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Domestic Violence

WHAT IS DOMESTIC VIOLENCE

Domestic violence laws differ from state to state. The differences range from the definition of domestic abuse to the requirements for mandatory reporting. In some states, medical professionals may have to report suspected abuse to the police.

In Florida, a healthcare provider may NOT report domestic violence without informed consent from an adult, even if the victim admits to the violence. Reporting suspected domestic violence without informed consent is considered unethical in the state of Florida and may leave the healthcare provider who reported the violence open to civil action. However, Florida law does require healthcare professionals who knowingly treat a gunshot wound or life-threatening injury indicating an act of violence to report immediately to the county sheriff's department, with or without the victim's consent (Online Sunshine, 2017c).

WHAT IS FLORIDA'S DOMESTIC VIOLENCE LAW

The term domestic violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

HOW IS FAMILY OR HOUSEHOLD DEFINED

Family or household member means a spouse, former spouse, 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 a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

AM I ENTITLED TO A HEARING BEFORE AN INJUNCTION IS ISSUED

A temporary injunction is issued based upon the Affidavit of the person seeking it, there is no hearing and it is good for at least 15 days. After a temporary injunction is served upon the respondent a hearing will be held within 15 days. At the hearing, the Petitioner must prove by a preponderance of evidence (it is more likely than not) that she/he is in imminent danger of becoming a victim of domestic violence.

WHAT IS THE CRITERIA IN DETERMINING WHETHER OR NOT TO ISSUE AN INJUNCTION

In determining whether the person is in imminent danger the court considers the following  factors and all other relevant factors alleged in the petition, including, but not limited to:

1. The history between the petitioner and the respondent, including threats, harassment,stalking, and physical abuse;

2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner

3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children.

4. Whether the respondent has intentionally injured or killed a family pet. 

5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.

6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.

7. Whether the respondent has a criminal history involving violence or the threat of violence.

8. The existence of a verifiable order of protection issued previously or from another jurisdiction.

9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.

10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.

WHAT ARE THE CONSEQUENCES OF HAVING AN INJUNCTION ISSUED

  1. Your ability to purchase and possess weapons and ammunition is affected.
  1. The final injunction is enforceable in 50 states.
  1. The final injunction may require you to leave a shared residence, restrict and limit visitation with minor children, and/or require you to pay support for minor children and/or the petitioner.
  1. If you violate a final injunction, you may be arrested and charged with a first-degree misdemeanor for each violation with a maximum sentence of one year in jail under Florida law.
  1. If you stalk the petitioner, a person with an injunction against you, you may be charged with a second-degree felony.
  1. You may be deported or your application for citizenship may be affected.
  1. Your employment applications or status may be affected, especially in certain fields if you are required to use weapons for work.
  1. Your professional licenses may be affected. Your admission into the military, schools, colleges, or universities may be affected.
  1. Federal law prohibits a person from possessing or transporting firearms and/or ammunition if they have been convicted in any court of a misdemeanor crime of domestic violence or are subject to a court order that was issued after a hearing for which the person received notice, and at which the person had an opportunity to participate; and
  1. Restrains the person from harassing, stalking, or threatening an intimate partner or child of an intimate partner, or if the order prohibits the person from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
  1. Includes a finding that the person represents a credible threat to the physical safety of uch intimate partner or child; or
  1. Explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

HOW LONG IS AN INJUNCTION VALID FOR

Temporary Injections typically last no more than 15 days but may be extended for good cause, such as the respondent not being served with the temporary injunction and notice of final hearing.

At the full hearing, the judge will decide whether to give you a final injunction. The final injunction will last longer than 15 days and may provide you with more protections than the temporary injunction did.  The final injunction may have a set period of time that it will be in effect (for example, one year) or it may not have an expiration date.  If there is no expiration date, either you or the abuser can file in court to modify (change) or dissolve (end) the injunction at any time and the judge will decide whether or not to grant the relief requested.

CAN I BE ARRESTED FOR DOMESTIC VIOLENCE AND WHAT IS THE PUNISHMENT

Yes. A person is found guilty of, has adjudication withheld on, or pleads nolo contendere (no contest) to a crime of domestic violence that person will be ordered by the court to serve a minimum term of 1-year probation and the court must order that the defendant to attend a batterers' intervention program as a condition of probation. Further, If a person found guilty of the crime of domestic violence and the person intentionally cased bodily harm to another person, the court must order the defendant to serve a minimum of 5 days in the county jail as part of any sentence imposed.

WHAT ARE SOME OF THE DEFENSES TO A CHARGE OF DOMESTIC VIOLENCE 

In Florida, domestic violence crimes are very defendable and a decision to plead guilty or no contest should not be made without first consulting with a lawyer. There are defenses to domestic violence. They are:

Disputes about the underlying incident;

There is no injury and the alleged victim is not truthful;

Alleged victim using domestic violence laws to gain an edge in a divorce action;

Self-defense;

Defending another such as a child or other household member;

Defending against the destruction of your personal property;

Defending yourself when attached in your home (Stand your ground)

Mutual combat;

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John P. Rutkowski, Attorney at Law, is focused on all aspects, Criminal Defense, Criminal Appeals, Driving/Boating Under the Influence. Sale, Delivery, Possession Drugs, All Sex Crimes, Felony & Misdemeanor. Contact us today to schedule an initial consultation.

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