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Domestic Violence Assault

When it comes to Florida domestic violence, assault - as outlined in F.S. 784.011 - is one of the most commonly-filed charges.

Domestic violence can encompass a broad range of acts, not limited to assault. It may include battery, kidnapping/false imprisonment, stalking, cyber harassment, etc. What establishes these offenses as falling under the umbrella of "domestic violence" is the relationship between the parties involved. They must be family or household members who live together or used to live together as a family OR two people who share a child.

According to the U.S. Department of Justice, domestic-violence-related calls are the single largest category of calls received by law enforcement across the country, accounting for anywhere between 15 and 50 percent of civilian requests for police aid.

Two-thirds of those calls involved an assault, which is when a person is threatened with a physical attack or death. Only about half of the calls for assault involved actual injury. As your South Florida criminal defense lawyer can explain to you, it is not necessary that anyone was injured - or even touched - for prosecutors to prevail in a domestic violence assault case.

Nearly 8 in 10 domestic violence charges are for simple assault. Defendants are overwhelmingly male and most accusers are female. Certainly though, there are outliers.

In recent years, the public pressure to treat domestic violence with a greater degree of seriousness means that if police respond to a call of this nature, they almost always make an arrest. Also while you are awaiting trial, the court can issue a no-contact order as a condition for pretrial release, pursuant to F.S. 903.047(1)(b).

But bear in mind: While an arrest undoubtedly may have some serious implications, it's not the same as a conviction. You should not treat that outcome as a foregone conclusion, as domestic violence assault cases are often highly defensible - if you have a good lawyer. If you are arrested on Fort Lauderdale domestic violence assault charges, do not speak to police, prosecutors, or anyone else without first discussing your case with an experienced criminal defense lawyer. Under no circumstance should you plead guilty or no contest without mulling over your legal options with a skilled attorney.

Elements of Florida Domestic Violence Assault Charges

As noted by Florida Bar, prosecutors seeking to establish the crime of domestic violence assault must prove four elements beyond a reasonable doubt:

  • The defendant and accuser are family or household members, as defined in S. 741.28. This means they are spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if part of a family, and persons who share a child together - regardless of whether they've been married. (Romantic partners with whom you do not or have never lived and do not share a child in common are not considered "family or household members" for purposes of the statute.)
  • The defendant intentionally and unlawfully threatened - either by word or act - to do violence to the accuser.
  • At the time, the defendant appeared to have the ability to carry out that threat.
  • The defendant's words or actions created in the mind of the alleged victim a well-founded fear that the violence was about to take place.

Countering these allegations requires a ready defense team. As Broward domestic violence defense lawyers, we're prepared to carefully and swiftly examine the facts and nuanced details of the case, formulate arguments showcasing the state's weak arguments or lack of evidence, advise our clients of options and likely outcomes, and fight for their rights and best interests.

Penalties for Florida Domestic Violence Assault

While events leading to a domestic violence assault charge often unfold in mere minutes, the practical implications on one's life can be profound, stretching for many years to come. There is the possibility of jail time, fines, probation, and batterer's intervention classes (at the accused's expense). But beyond that, a domestic violence assault conviction can impact your ability to land certain jobs or work in certain professional fields. It can limit your residency options, your divorce, child custody, and parenting time arrangements, and even your Second Amendment right to bear arms.

In most cases, Florida domestic violence assault will be charged as a second-degree misdemeanor. Some mistakenly presume that "misdemeanor" translates to "minor," but these charges can absolutely have a major impact on your life. A second-degree misdemeanor is punishable by up to 60 days in jail and a $500 fine. That's in addition to court costs and attorney's fees, and whatever else you may need to pay for intervention classes and restitution.

Charges and penalties may be enhanced if:

  • You used a deadly weapon, such as a firearm or knife, in the commission of this crime.
  • The assault occurred in the commission of a felony (or you had intent to commit a felony).
  • You have a prior criminal record, particularly if those prior offenses included anything violent.
  • You have prior convictions for domestic violence assault.
  • You were in violation of an existing protection order.

These factors have the potential to bump up a Florida domestic violence assault charge from a second-degree misdemeanor to either a first-degree misdemeanor or a third-degree felony - either of which will result in stiffer fines and more jail time.

It's worth noting that specifically in domestic violence cases, admission of prior acts of violence may become an issue. As your Fort Lauderdale defense lawyer can explain, previous acts of misconduct usually aren't admissible in criminal court to show that a given act was part of a pattern - per F.S. 90.404(2). However, there are exceptions if the court deems it relevant to show motive, intent, mistake, identity, and common scheme or plan. Florida domestic violence cases often turn on credibility. Therefore, some courts will often allow evidence of prior acts/admission of prior acts when they involve either the same victim or the same/similar crime. If this pertains to your situation, you will face an even steeper uphill battle to win your case.

It's imperative if you're facing a domestic violence assault charge to consult with a defense attorney with ample experience in this particular area of the law.

If you have been charged with domestic violence assault in South Florida, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.

Domestic Violence Aggravated Assault (F.S. 784.021)

Under Florida law, domestic violence aggravated assault, as codified in F.S. 784.021, is a heightened type of assault charge that involves either the use of a deadly weapon OR an intent to commit a felony.

