Wednesday, February 3, 2016

Can I drop the domestic battery charges against my family member?

Sometimes families fight. Sometimes those fights get physical. Sometimes the police are called and someone is arrested even if the "victim" did not request police or that the primary aggressor be arrested.  The family is left wondering, "how did this happen?" and "how do we get the charges dropped?"

When police get involved, unfortunately people get arrested.  Of course, they need probable cause to arrest someone, but there seems to always be probable cause when families fight.  Once an arrest is made and the booking report is completed and forwarded to a young State Attorney's desk.  The prosecutors job is simply to convict people for crimes and punish them for the most amount of time possible.  Florida's adult criminal punishment system serves one purpose: punish.   911 is not used to "get help" for your disturbed or mentally ill loved one.  911 is to alert authorities to crimes.  And crimes are punished in the State of Florida.  The question for the prosecutor is, "to file or not to file?"

When making a filing decision (which can take up to 40 days if the person is incarcerated and more time if the person is out of custody), the prosecutor may call the victim and find out what they want to do. They may call the victim who does not want to press charges and explain that the victim will be compelled to testify whether they want to or not. That mean that the witness will be subpoenaed/ordered to court and put on the stand to testify truthfully against the defendant.  If the victim or witness refuses, the judge may hold them in contempt of court and put them in jail until the testify, OR if the victim or witness lies on the stand, they could be charged with perjury, a felony charge.  And if the State doesn't call you, the Defense attorney certainly will.  Some state attorneys will honor your request if this is a first offense or minor.  If a weapon was involved, your loved one may have a big problem.

Hiring an attorney for the family member is a good start.  The prosecutor will take an attorney's call and listen to what happened.  But if you were the "victim," you may want your own attorney to advise you in case you've also committed a crime (battery, lying to police, et cetera).  The attorney may be able to convince the prosecutor to divert the case into a program. Diversion programs could lead to dropped charges.  

Many prosecutors have "victim advocates."  If you are the "victim" this is the person that you need to speak to. They assess your desire to have the case dropped and may also sell that to the prosecutor on your behalf. But the fact remains, once the police get involved, the victim's desire is not the final say in prosecution. It is merely a consideration. 

If you don't want to see a loved one prosecuted, don't call the police.  If someone else calls the police, remember that you cannot lie to the police. However, you  can invoke your right to remain silent, you do not have to let them inside the house, and you may call an attorney prior to speaking to police.  

Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com. 

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