Misdemeanor Domestic Violence Court is full of financial trials and tribulations regardless of guilt.
This Article relates to an estimated 33% of people that wind up being defendants in misdemeanor domestic violence Court that do not belong there at all, because their cases are dismissed by a prosecutor prior to trial, and describes the plight they must face prior to dismissal of charges.
The information presented in this Article is based upon the personal observations of the Author having worked on hundreds of domestic violence cases both in misdemeanor and felony Court. Information presented represents the opinion of the writer, a non-attorney and is intended to provoke constructive thought regarding the issues presented on a human level.
In domestic violence court a person arrested for misdemeanor battery is thoroughly punished prior to being convicted of any crime. The procedures in place for pre-trial release are designed to exact a pound of flesh from the accused during the pendency of the case, notwithstanding the constitutional right of the accused to presumption of innocence. Financial hardship is not labelled punishment, but for all intents and purposes it is just that.
This approach is justified under the belief that all alleged domestic violence victims require protection from the courts. Although many do need protection from the courts, many others do not. Unfortunately there is no easy way for a prosecutor or a judge to immediately determine who is telling the truth. In the meantime an argument can be made that all domestic violence defendants are financially punished starting the day they are arrested, regardless of their guilt or innocence, based upon the sheer number of cases that are ultimately dismissed.
There are a growing number of domestic violence cases that are staged by one person to effect the arrest of another, especially in a marriage separation - pending divorce situation, or even immigration situation. Many unscrupulous people use domestic violence Courts wrongfully for a variety of reasons to gain money, property, custody of children, or even U.S. citizenship.
In a typical domestic violence situation, a couple has an argument and the argument escalates to some physical altercation, minor or otherwise. Oftentimes the police are summoned by one of the parties under the mistaken belief that the police will merely escort the other party out of the house for the night. Wrong. Many times drugs, or alcohol are involved. When the police arrive, they will look for noticeable marks, such as bruises, scratches, skin discoloration, or any other visible sign that an involuntary touching has occurred. Visible marks on a person are used by police to corroborate statements made by the complaining party that an incident of violence actually occurred and that they are a victim. The state also becomes a victim at that moment in time, separate and apart from the listed victim. The other person is generally arrested at that point. An arrestee will obtain a criminal stay away order as part of his or her bond conditions. Unable to return home upon release from jail, other housing arrangements will need to be made.
If a minor child is present in the home, the police may involve the state department of children and family services, in order to establish that the home is a safe environment for the child. In the alternative, police may elicit a promise from the alleged victim that they will file a civil petition for injunction against domestic violence in the civil court the following day. The purpose for that petition is to lodge a civil stay away order against the person being arrested through the civil domestic violence court on behalf of the minor child. If a domestic violence petition is filed a Judge will make an initial determination whether the petition covers the minimum factual statutory requirements, and if it does, will issue a temporary restraining order. The temporary restraining order will then be served by the Sheriff on the alleged offending party as a civil stay away order from an arrestee's child that stays in place until the domestic violence hearing is conducted.
The person arrested is booked through the jail, and notwithstanding that the arrest charge is misdemeanor domestic violence, the court imposes a surety bond, that can range anywhere from $5,000 to $50,000. The bond will include a stay away order prohibiting the arrestee from having any contact, directly or indirectly, with the alleged victim in the case. In order for that person to post a bond to get out of jail, people must generally hire a bondsman and pay a 10% cash fee to the bondsman, and also may be required to post collateral for the full amount of the bond. If one cannot afford to post the bond that has been set, or does not have collateral sufficient to secure the bond with the bonding agency, the arrestee must remain in jail until a bond reduction hearing can be scheduled with the court, which can take anywhere from a few days to more than a week. Many people who cannot bond out of jail fairly quickly wind up getting fired from their jobs.
Many times the listed victim in the case becomes the person now responsible for attempting to get their loved one out of jail, because they cannot afford to financially support themselves independently. There are many cases where the victim pressing charges with police at 3 a.m. is also the party at Magistrate Court at 1 pm the same day asking the State to drop the charges or the State Attorney to set a low bond. It happens many times. The case will not be dropped at Magistrate Court. The financial hardship on the couple has just begun. If the arrestee cannot get out of jail in a timely manner, their job may be lost, thereby limiting their ability to support their family. If the bond is posted timely, and the arrestee does get out of jail within 24 hours, two separate residences must now be maintained by the couple due to the stay away order in place. The couple must now hire an attorney to defend an action that they created, because the case has now taken on a life of it's own, causing more financial hardship.
The prosecutor in the case will endeavor to prosecute the case, notwithstanding that the listed victim in the case has had a change of heart and desires to waive prosecution against their partner. If the listed victim in the case goes before the judge to ask that the stay away order for their partner be lifted, and the prosecutor objects, the court may deny the request, or delay consideration of the request until a subsequent court hearing. This is so even if the listed victim totally recants the statement given to police the night their partner was arrested. If that request is denied, many couples wind up being apart for extended periods of time. Many ultimately loose their homes in foreclosure, due to an impossible financial burden the case has caused. When that happens many become estranged, separated and divorced. An unwelcome stay away order, the day after arrest, can and does destroy families. Perhaps this is why many arrestees and alleged victims completely ignore the stay away order during the pendency of the case and live together as a family unit notwithstanding the order.
If the request is granted to lift the stay away order, the court may impose additional conditions of pre-trial release. These additional forced conditions of pre-trial release may be substance abuse evaluation, and recommended follow-up treatment, daily AA meetings, anger management classes, etc.. creating additional hoops for the arrestee to jump through in order to get back into the family home, while also trying to gainfully employed to support his or her family. Failure to comply with these additional conditions may result in a violation of a court ordered condition of pre-trial release, and wind the arrestee back in jail a second time. The prosecutor may attempt to induce the arrestee to plead no contest to the charges, by offering the arrestee a term of probation, which will come replete with yet more conditions.
The judge will not force the state into trial until the speedy trial period is close to running out. The speedy trial period is normally 3 months for misdemeanors and 6 months for felonies. That time period between initial arrest and the trial date is the time period that unjustly punishes the arrestee and the listed victim, both financially and emotionally, when the prosecutor knows in advance that the case will be dismissed the day of trial. The state has leverage over the couple during the entire pre-trial period; and the case will not be dismissed until the it must be dismissed on the scheduled trial date-for lack of cooperation from the alleged victim.
Consider this, if a prosecutor winds up dismissing a domestic violence case immediately prior to trial, why must anyone be financially punished in the interim for 90 days or 180 days? The Author estimates that at least a third of all misdemeanor domestic violence cases get dismissed by a prosecutor on the scheduled trial date. This is a conservative estimate.
There is a general common sense postulate that people forget that may be a pearl of wisdom in a domestic violence situation. Here it is: Whenever you call the police to report your involvement in a domestic violence situation, you may be the person arrested by the police. That sounds easy enough, but people never consider the ramifications of summoning the police to their residence, while they are having an argument with a loved one that gets a little bit heated. Most people think that calling the police into a domestic situation will result in the police asking the other party to leave for the night. That is simply not true where there are visible signs of violence.
This article is for informational and educational purposes only and should not be construed as constituting legal advice. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.
Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida