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What to do if you have been charged with domestic violence

Being convicted of any criminal wrongdoing can affect your life in a myriad of ways. But being convicted of domestic violence charges can uniquely impact your access to your children, your right to legally carry weapons and even your ability to remain in your own home. For these and a host of other reasons, it is critical that you contact an experienced criminal defense attorney as soon as you have been accused of committing any kind of domestic violence. As soon as you have been accused, insist on speaking with an experienced attorney and do not speak with law enforcement until he or she arrives. Even if you are completely innocent of all charges, it is critical that you take advantage of your right to remain silent. After all, you have no way of knowing how a law enforcement officer or prosecutor may twist your words and eventually use them against you. It is also important to speak with your attorney if any temporary restraining orders or orders of protection are in place against you. If you violate these orders in any way, you could end up in jail. Even asking a friend to speak with your spouse about picking up or dropping off your kids could be a violation under certain circumstances. Make sure that you understand what these orders prohibit you from doing and speak with your attorney if the order keeps you from obtaining necessary property, seeing your children or getting to work. Facing domestic violence charges may be a scary prospect. Stay calm and do not make any rash decisions. Instead, immediately consult an experienced attorney who can help you navigate your case as successfully as possible.

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| Read Time: 2 minutes | Domestic Violence

The Lautenberg Domestic Violence Gun Confiscation Law

The Lautenberg Domestic Violence Gun Confiscation Law states that if a person is convicted of a domestic violence involved misdemeanor, he or she cannot ship, transport, possess, or receive firearms or ammunition, and also adds to the list of “prohibited persons”. In this case, a prohibited person can now be a person convicted of a misdemeanor involving domestic violence on their spouse, son, or daughter. A prohibited person can never again own or acquire a firearm of any type, and the only way to alter this law is by either getting their criminal record expunged, or being pardoned of their criminal activity to be able to own or acquire a firearm. The Lautenberg Domestic Confiscation Law was signed into law on September 30, 1996 as part of section 658 in the Treasury Postal portion of the omnibus appropriations bill.  Many criminal attorneys and defendants are not aware of this law and unfortunately do not become aware of it until it’s too late. The law’s definition of a misdemeanor crime of domestic violence is “the use or attempted use of physical force against a family member”. This also includes spanking in many jurisdictions; meaning, spanking a child could result in a lifetime ban of owning a firearm. A battery does not have to occur for this law to be in effect. The threatening of a deadly weapon would also be covered in this law. Also, this law does apply to past cases and will result in a ban on owning weapons. Lastly, if a prohibited person is found with a firearm, he or she could be subject to a $250,000 fine and 10 years in prison. Also, law enforcement officials and members on the armed forces are no exception to this law.  Interestingly, an officer “under a current protection order, or even one who has a conviction for murdering a spouse, may legally possess a service firearm, but a person convicted of a crime under the Lautenberg law is prohibited from carrying a firearm. Surprisingly, battered women, who are protecting themselves, also can become a prohibited person and receive a lifetime ban of owning firearms. Finally, it is also a felony to transfer a firearm or ammunition to a known person to have a domestic violence conviction. Clearly, according to this law, there will be a lifetime punishment for being convicted of a domestic violence misdemeanor. This law is clearly trying to deter individuals from committing acts of domestic violence by imposing a lifetime ban on possessing firearms or ammunition. By Benjamin Burleson of Moses and Rooth Attorneys at Law Sources: http://gunowners.org/fs9714.htm

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Florida court upholds rights of poor persons accused of crime

