a proof standard of “a preponderance of the evidence.” In layman’s terms, that means you more likely than not violated the probation rules.

As our Broward domestic violence defense lawyers can explain, you might evade a criminal conviction for the new offense but still be found to have violated your probation. And in that situation, you might be given the maximum penalty for the original underlying offense (the one for which you were on probation in the first place).

This is why it is so important if you’re accused of a probation violation to seek immediate counsel from a criminal defense attorney. Continue reading

September 28, 2022

Florida Court Weighs Domestic Violence Battery by Strangulation Case

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

In Florida, domestic violence battery by strangulation is codified in F.S. 784.041. It’s a very serious felony charge, with those convicted facing years in prison, thousands in fines, and extensive probationary requirements.

Recently, Florida’s 4th District Court of Appeal considered a case of domestic violence battery by strangulation. The defendant argued state prosecutors erred in denying his motion for acquittal because the state failed to prove that he impeded the victim’s normal breathing and created a risk of great bodily harm with application of pressure to the victim’s throat.

The appellate court rejected this argument in Dennis v. Florida, and thus affirmed the trial court’s guilty verdict.

To understand what goes into a decision like this, we must first look at the statute to know exactly how Florida defines domestic violence battery by strangulation.

As our Fort Lauderdale domestic violence defense lawyers can explain, to secure a conviction on this charge, prosecutors must prove all of the following:

A person knowingly, intentionally, and against the while of another impedes the other person’s normal breathing or circulation of blood.
This act created a risk of or caused great bodily harm by applying pressure to the throat or neck of the other person OR by blocking the mouth or nose of the other person.
The alleged victim in the case was a family or household member of the defendant, as defined in F.S. 741.28(3), or was involved in a dating relationship, defined as a significant relationship of a romantic or intimate nature.

This crime in Florida is a third-degree felony, meaning it carries a maximum five years in prison, five years probation, and $5,000 fine.

In this case, the pair were boyfriend-girlfriend and they began fighting after the girlfriend shared a dream she’d had the night before in which she cheated on him. This led to an on-off, weekend-long spat between the two. Continue reading

September 20, 2022

Arrested on Vacation in Fort Lauderdale? We Can Help.

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

Fort Lauderdale is a prime destination for tourists from across the country and around the world. It’s estimated more than 120 million people flock to Florida each year – many making their way to the Southeast coast. Unfortunately, if you’re arrested on vacation in Fort Lauderdale (most often for DUI, domestic violence, drunk and disorderly, solicitation, and drug possession), your good time can quickly morph into a legal nightmare. Our Fort Lauderdale criminal defense lawyers can help.

How you proceed will depend to some extent on the severity of the crime and the specifics of the case. Chances are, if you’re arrested for a misdemeanor, you will not be held for any extended period of time in jail, but you may be expected to return. It is possible that a lawyer can resolve your case for you without you having to return, but again, it will depend on the exact circumstances. It’s also possible that the consequences of any conviction will follow you in your own district, particularly if there are any supervised release requirements.

If you’re arrested for a felony (which are more serious charges), you may expect your time in jail to be a bit longer, and your legal fees, court costs, and penalties to be more substantial.

It is important to keep in mind that simply going home will not make the charge go away. It is critical to consult with an experienced, local Fort Lauderdale criminal defense lawyer who will offer sound legal advise, ensure your rights are protected, and fight for the best possible outcome.

Some factors to consider following a Fort Lauderdale arrest on vacation: Continue reading

September 8, 2022

Can State Press Charges for Fort Lauderdale Domestic Violence When Victim Refuses?

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

In any Florida criminal case, the testimony of the alleged victim (if available) plays an important role in prosecution. That said, an alleged victim’s refusal to cooperate with police or prosecutors won’t necessarily spell an end for the case – particularly when we’re talking about matters of domestic violence. In these types of criminal cases, victims cannot simply “drop” a case or “refuse to press charges.” Technically, the crime is against the state. It is up to the investigating law enforcement agency and ultimately the state prosecutor’s office to ascertain whether to proceed.

Of course, an alleged victim’s refusal to cooperate can create some evidentiary headaches for investigators, and might lead them to conclude there is not enough evidence to continue. But as Fort Lauderdale domestic violence defense lawyers, we tend to advise clients not to count on this.

Other avenues for evidence in a Florida domestic violence case besides a victim’s own statements may include:

Photos or videos of the incident, scene, or injuries sustained by those involved.
Testimony of third parties who may have witnessed the incident.
911 calls.
Electronic communications. This can include social media messages, photos/videos, texts, emails, voice recordings, etc. Always assume that whatever is communicated in these forums may be subject to subpoena and presented as evidence in court.
Your own words. Too many defendants in domestic violence cases think they can talk their way out of charges. They almost never can. Talking to police or prosecutors without your lawyer present is rarely if ever a good idea.
Excited utterances. Courts generally do not allow hearsay into evidence. Hearsay is testimony from an under-oath witness who is reciting an out-of-court statement made by another person, the content of which is offered as proof of the truth of what’s being asserted. That typically includes officers who might attest to statements made to them by an alleged victim about what happened – something not personally witnessed by officers. An exception to this is an excited utterance. This is a statement that concerns a startling event, made by a declarant while that individual is still under stress from that event. Statements made by an alleged victim immediately after a reported incident of domestic violence may count as an excited utterance – particularly if the alleged victim is no longer cooperating with investigators.
Statements made for medical diagnosis or treatment. This is another hearsay exception. If an alleged victim makes a statement for or reasonably pertaining to a medical diagnosis, treatment, or that describes their medical history, this statement may be allowed to be presented at court.