According to the Florida Statistical Analysis Center, aggravated assaults account for 9 percent of Florida's index crimes, with more than 710,000 reported in a recent 10-year period. More than 330,000 aggravated assault arrests were made during that time, with 11 percent of defendants being juveniles. Nearly 170,000 of these incidents involved the use of a firearm - increasing by roughly 10 percent during that period. The other most common deadly weapon used was a knife/cutting instrument. (Other items that may be considered deadly weapons are rocks, vehicles, broken bottles, baseball bats, etc.) While overall aggravated assault incidents fell during that recent decade, the percentage that involved matters of domestic violence actually increased, from 24 percent to 28 percent.

Proving Florida Aggravated Assault Domestic Violence

For a prosecutor to prove aggravated assault, they need top show that:

  • The defendant intentionally and illegally threatened to commit violence against the accuser. This could have been done either in word or deed.
  • The defendant had the apparent ability to carry out the threat at the time it was made.
  • The defendant's alleged threat resulted in the accuser's well-founded fear that violence was imminent.
  • The assault was carried out either with the conscious, fully-formed intent to commit a felony OR with the aid of a deadly weapon.

The domestic violence element of the offense is established pursuant to F.S. 741.28. These can be spouses/former spouses, people related by blood or marriage, or those who lived together in the past as a family. The law requires that they either currently or previously lived in the same home. There is an exception if the two involved share a child together, in which case the fact of whether they ever lived together is irrelevant.

As outlined by Florida's 1st District Court of Appeal in the 1985 case of Larkins v. Florida, the state doesn't have to prove the alleged victim was physically harmed or that the defendant actually intended to hurt the victim to secure a conviction for aggravated assault. What they do need to prove is the intention to threaten violence.

To show an intent to commit a felony, prosecutors need to show the assault happened while the defendant was committing or intended to commit a felony. Typically in domestic violence aggravated assaults, the felony is something like battery, sexual assault, aggravated stalking, or kidnapping/false imprisonment.

Proving intent can be done with either direct or circumstantial evidence. For example, if the defendant makes a statement before witnesses or in electronic communications indicating felonious intent, that can be used as evidence.

Penalties for Florida Domestic Violence Aggravated Assault

As our Fort Lauderdale domestic violence defense lawyers can explain, while simple assault is a misdemeanor, aggravated assault is a felony. Penalties for aggravated assault are much harsher than for the basic offense of assault. Some domestic violence aggravated assault convicts will face minimum mandatory prison sentences.

Aggravated assault is a third-degree felony in Florida, meaning it is punishable by:

  • Maximum 5 years in prison.
  • Maximum $5,000 fine.
  • Some combination of both.

Penalties for domestic violence aggravated assault are going to be even more serious if the defendant is a habitual felony offender, as outlined in F.S. 775.084. This classification will apply if the defendant has been previously convicted of any combination of two or more qualifying felonies in the state, with commission occurring while the defendant was serving time in prison OR on state-imposed supervision as a result of the prior conviction OR within the last five years. Qualifying prior offenses include aggravated assault with a deadly weapon, aggravated child abuse, kidnapping, sexual battery, aggravated battery, and aggravated stalking.

Depending on the circumstances, a defendant in this situation could actually be facing up to 20 years in prison. This is not the sort of case you want to try to "wing it" with a public defender. An investment in a top tier criminal defense attorney is an investment in your future.

Possible Defenses in a Domestic Violence Aggravated Assault

Because prosecutors don't need to show that the alleged victim was harmed - or even touched - to prove aggravated assault, the defense team might be at something of a disadvantage. Here again, this is why it's in your best interests to hire a defense lawyer with particular experience not only in defending violent crimes, but specifically those involving domestic violence.

The absence of physical injuries, however, might also open the door for defense lawyers to offer up factual disputes on how the incident unfolded, the credibility of the alleged victim, and the veracity of the threat.

As for specific defenses to a charge of domestic violence aggravated assault, these might include:

  • Self defense. This is a justified use of force in defense of yourself. You might also assert justified defense of others and (maybe) property.
  • False allegations by the alleged victim. Here, we might look carefully at whether there are factual holes in the accuser's testimony. We will also be closely examining the credibility of the accuser. It's worth noting too that accusers in domestic violence cases often recant their testimony (once they're outside the heat-of-the-moment), and this can be used to underscore an alleged victim's lack of credibility.
  • Inability to carry out the threat. This is a highly fact-specific defense, but if you had no reasonable means of carrying out a threat when it was allegedly made, the aggravated assault charge isn't going to hold up.
  • Instrument in question wasn't a deadly weapon. There are a great many instruments that can be considered a deadly weapon, but we'll closely examine not only what the instrument was, but how it was reportedly being brandished (were you actually holding the knife or were you merely in the kitchen in proximity to a knife?), and how a reasonable person might interpret the actual threat level. If you swing and miss, the lack of physical contact means you'll most likely be charged with aggravated assault, with prosecutors arguing one's hands/fists were a deadly weapon. Depending on the facts, we might argue the defendant's appendages should not be characterized as such.
  • Insufficient evidence that the accused intended to commit a felony. If prosecutors are adding an enhancement to the charge on the assertion that the accused assaulted the victim with the intention to commit a felony, they bear the burden of proof to show that intent. This usually requires testimony from someone who says the defendant told them he/she intended to commit the crime. It might also stem from the defendant's confession. We can challenge these with close scrutiny of the witness's credibility. We will also look carefully at the circumstances under which a confession was made to determine whether it may be inadmissible.

Our exact defense strategy will depend heavily on the precise facts of your case. If you're facing these charges, the best thing you can do is refrain from talking to police (or anyone else) about what happened before you have obtained legal counsel.

If you have been charged with domestic violence aggravated assault in South Florida, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.

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