Florida criminal defendants too poor to afford their own representation may soon find themselves represented by counsel not employed as public defenders. When confronted with an overburdened criminal defense system, the Florida Supreme Court recently opted to value the rights of the criminally accused over certain interests of the state’s tax payers. In essence, the court ruled that if a public defenders’ office is too taxed with current client interests to take on additional cases, the state must pay for other qualified representation for indigent criminal defendants. Fifty years ago, a Florida case entitled Gideon v. Wainwright was appealed all the way to the United States Supreme Court. That body ultimately ruled that every indigent person who cannot afford adequate criminal representation must be provided with adequate counsel if he or she has been accused of criminal wrongdoing. In upholding this right broadly, the Florida Supreme Court recently reaffirmed that adequate representation is a foundational right of the criminal justice system. Public defenders increasingly face an insurmountable workload. As a result, it can be nearly impossible for these civil servants to adequately uphold their ethical and constitutional duties to their clients. By allowing for a safety valve in the event that a given office is too overburdened to take on new clients, indigent persons in Florida will now not be left without the counsel they are entitled to. We often write about some of the ways in which the criminal justice system seems to be broken and nearly beyond repair. Thankfully, the news of Florida’s decision is a cause for celebration. Source: ACLU, “ACLU Praises Fla. Supreme Court Decision Recognizing Crisis Faced by Poor People Accused of Crimes,” May 23, 2013

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| Read Time: 2 minutes | Domestic Violence

Florida judges tracking alleged domestic abusers via GPS

Judges in two Florida counties are mandating the use of GPS trackers in certain cases they deem to be high-risk. Individuals accused of committing acts of domestic violence in Osceola and Orange counties may be fitted with GPS devices designed to warn those associated with orders of protection in the event that their alleged abuser comes too close. At this time, the GPS units will only affect cases in which permanent injunctions have been ordered. However, this policy has the potential to morph and spread until it affects other kinds of cases in the future. As it stands, this policy is likely the first of its kind nationwide, given the nature of the offenses being targeted. No one can dispute the idea that if an order of protection is in place, it should be respected. However, the tagging and tracking of individuals with GPS units for an undetermined amount of time is likely to be opposed by civil liberties advocates. Especially because many of these cases are solely civil in nature and affected persons have often not technically been found guilty of any crime. To-date, only criminal defendants are outfitted with GPS units throughout the U.S. Roughly ten percent of alleged domestic violence cases in these counties could be affected by the new policy. It was inspired in large part by the spike in domestic partner homicides that have occurred in Florida in the past year. This trend is certainly a problem and must be addressed. However, tracking individuals who have not been convicted of criminal activity via GPS for an uncertain amount of time is not likely to be the best solution, especially given legitimate concerns about the privacy of those affected. Source: Orlando Sentinel, “GPS tracking will warn domestic-violence victims when abuser is approaching,” Kate Santich, Feb. 8, 2013

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| Read Time: 2 minutes | Domestic Violence

Man who Killed Thief is Freed Based on Florida’s “Stand Your Ground” Law

A Florida judge has dismissed a murder charge against a man who chased and fatally stabbed a car radio thief in Miami’s Little Havana area in January. In the wee hours of the night the accused man discovered two people in his truck stealing his car radio. Alarmed, they ran off. Carrying a knife, he chased one of them. When he caught up with the thief, the thief tried to hit him with a bag containing three stolen car radios, weighing about four to six pounds. The radio owner ducked the blow and mortally stabbed the thief. Over the next hours, the accused man failed to report the incident, but police eventually found him and questioned the man about the incident. He ultimately admitted to his role after viewing a surveillance video showing the confrontation, leading to police charging the man with murder. Reviewing the facts, the judge stated that the accused man was justified in chasing the thief to try to recover his property. She was convinced that the accused felt threatened when the thief swung a heavy bag of metal objects at him. Citing Florida’s 2005 Stand Your Ground law, she determined that the law protected him from being charged with murder under the circumstances. Under that law, a citizen does not have a duty to retreat when threatened but can lawfully use force when attacked – which can be applied as a defense in a wide variety of cases ranging from shootings to domestic violence. The man was represented by a public defender who welcomed the judge’s decision. The judge gave credit to the public defender’s office’s hard work in protecting their client’s constitutional rights. This case has likely received extra attention in the wake of the highly publicized and controversial killing of 17-year-old Trayvon Martin by an armed neighborhood watch member. The neighborhood watch member has similarly invoked Florida’s Stand Your Ground law in defending his actions.