When law enforcement officers arrive on scene for a domestic violence call, they will ask questions, take notes, maybe take photos or videos. All they need to make an arrest is probable cause that a crime was committed. That is a low proof burden, especially when you consider that a simple assault charge under F.S. 784.011 doesn’t even require proof a defendant laid a finger on the alleged victim. All that must be established is the defendant made an intentional, unlawful threat by word or act to do violence on another person AND that individual had the ability to carry out that threat, resulting in the alleged victim’s well-founded fear that violence may be imminent. It’s a second-degree misdemeanor. (More significant charges like battery will be filed if there is evidence one person touched the other or caused injury.)

As longtime Fort Lauderdale domestic violence lawyers, we can tell you from experience that police officers on the whole loathe domestic violence calls. They can be volatile and dangerous and getting to the truth of the matter in the middle of a lot of heated “he-said-she-said” is a bit of a nightmare for investigators. But even if no one has been struck, officers don’t want to be called back to the same residence on the same shift. And they don’t want to risk anyone getting seriously hurt. So it’s not uncommon for them simply to make an arrest on thin evidence of assault just to get the parties to separate and cool down for a bit. That may not be pleasant for the accused, but take heart in the fact that an arrest alone almost never means the matter is open-and-shut. It’s probable you may have grounds for a strong defense – even if the alleged victim is cooperating with authorities. Continue reading

September 2, 2022

Broward Defense Lawyer Helps Tackle False Allegations in Florida Temporary Injunction Cases

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

As a Broward defense lawyer with a heavy focus on domestic violence cases, pushing back against Florida temporary injunctions is a regular part of our wheelhouse.

It often comes as a surprise to clients that in the Sunshine state, temporary injunctions for protection (also commonly known as “restraining orders”) can be pursued – and obtained – solely based on the unilateral accusations of the person seeking one. That means the claims are one-sided, and one can be entered against you before you even have your day in court. In fact, the court has 15 days to set a hearing where your side will be taken into account. Before that deadline, there is no requirement that you be apprised of the allegations against you or that you be given the right to cross-examine any witnesses about what happened. In some cases, courts may even extend a temporary injunction beyond those 15 days for “good reason.”

Despite this, temporary injunctions are part of public record. That means anyone can look them up and review them: Employers, landlords, ex-spouses, airlines, firearm retailers, etc. Though they might not hold as much weight as permanent injunctions, temporary injunctions can absolutely impact your ability to land (or keep) certain employment, access certain housing options, your ability to travel, your ability to carry a firearm, and your pending divorce/child custody case.

Because of the severity of these consequences – now and well into the future – it is imperative that anyone fighting a Florida temporary injunction hire a criminal defense lawyer with extensive experience specifically in the area of domestic violence law.

Temporary Injunction Procedure

As our Broward domestic violence defense lawyers can explain, the burden of proof for temporary injunctions in Florida is much lower than what is required to establish guilt in a criminal case. Continue reading

August 30, 2022

Types of Evidence Used in Broward Domestic Violence Cases

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

If you are arrested in a Broward domestic violence case, you may be wondering what evidence the state might use against you.

As experienced Fort Lauderdale criminal defense attorneys, we know at the outset exactly the sorts of things prosecutors are going to be deep diving for to make their case.

Just like in any Florida criminal case, the burden of proof rests with the prosecution to prove in court that a crime was committed and that the accused is guilty of it. They are held to the highest standard of proof, which is beyond a reasonable doubt. Despite this, they have a fairly good conviction rate for domestic violence cases. According to one study by the Bureau of Justice Statistics, domestic violence sexual assault defendants are more likely to be prosecuted (89 percent) than non-domestic sexual assault defendants (73 percent). Domestic violence defendants were as likely to be prosecuted (66 percent) as non-domestic assault defendants (67 percent), but their conviction rates are substantially higher (87 percent versus 78 percent).

Elements of a Florida Domestic Violence Charge

If you’re facing a charges under F.S. 784.03 (battery and felony battery) what the prosecution basically has to show is:

The defendant actually and intentionally struck the other person against that person’s will.
The defendant intentionally caused bodily harm to another person.

If the prosecution is trying to prove a domestic violence crime specifically under F.S. 741.28, they will need to show the basic elements of the underlying crime (which can include assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense relating to physical injury) AND that the target was a family or household member. A family or household member can mean a spouse, people related to you by blood or marriage, people who reside together as if they are a family (or who have in the past), or someone with whom you share a child. Unless you share a child together, domestic violence can only be established if the defendant and accuser currently live together as a family or had in the past. Continue reading