Understanding Who Initiates Charges and Why You Need a Florida Domestic Violence Defense Attorney to Fight Back
As a Florida criminal defense attorney, I've handled hundreds of domestic violence cases across the state. One of the most common questions I hear is: "Who can actually file domestic violence charges in Florida?" The answer surprises many people—and it could change the entire direction of your case.
If you've been accused of domestic violence, you need to understand how the process really works, who makes the charging decision, and why hiring a private criminal defense lawyer as soon as possible can protect your freedom, your reputation, and your future.
Who Has the Power to File Domestic Violence Charges in Florida?
Let's get this straight: in Florida, it's not the alleged victim who files domestic violence charges. That power belongs to the State of Florida through the State Attorney's Office. While law enforcement may make an arrest based on probable cause, the prosecutor makes the ultimate decision to file formal charges—even if the alleged victim wants to drop the case.
This is critical. Many people assume that if the alleged victim recants or refuses to press charges, the case will go away. That's not how the system works. Once the police respond to a domestic violence call and make an arrest, the case belongs to the government. Prosecutors can, and often do, proceed even without the cooperation of the alleged victim.
Under Florida Statutes § 741.28(2), "domestic violence" includes a wide range of offenses committed by one family or household member against another, such as:
- Assault or aggravated assault
- Battery or aggravated battery
- Sexual assault or battery
- Stalking or aggravated stalking
- Kidnapping
- False imprisonment
The legal system is designed to protect what it perceives to be vulnerable victims. But that same system often treats the accused unfairly. You need someone in your corner who understands how to challenge weak evidence, confront false allegations, and hold the state to its burden of proof.
Relevant Florida Statutes and What They Mean for Your Case
Here are the key statutes that apply in domestic violence cases in Florida:
Florida Statute § 741.28 – Definitions
This statute defines "domestic violence" and outlines the types of relationships that qualify, such as:
- Spouses or former spouses
- People related by blood or marriage
- People living together as a family (past or present)
- Parents who share a child, regardless of marital status
Florida Statute § 741.29 – Domestic Violence; Investigation of Incidents
This section requires law enforcement to write a report when responding to a domestic violence call, even if no arrest is made. Officers are also encouraged to make an arrest if they believe probable cause exists.
Florida Statute § 741.30 – Injunction for Protection Against Domestic Violence
This law outlines how a person can request a restraining order (injunction) against another. This is a civil remedy—not a criminal charge—but violating an injunction is a separate criminal offense.
Florida Statute § 784.03 – Battery; Felony Battery
This statute defines simple battery as an unwanted touching or striking and notes that a second conviction is automatically treated as a felony, even if it would otherwise be a misdemeanor.
What Happens After a Domestic Violence Arrest?
If you're arrested for domestic violence in Florida, you will likely be held in jail without bond until you appear before a judge. The court may issue a "no contact" order with the alleged victim, which means you can't return home, even if that's where you live.
From there, the State Attorney's Office will review the police report, witness statements, 911 recordings, and any physical evidence. Based on that, they'll decide whether to file charges, reduce the charge, or drop the case entirely.
Many times, I've been able to step in before charges are even filed and convince the prosecution not to move forward. That's one of the key benefits of hiring a private defense attorney early in the process.
Why a Private Florida Domestic Violence Defense Attorney Can Change Everything
If you're depending on a public defender or waiting to "see what happens," you're gambling with your freedom. Prosecutors don't drop domestic violence cases because you ask nicely. They only back down when the facts don't support the charges or when their evidence is too weak to win in court.
As a private attorney, I get to work right away:
- Interviewing witnesses
- Collecting surveillance footage or text message records
- Gathering statements that support your defense
- Challenging the prosecution's evidence before charges are filed
- Working directly with the prosecutor to fight for charge reductions or dismissal
You need someone who can act fast. The earlier we get involved, the better your chances of avoiding a conviction that could impact your job, your housing, your custody rights, and your immigration status.
