Yesterday I attended the Orange County Bar Association Criminal Law Section’s continuing legal education course on domestic violence. The Honorable Judge Nancy Clark, who is a judge in the Ninth Judicial Circuit County Court in and for Orange County, was the presenter and did a phenomenal job. I also had two cases where my clients were accused of battery domestic violence in Seminole County, Florida before the Honorable Judge Fred Schott. Both of these experiences brought many issues to the forefront for people charged with domestic violence.

If you have been arrested for domestic violence you are not entitled to bond out of jail until you see a judge at First Appearance. See F.S. 741.2901(3). The first appearance is supposed to be within 24 hours of arrest.

At the first appearance, the Judge shall consider the safety of the “victim”, the “victim’s” children, and any other person who may be in danger if the defendant is released, and exercise caution in releasing the defendant. F.S. 741.2902(1).

In Seminole County, those accused of domestic violence offenses are often released on bond after seeing the judge, but their freedom is still severely compromised. The reason, many judges will require that the accused be monitored by the state by a GPS device. The accused will have to wear an electronic device around his/her ankle and call the GPS administrator whenever the device alerts.

This restriction on one’s freedom is quite intrusive and is done with only a scintilla of proof. Often in these types of cases, there are two sides of the story, but law enforcement and the prosecution will take the side of the party who reported the conflict. (This is why I put the word victim in quotes). This means, even if your partner hit you first, and then you defended yourself, but your partner reported the conflict, you will likely be the one arrested and subject to the restrictions on your freedom as mentioned above and including not being allowed to return home, or being able to contact the other person.

The Florida Legislature has required the State Attorneys to adopt a “pro-prosecution policy.” As a result, the prosecution often files charges against the arrested without a complete investigation or application of the laws.

In fact, if it is reported that parties live together, law enforcement and the prosecution automatically assume that any violence between the parties constitutes domestic violence. This actually is not the case. It is only domestic violence if the parties are spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or 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. F.S. 741.28(3).

The reason I say this is not the case is because often a knight in shining armor, man/woman, begins to date someone. Said someone has nowhere to live so this knight in shining armor lets this said someone reside with them. Then this said someone accuses the knight of domestic violence. The knight is arrested, not allowed to return to his/her home because the judge and prosecution assume the this is domestic violence. But it is not. Why you ask. Well, the parties don’t reside together as if a family. There is no intent to get married, and there is no intent to have children. Thus, the parties may live together, but not as if a family.

This begs the question, how do I get the Court to understand this. You have the right to an adversarial preliminary hearing before a judge where the burden is on the prosecution to show that there is probable cause for the charges alleged leading to your arrest. Florida Rule of Criminal Procedure 3.114(b)(1) and Parry-Hoepfner v. State. Thus, in a situation like described above, the prosecution would not be able to provide probable cause of domestic violence and the restrictions on your freedom should be alleviated.

This is just one legal means of having your freedom that was deprived without sufficient proof restored. For more information contact a qualified attorney. 407-865-8888.