Domestic Violence Battery

Battery Domestic Violence

Florida law defines battery as an intentional touching against the will of another person. Battery can be charged as a misdemeanor or a felony, depending on the level of alleged injury. At the law firm of criminal defense attorney John Guidry II (you like all those buzz words?), we have the skill and the experience needed to handle charges related to battery-domestic violence, sexual battery, aggravated battery, aggravated battery with a deadly weapon, and aggravated battery with a firearm.  Ok, enough with the formalities, let's dig deeper into what it all means.

Effective defense in battery cases rests on an evaluation of the circumstances surrounding the accusations.  How many people "saw" the alleged crime?  What type of evidence is available?  For example, will there be a 911 recording?  Will there be photographs?

More often than not, these cases rely more on witness accusations rather than actual physical evidence, which begs the question: will the prosecutors have "evidence" to support their accusations?

Some police investigators simply chose to believe the accuser rather than take the time needed to uncover physical.  Shocking, I know.  Our law firm examines all the possible motives for the battery arrest. Was there a break-up or divorce pending? What is the extent of the alleged injuries? Are the injuries legitimate, self-inflicted, or sustained prior to the alleged incident? If an injunction is involved, does the “story” in the injunction match up with the “story” told to law enforcement on the arrest date?  Does the "story" match up to evidence posted to social media sites?  And let's not forget, a person arrested for domestic violence may still be immune from prosecution under Florida's Stand Your Ground statute.


A battery charge can be enhanced to a "Domestic Violence" charge depending upon the relationship of the Accused to the alleged victim.  If the couple are married, that's easy, but under what conditions can a battery be enhanced to a domestic violence charge when the couple is not married, and not living together?  Well, our legislature has thought of just about everything, they call it "dating violence", and here's some guidelines:

“Dating violence” is simply a regular battery case, but between people in a romantic relationship. The existence of such a relationship shall be determined based on the consideration of the following factors:

1. A dating relationship must have existed within the past 6 months;

2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and

3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.


Often, domestic violence battery charges are based upon the sworn statements of an alleged victim.  These statements are given to police under extreme conditions, and many folks regret what they told the police the next day.  Under these circumstances, it is important for the defense to make the alleged victim's true statements known to the prosecution.  This statement is known by many names, most commonly a Declination of Prosecution, or a Drop Charge Affidavit.  Of course, changed testimony can create some problems of perjury and/or filing a false police report, so these affidavits should be drafted with care.  Also, once the prosecution has been put on notice via a declination affidavit that the alleged victim has recanted her story, can the prosecutors still use an alleged victim's old statement if that victim has now "recanted" his/her story?  Its a tricky subject, but you may read my article "Recanted Testimony in Battery Cases" for more details on how this plays out in court.


This is a fairly common scenario in Domestic Violence cases.  This is common question, too.  Say you have a husband and wife in a physical altercation, and the husband is arrested.  A few weeks later, the couple now wishes to reconcile their marriage and as such, the wife refuses to cooperate with the State Attorney's Office.  Will the charge simply be dropped?  Well, maybe.  That depends upon the circumstances.  First of all, the wife must appear in court if she is legally subpoenaed to do so (as a side note, subpoenas that are delivered via U.S. mail to witnesses are very suspect and do not--necessarily--qualify as legitimate service of process upon a witness). 

So, lets say the wife doesn't appear in court for trial.  The case may still go to a jury if the State can present a witness who personally know the wife, and can testify as to the battery.  But if the "independent witness" does not know the wife personally, the case should be dismissed because, without a witness that personally knows the wife, no one can identify the victim.  Florida's battery statute requires that the State prove the precise identity of a victim. 

For example, one Florida case involved a domestic violence arrest in which the entire incident was witnessed by a police officer who just happened to be standing nearby.  The officer broke up the fight, and arrested the husband.  The officer asked the alleged victim/wife her name, and obtained further information from the wife by reading off her Florida ID card.  The wife refused to appear for trial, but the State went to trial without the wife and presented the testimony of the police officer who witnessed the entire incident.  When it came time to identify the wife, the criminal defense attorney objected to the officer's testimony regarding his wife's name, because it was hearsay.  In other words, the officer didn't really know the name of the wife, he was simply repeating what he had heard.  Even though the trial court allowed the testimony (and hence, a conviction for Battery DV), the appeals court overturned the conviction.  The appeals court overturned the battery conviction because the State failed to prove the identity of the wife. The appeals court rejected the "proof" of identity presented by the officer, as the testimony regarding the wife's name was merely "heard" by the officer, not known personally. For more details on this interesting case, check out my article "Can You Prove Battery Without a Victim?"

Every battery case is different, with different sets of circumstances, different motivating factors, and different defense strategies. The Criminal Defense Firm of John Guidry II will thoroughly and personally defend your case, and advise you as to your best course of action. In all cases, we are committed to defending your rights to the full extent of the law.

If you have been charged with any type of Battery, you need immediate , effective defense work that our law firm offers. We urge you to contact us today for a free consultation.


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