Assault, Battery & Domestic Violence

Since the O.J. Simpson fiasco, legislatures have readdressed the statutes related to violence and more specifically Domestic Violence. People often fail to realize a few details about Domestic Violence cases. A mishandled misdemeanor case could preclude the accused from ever owning a firearm. A misdemeanor case could become a felony if the accused has one prior misdemeanor Battery conviction. A misdemeanor can be upgraded to a felony for a multitude of reasons (i.e., the Battery involves some alleged touching of the neck; the victim is 65, or pregnant, or an officer of the law; etc.). In short, a simple Battery (one year in prison) can quickly become a felony (five years or more in prison). In addition, certain cases involving violence can never be sealed.

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In any case involving a Battery Domestic Violence (DV), a judge will invariably issue a no-contact order, making any contact between the defendant and the alleged victim a violation of the court’s order, resulting in possible arrest and jail. The order typically includes no contact through third-parties, as well. Under those circumstances, an attorney will be invaluable, as he may contact the victim to discuss the case, including removing or modifying the no-contact order. A good attorney will gather accurate information from the victim, after the parties have cooled down — or the alcohol has evaporated. A good attorney will also provide the intake prosecutor with a more complete picture of the facts which will allow the prosecutor to make a better-informed filing (or non-filing decision) so that all parties may return to their normal lives. (See major investigative concern below.)

In Battery DV cases, the attorney is even more valuable, as the defendant may initially be removed from the house and prevented from contacting any children or pets that the parties may have together. Also, there may be assets that need tending, such a house mortgage or utility bills to be paid. If the two parties can’t even call one another to confirm payment of a bill, economic harm may be added to the problems of both the alleged victim and the defendant.

One Major Investigative Concern & Why the Facts in Your Case Must be Quickly Investigated by Your Defense Attorney

Once a police officer arrives at the scene of an alleged Battery, she will determine rightly or wrongly who should be the victim in a case. At this point, she will apply herself knowingly or unknowingly to manipulate her perception of facts she did not witness to support her theory or appreciation of the case. She will exclude facts not supporting her decision. Unless your attorney intervenes quickly, investigates the whole picture, and reports to the intake prosecutor, the latter will make a filing decision based upon the distorted facts and deficient investigation provided by law enforcement. (It is my understanding that the public defenders do not have the luxury or the time to deal with this very important step of pre-filing work).

The Unspeakable Problems with Violence Cases

First off, a person can be arrested simply because someone went to a police department and signed an affidavit that they were the victim of a Battery, without more. It is pretty scary when you realize that pretty much 50% of the witnesses in such cases will take the stand and blatantly lie under oath. A good liar can destroy someone’s life, and it happens.

Secondly, the legislators have created a statute, which makes a regular misdemeanor Battery a felony if strangulation is alleged. Curiously, since this statute was enacted, strangulation — which was practically NEVER an issue previously — has become a very regular occurrence. Some unethical officers use the statute as a tool and suggest this specific detail to the alleged victim (for instance asking the question: “And during the altercation, when did he grab you by the neck?”), which allows them to charge the accused with a felony.

Third, the investigators into making statements, which are incomplete, false or distorted, regularly manipulate the alleged victim. There are MANY cases where the police threaten a victim with the removal of his or her children if the victim refuses to comply with what law enforcement want them to do. You will OFTEN seen law enforcement involve the Department of Children and Family, when it is absolutely unnecessary, to try to manipulate a situation. And often, the victims are re-victimized because they do not know their rights. Very often, the victims in such cases contact the attorney representing the defendant and their stories are horrifying.

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If you are an alleged victim and you are threatened in any way, please CALL US, and we’ll inform you of your rights: 321-951-3400. We are here to help you with these difficult matters.

Fourth, you and your spouse have a loud verbal argument, and NO CRIME is committed. A neighbor or a passerby calls the police. There are many horror cases, where the police show up and WILL arrest one of you (or both) even though NO CRIME was committed, both parties confirmed that NO CRIME was committed, and neither Mr. Copper nor any third party witness observed ANY CRIME BEING committed… and they call that justice?

Fifth, a couple is ready to divorce, and they are both angry. Some unethical attorney will suggest how to use the system to make sure their client gets the exclusive use of the house. A single little lie alleging ONE EVENT of Domestic Violence can force a spouse out of the house for months — even if the house belongs to that very accused party.

And the examples go on and on and on…

Real Defenses to Real Crimes of Battery

Mutual Combat

Both parties were equally fighting with one another and there is no particular victim or aggressor. It might be illegal for two people to slug it out in public, but the crime would be Disorderly Conduct perhaps; not Battery. Just as two boxers, football players, or Sumo wrestlers may touch one another without breaking any law, because of a mutual agreement, so might two disagreeable personalities who mutually start swinging at one another in a bar or in the street. Again, they might be breaking some law, but that law would not be Battery.


It is a defense to Battery if someone is acting to defend themselves, or others. Naturally, there are legal limits surrounding the circumstances and the proportional amount of force used in the action claimed to be self-defense. Self-Defense is basically an affirmative defense, meaning that the defendant admits to the crime of Battery, but claims that circumstances justified that illegal touching.


The crime of Battery requires that the defendant “actually and intentionally” touches another or “intentionally causes bodily harm.” If one, in a fit of sneezing, accidentally bumps into someone, that is not going to legally be a Battery, since there was no intent. Tripping over someone’s shoe in the restaurant and then falling on someone dining at a nearby table would not be a Battery on either the wearer of the shoe or the diner, since both the trip and the falling atop the diner’s table were involuntary.

Call the Melbourne, Florida criminal defense attorneys of Morgan and Barbary today for a FREE telephone consultation: 321-951-3400. We are your first call for any legal problem.

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