“Alcohol + Anger = Arrest”: The Legal Mess of Domestic Violence Recantations

By: John Guidry

Ever been under a lot of pressure and emotion, so much so that you said something you shouldn’t have? It happens.

But when a couple’s night of drinking turns ugly, the consequences are far more severe than a simple regret. To see what happens when we bring two such people together, take a look at the equations below:

Or, how about this equally valid equation:

[Early Morning Hours] + [Yelling] = [Neighbors Call Police] = [Arrest]

As our community caretakers, the police are in an awful position. They can’t leave the drunk couple together for fear of escalating troubles. Most police departments have a policy of taking someone—anyone—to jail just to cool off the situation. Thus, they find a reason to arrest either the man or the woman, creating a domestic violence battery case out of thin air.

However, once the tempers calm down and the alcohol metabolizes, many folks regret their drunken sworn statements. This leads us to the messy legal world of recantation.

Is the alleged victim in your case trying to drop the charges?

It’s not as simple as signing a waiver. Call John today at (407) 423-1117 to understand the legal hurdles.

The “Recantation” Trap: Morton v. State

In the midst of an alcohol-soaked dispute, cops fight hard to get a “sworn” statement. But once clearheaded, can the witness tell the truth without fear of perjury?

When an alleged victim decides to “recant” (take back their story), it spells trouble for the prosecution. Why? Because of a legal principle established in Morton v. State, 689 So. 2d 259 (Fla. 1997).

• The Rule: Prosecutors are not permitted to call a witness merely to impeach them with their prior statement if they know the witness has changed their story.
• The Reason: There is no legitimate purpose in calling a witness just to show they are a liar. It is often a “backdoor” attempt to get the jury to hear the old, inadmissible statement.

As stated in Hernandez v. State, 31 So. 3d 873 (Fla. 4th DCA 2010), this practice is considered abusive. If the State knows the victim will testify favorably for the defendant, they shouldn’t be calling her just to read her old police report to the jury.

Defense Tip: This is why it is critical for us to file a Motion in Limine to exclude the victim as a witness if we know they are going to recant. We have to put the State on notice.

The Loophole: “I Don’t Remember” (McNeal v. State)

But what if the witness doesn’t say “It didn’t happen,” but instead says “I don’t remember”?

This brings us to the sticky concept of “Past Recollection Recorded.”

In McNeal v. State, 129 So. 3d 426 (Fla. 1st DCA 2013), the court dealt with exactly this issue.

• The Facts: McNeal’s girlfriend gave a sworn statement to police but later tried to drop the charges. At trial, she didn’t deny the incident; she conveniently claimed she could not remember anything.
• The Ruling: The judge allowed the prosecutor to read her original sworn statement to the jury as a “past recollection recorded.”
• The Controversy: Even though the girlfriend couldn’t verify the accuracy of the statement at trial (a usual requirement), the court allowed it because other evidence (911 calls, photos) supported it.

The Danger: This ruling allows the State to bypass the Morton rule. If the witness “forgets,” the State might get to use the police report as evidence against you, effectively impeaching their own witness without breaking the rules.

John’s Takeaways

Domestic violence cases in Orange and Seminole County are rarely as simple as “he said, she said.” They are complex evidentiary battles.

• Recanting is Risky: A victim cannot just “drop” the charges. The State owns the charges. If a victim changes their story, the State often fights harder to get the old statement in.
• “I Forgot” vs. “It Didn’t Happen”: There is a massive legal difference between these two statements. McNeal shows us that “forgetting” can actually hurt the defense more than a direct denial.
• The Police Report isn’t Gospel: Just because an officer wrote it down doesn’t make it true. We have to challenge the accuracy of that statement, especially if the person who wrote it (the victim) won’t stand behind it in court.

Don’t Let a Drunken Argument Ruin Your Life

Battery cases can be tricky. Our courts are split on how to handle these statements, and you need an attorney who knows the difference between Morton and McNeal.

If you are facing domestic violence charges and the truth has been lost in the legal shuffle, let’s find it.

Call me at (407) 423-1117. Let’s clear your name.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.