If you are a first-time offender and the alleged victim consents, you may be eligible for pretrial diversion (PTD). However, in a domestic violence case, PTD is not comprised of simple tasks that can be completed over the course of a few weeks. For felony domestic charges (such as aggravated stalking or aggravated assault), you may be required to enter the DIP (Domestic Intervention Program) as a condition of pretrial diversion. This is an extensive course. If you are charged with misdemeanor domestic violence (such as assault, battery, or violation of injunction) you are looking at 26 weeks of anger management! That's nearly 7 months!
But then again, you may not even be offered these programs. If you have a prior record or the alleged victim says "no," you will be offered a withhold of adjudication and 1 year of reporting probation. While this may be all well and good since it doesn't involve a criminal conviction, you must be aware of the fact that domestic violence charges cannot be sealed!
You may recall that the main difference between having your criminal record sealed and expunged is that an expungement occurs when a charge has been dismissed (either no action or nolle prosse). A criminal record is sealed when adjudication is withheld on a qualifying offense. Click here to see which offenses qualify and do not qualify.
You will see that domestic violence charges, regardless of whether they are misdemeanor or felony charges, cannot come off of your record. For instance, if you pleaded no contest to a non-domestic aggravated assault (fight with a stranger) and received a withhold of adjudication followed by 2 years probation, at the conclusion of the probationary term, you could have your record sealed. Now, same charge only the alleged victim is a spouse, former spouse, or parent of a common child? You are ineligible. The Florida legislature is serious about domestic violence crimes, and one of the things they want to do is make sure that accused domestic batterers are labelled for life. It is unfair and downright wrong, but it is the law.
However, you can fight against this policy by not pleading guilty to domestic violence charges without first consulting a competent Miami or Broward criminal defense attorney with domestic violence experience. As a former Miami-Dade Assistant State Attorney, I know the tricks and the tactics used by domestic violence prosecutors. I know that prosecutors often try to compel the testimonies of unwilling witnesses through threats and coercion. I know that in some cases, prosecutors will even seek to have their alleged victims and witnesses put in jail if they refuse to testify.
As I have stated before, the law in Florida permits prosecutors to proceed without testifying witnesses (victim testimony). So yes, to answer a question I hear nearly everyday, the State can prosecute you even if the alleged victim is not on board!
Don't hire a lawyer whose sole strategy is, "Let's see if the witness shows up." You can use that strategy in traffic court when fighting a speeding ticket. Don't try it when jail time or a life-long criminal record is on the line.
A shrewd and clever criminal defense lawyer may be able to get vital pieces of evidence (such as a 911 tape) excluded. This, and only this dilligent motion practice, can help win your case if the prosecution intends to proceed without a victim. If these motions are not successful, sometimes the only other option is a jury trial. I always like to think that a jury is the one thing standing between a civilized society and a total police state. If the prosecutors and the cops are being unreasonable, you may want to put your case in the hands of 6 rational people.
While the Florida Supreme Court doesn't allow for attorneys to advertise their victories on their websites, I can tell you, without offering specific details, that I have been successful in filing pretrial motions (namely motions that exclude 911 tapes). Feel free to call or email me and I will tell you about this in more detail than my website will allow.
The bottom line is that by pleading guilty to a domestic violence charge, you are subjecting yourself to a lifetime criminal record. Don't be confused just because the State is offering you a withhold of adjudication. It may not be a felony conviction (in other words, your civil rights will not be taken from you), or even misdemeanor conviction, but it will still give you a criminal record.
If you go to apply for a job and an employer does even a shallow background check, he or she will find your case, along with the details of your charge. I can't even begin to tell you how many times a day I get calls from good people who have one domestic violence charge on their record, for which they received a withhold and probation. A great number of these people (many of whom are bright and highly-educated) cannot find jobs. All because of this supposed "withhold" on their record.
Call my office today if you or someone you know is being charged with any domestic violence offense in Broward or Miami-Dade County.