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Domestic Violence immunity through Stand Your Ground Laws

The Stand your Ground Defense can apply to variety of criminal cases including a simple domestic violence battery charge. The Stand your ground laws in the State of Florida have been a hot topic of discussion over the past couple of weeks related to the high profile case Trayvon Martin. In the Trayvon Martin case, law enforcement is refusing to arrest and charge the shooter, George Zimmerman. Mr. Zimmerman is attempting to apply the Stand Your Ground Laws in order to have immunity for the shooting death of Trayvon Martin. While there is great uproar across the country, it’s important to understand the laws in the State of Florida. The law associated with Stand your ground does not always have to be attributed to a shooting case. A detailed look at the facts and correct application of the laws in the State of Florida may provide a valid defense to even a simple domestic violence battery charge. In domestic violence cases, we often see Law enforcement officer rush to judgment without a full investigation. Some agencies even have an internal policy where they must make an arrest when responding to a call related to domestic violence. A recent case published, State of Florida v. Bryan (FLWSUPP 19058BRY), ruled that Mr. Bryan was immune from prosecution under the Stand Your Ground law. Mr. Bryan was charged with Domestic Violence Battery for the unlawful touching of the alleged victim, NMF. (The courts many times will use initials rather than publishing the name of a juvenile). NMF entered Bryan’s home, walked into his room and struck Bryan. NMF then stood in front of the room door preventing Bryan from the exit. Bryan then walks up to NMF and strikes her. Law enforcement responds and only arrests Bryan for the Domestic Violence battery. The Court applied Florida Statute 776.012 which provides in part: “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force”. So, because NMF stood in front of the door and had recently used force on Bryan, the Court ruled that it was therefore reasonable for Bryan to believe that NMF would use force to prevent him from leaving the room. With this ruling the Court found Bryan immune from prosecution under the Stand your Ground law and dismissed the case.

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Single Spank is not Domestic Violence, Florida Court Rules

A three-judge panel in the First District Court of Appeal has ruled that one single spank does not qualify as domestic violence, and unanimously quashed an injunction for protection against domestic violence issued against a man identified only as G.C. Injunction for Protection Against Domestic Violence The injunction for protection was issued by a lower court based upon accusations from the ex-wife of G.C. that he spanked their 14-year-old daughter once on the buttocks with his hand. The father had stated he spanked his daughter because she had been acting defiant and disrespectful – while the teen believed she was merely being sarcastic. In making their decision, the court stated, “common law recognize[s] a parent’s right to discipline his or her child in a ‘reasonable manner’… a parent’s right to administer reasonable and non-excessive corporal punishment to discipline their children is legislatively recognized.” Moreover, the court opined that since the law in Florida regarding domestic violence does not expressly exclude this common law defense, it is available to quash a injunction against domestic violence – and when the defense was applied in this particular case, the court ultimately concluded that “under established Florida law this single spank constituted reasonable and non-excessive parental corporal discipline and, as a matter of law, was not domestic violence.” Domestic Violence Under Florida law, domestic violence is generally any type of assault or adverse intentional action that results in an injury to any other member of the family or household – in this case it was between a father and daughter, but a more commonly occurs between a husband and wife or boyfriend and girlfriend. Emotionally charged domestic violence accusations not only split families but also lead to a host of other severe consequences. Because of the seriousness surrounding domestic violence allegations, if you are a victim trying to get a restraining order or even the accused trying to protect your rights, it is important to contact an experienced domestic violence lawyer in your area.

