The circumstances that revolve around a domestic dispute are often very complicated. Sometimes, in the heat of intense situations, mistakes or misunderstandings occur. Perhaps you have been involved in a situation like this, where the police arrive on the scene and a loved one or spouse gets arrested.
If you or someone you know gets arrested on the charge of domestic violence, you may be wondering if the victim is able to drop the charges.
Unfortunately, in the State of Florida, the victim of the crime of domestic violence cannot drop the criminal charges against the perpetrator. This article, however, will explain to you what you CAN do if you or a loved one gets arrested for domestic violence and would like to have the charges dropped.
As if the incident that resulted in an arrested for domestic violence were not stressful enough, we can imagine your situation has become considerably more stressful with criminal charges now in the mix.
Even if the circumstances that led to the arrest were just a misunderstanding, these charges cannot be immediately dropped upon request from the victim. Crimes can be classified into two different categories: state crimes and federal crimes. When a person commits a crime, he or she either commits the crime against the state they are living in or against the United States of America.
For example, if a man named John Smith commits domestic violence in the state of Florida, the ensuing court case would be called Florida v. Smith. Even if he committed the act against his wife, say “Deborah”, the case would not be called Deborah v. John.
Confusion in this matter comes from a misunderstanding regarding the difference between a civil case and a criminal case. In a civil case, one party sues another because of some sort of damage that they sustained. For instance, if an individual goes online and spreads lies about a business, that business can sue the individual for “defamation”, or for damaging their reputation. In a civil case, the victim (in this scenario being the business) can choose to “drop” the case or settle the matter outside of court.
In a criminal case, the perpetrator of the offense is seen to have committed a crime against society. The state (or country if in a federal offense) prosecutes the individual because the offender has violated one of the state’s rules that governs society.
This concept may seem detached and distant from your personal, firsthand experience in the situation. Nevertheless, if a loved one is arrested for committing domestic violence against you, you cannot choose to drop the charges because your loved one is suspected of breaking a Florida law which puts them in trouble with the government.
This does not mean that there is no hope, however. If this situation was indeed a misunderstanding, you can contact a criminal defense attorney to clear up the situation with state prosecutors.
After the police make an arrest, they send their investigation to the state prosecutor’s office. The developing criminal case then enters what is known as the “pre-filing” stage of a case. In this stage, the prosecutors review the facts of the case to determine how to proceed with the case. If the prosecutor finds that there is no compelling evidence that a crime took place, the prosecutor can drop the case completely.
If you or your loved one gets assigned a public defender for your case, the public defender most likely will not be taking proactive steps to fight the case in this stage. In general, a public defender will primarily fight a case in trial or during the pre-trial stage. A private criminal defense attorney, on the other hand, can beat the case before it is even filed. Click the link below to learn more about the benefits of hiring a private defense attorney.
Although the alleged victim in the domestic violence case does not have the power to drop the case immediately, there are still many steps you can take that may lead to the case getting dismissed.
One powerful tool at your disposal is a legal document you can file called a “Waiver of Prosecution”. In order to understand how this works, we must first cover the elements of a criminal case.
As mentioned earlier, if the police arrest John Smith for domestic violence, the ensuing court case would be called Florida v. Smith. Florida, in this case, is what is known as the “plaintiff”. A plaintiff is someone who brings a legal charge against someone else to court. A plaintiff does not necessarily have to be the victim of the crime, as is the case in domestic violence.
The alleged victim in a criminal case is the person who was reported to have been abused, neglected, or exploited but has not yet had their abuse proven in court yet. If you are the alleged victim in a domestic violence case, you can inform the prosecutor for the State of Florida that you do not want the crime allegedly committed against you to be prosecuted in court. This is done by filing a Waiver of Prosecution.
A Waiver of Prosecution is a notarized, sworn statement from the alleged victim saying that he or she would not like to press charges against the alleged perpetrator of the crime. Filing this document can certainly help the case but it is not guaranteed to make the prosecutor decide not to press charges.
The state attorney has the ultimate discretion on whether or not to move forward with a case. When filling a Waiver of Prosecution, the alleged victim must give specific reasons for why he or she wants the charges dropped as well as include the facts about the situation. Without the alleged victim’s testimony and cooperation, the state’s case against the alleged perpetrator can be severely weakened and the prosecutor may not have enough evidence to proceed.
On the other hand, a Waiver of Prosecution is an official legal document that must be completed with complete accuracy. It is important that the alleged victim consults an attorney when filling out the Waiver of Prosecution in order to make sure the document is completely accurate. Any errors give room for the prosecutor to accuse the alleged victim of perjury or filing a false police report. Consulting a defense attorney when crafting the Waiver of Prosecution is key in making sure the affidavit helps instead of hurts the case.
In many scenarios, the alleged perpetrator is given a “no contact order” by a judge in a domestic violence case. The order is put in place in order to protect the alleged victim from further harm. In cases where the situation was simply a misunderstanding, the contact order can families to be separated for long periods of time or else face severe penalties under the law.
A defense attorney can be an intermediary between the alleged victim and the alleged perpetrator. The defense attorney can work to get both parties to reach their desired outcome. In many cases, the desired outcome is to drop the criminal charges and allow the family to restore contact with one another.
Regardless of the circumstances that revolve around your personal situation, a no contact order has serious consequences when violated. A simple text message is enough to violate the order. If both parties want to change the terms of a no contact order, an attorney can file a motion to modify the conditions of it.
In an ideal scenario, a domestic violence defense attorney would be hired before the first hearing of a domestic violence case so that the attorney can petition to allow contact between the alleged victim and the alleged perpetrator. This would prevent a no contact order from ever being put in place.
It is very unlikely that a prosecutor will continue to pursue a case that does not have sufficient evidence to prove that the defendant has committed a crime. Similarly, a prosecutor will most likely not want to file charges against an individual that is innocent. In this scenario, it is up to the defense attorney to provide evidence and proof to the prosecutor that the defendant is not guilty of a crime.
Even if an injury did occur in the situation that resulted in the arrest for domestic violence, a defense attorney still has many tools at his or her disposal to mitigate the severity of the case. For instance, the defense attorney can make a deal with the prosecutor where the state drops the criminal charges once the defendant completes an anger management course or attends a set amount of therapy sessions.
There are many options that an honest and ethical defense attorney has in the early stages of a criminal case. The sooner you decide to retain legal counsel in your situation, the better your chances become to achieve a favorable outcome in the matter.
The circumstances that underlie a domestic violence case often are very complicated and rarely ever black and white. Sometimes a couple in a relationship may require therapy or space from one another, but many times they do not desire the weight of a criminal case. Someone’s way of living can be completely put in jeopardy because of situations like this and the attorneys at the Rossen Law Firm work to help good people when bad things happen to them so that they can achieve their best futures.
Rossen Law Firm’s legal team understands what’s at stake when you’re charged with a crime in South Florida. We’re committed to defending you and protecting your rights. Our legal team is ready to create a customized strategy for your case to fight for the best possible outcome. We handle Criminal, DUI, Federal, Domestic Violence, Marchman Act & Baker Act cases, and more.
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