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Public Perception on Domestic Violence often Misses the Mark

Anyone arrested for domestic violence already knows the weight that such accusations carry. Even when the charges are baseless, the arrestee is already convicted in the court of public opinion. However, a recent domestic violence arrest appearing in national headlines could help to prevent some from jumping to conclusions when accusations of domestic violence are made. A few weeks ago, a young Florida couple was wed in Fort Lauderdale. In accustomed fashion, the bride and groom stayed out late to jubilantly celebrate their marital vows. However, the husband left the party without the wife, after he allegedly spotted her dancing with another man. He returned to their home in the well-to-do community of Lighthouse Point. Soon after, the bride returned home and – not surprisingly – an argument ensued. While criminal proceedings have not yet revealed the details of what exactly happened in the young married couple’s home, police responded to a 9-1-1 call. According to the police, when they arrived they saw the shirtless husband holding down the wife with one hand while holding a phone in the other. The police separated the husband and wife and assessed the situation. After allegedly discovering bite marks on the man, law enforcement arrested the woman for domestic battery. While the criminal proceedings unfold, the judge ordered the wife to stay away from her husband, as an injunction or restraining order is typically issued following a domestic violence arrest. While this story has captured the nation’s attention because of the rocky start to the couple’s marriage, the public could stand to learn a few things from the story: Domestic violence charges aren’t gender-specific. Both males and females face accusations of domestic violence. Domestic disputes occur in all communities. Whether rich or poor, nearly all marriages involve heated arguments from time to time. Alcohol can amplify emotions. While Floridians enjoy the right to spirited celebration, it can sometimes help escalate a simple disagreement into a call to the police. Even when a husband or wife pleads for the charges to be dropped – as is the case with the young Lighthouse Point couple – it is extremely rare for prosecutors to drop a case or for a judge to show leniency. It is crucial for the accused to contact an experienced criminal defense attorney and follow all of the court’s orders, including conditions of an injunction or restraining order.

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| Read Time: 2 minutes | Domestic Violence

Do Domestic Violence Arrests Really Spike on Super Bowl Sunday?

For years we have heard that episodes of domestic violence dramatically rise on Super Bowl Sunday. Much like the common belief that hospital emergency rooms are busier when there’s a full moon, the truth of the Super Bowl violence matter is shrouded in mystery. Or is it? Many Believe There is No Link between the Super Bowl and Violence Organizations supporting victims of domestic violence have voiced their opinion that the belief is a myth. These advocates trace the impression back to 1993, when an organization known as FAIR released a press release, stating that “Super Bowl Sunday is… one of the worst days of the year for violence against women and in the home.” Reputable news agencies such as NBC Sports, CBS and the Associated Press ran with the story, even though the claim lacked reliable statistics to support it (they later retracted their reports). People working to aid victims of domestic violence say that the erroneous news reports from 1993 caused this impression. They wish the misconception would die out because they work to reveal truths about domestic violence and do not want myths clouding such a serious issue. While the 1993 news blunder did happen, many believe there is still truth in the correlation between Super Bowl Sunday and domestic violence. Some Say Super Bowl Causes More Arrests for Domestic Violence Dr. Jeff Kalina is an emergency medicine physician in Houston who often treats victims of domestic violence. Kalina believes that the Super Bowl causes the perfect storm for violence in the home. “There is a lot of testosterone flying around during the Super Bowl. You mix that with alcohol and underlying relationship problems and you have a recipe for disaster,” he remarked. Some accomplished economists’ research may support Kalina’s belief. Economists David Card and Gordon B. Dahl analyzed police reports of family violence during the NFL season. They concluded that upset losses against the home team created a spike in calls reporting domestic violence. Such a study could lend credibility to the notion that NFL football has a link to domestic violence. In Conclusion Although the link between the Super Bowl and family violence may have been born through faulty reporting, there may be some credibility to the claim. In the future, maybe someone will create a reliable study evidencing a correlation. What we certainly do know is that the Super Bowl often involves a lot of drinking. Common sense tells us that this can lead to arrests for a variety of different crimes and will certainly cause a spike in DUI offenses. However, it appears that the Super-Bowl-domestic-violence conundrum will live on for at least another year. Perhaps in February 2012 we will have a definitive answer. Be safe; enjoy the game and try to relax.

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