Common Legal Defenses in Florida Domestic Violence Cases
Not every arrest leads to a conviction. There are several legal defenses that may apply, depending on the facts:
Self-Defense: If you were trying to protect yourself or another person from harm, the law gives you the right to use reasonable force.
Mutual Combat: When both people engage in physical conflict, it may be impossible to determine who the primary aggressor was.
False Accusations: Sadly, domestic violence charges are sometimes used to gain an advantage in a divorce, custody battle, or out of jealousy or revenge.
Lack of Evidence: The state must prove every element of the crime beyond a reasonable doubt. Without physical evidence, injuries, or credible witnesses, their case may fall apart.
Stand Your Ground Law (Florida Statutes § 776.012): In certain cases, you may be justified in using force, including deadly force, if you reasonably believe it was necessary to prevent imminent death or great bodily harm.
Every case is unique. That's why I take the time to understand the full picture—your relationship history, the timeline of events, and what really happened—so we can build the strongest possible defense.
Real Case Example: Charges Dismissed After False Accusation
One of my clients, a working father of two, was arrested after his estranged wife accused him of slapping her during a custody exchange. There were no injuries and no witnesses. But based solely on her accusation, he was taken to jail, issued a no-contact order, and forced out of his own home.
He hired me the next day. Within a week, I gathered text messages and emails showing she had threatened to accuse him if he didn't agree to her custody demands. I interviewed a neighbor who witnessed the exchange and confirmed that nothing violent occurred. I brought that evidence directly to the State Attorney's Office before they filed formal charges.
Result: The case was dropped. No charges. No criminal record. No probation. No classes. He was able to return home and continue his life.
That's what a private attorney can do—protect your rights before the damage becomes permanent.
Penalties and Collateral Consequences of a Domestic Violence Conviction
Even a misdemeanor domestic violence conviction can ruin your life. Under Florida law, penalties may include:
- Up to one year in jail for a misdemeanor
- Felony charges carry up to five years or more in prison
- Mandatory batterers' intervention program (minimum 26 weeks)
- Minimum 5-day jail sentence if bodily injury occurred
- No sealing or expungement of the conviction
- Loss of gun rights
- Immigration consequences for non-citizens
- Difficulty finding employment or housing
Don't wait until it's too late. Once a conviction is on your record, there is very little anyone can do to remove it.
Florida Domestic Violence Defense Attorney – FAQs
Who decides whether domestic violence charges get filed in Florida?
Only the State Attorney's Office has the power to file formal charges. Even if the alleged victim asks the prosecutor to drop the case, the state may still proceed if they believe there's enough evidence.
Can the alleged victim drop the charges?
No. That's one of the biggest myths. Once law enforcement is involved, the decision to charge belongs to the prosecutor. The alleged victim can express their wishes, but the state does not have to follow them.
What if the person who called the police lied?
If we can prove that the accusation was false, we can push for dismissal. Evidence like witness statements, text messages, or video footage can make a huge difference. I've had many cases dropped after uncovering inconsistencies or motives for false claims.
Will I go to jail if I'm convicted?
Not always—but jail time is a real risk, especially if injuries were involved or you have a prior record. That's why it's critical to have an attorney who can fight for reduced charges, probation, or a diversion program when appropriate.
Can I still own a firearm after a domestic violence conviction?
No. Federal and Florida law both prohibit anyone convicted of a misdemeanor crime of domestic violence from owning or possessing firearms. This is a lifetime ban and one of the most serious consequences.
Is there a way to keep the charge off my record?
Yes—if the case is dropped, dismissed, or you complete a diversion program, you may be eligible to have your record sealed or expunged. But if you're convicted, the record is permanent.
How soon should I hire a defense lawyer?
Immediately. The sooner I can get involved, the better chance we have of preventing charges, negotiating with the prosecutor, and collecting evidence that supports your defense.
Do I still need a lawyer if this is my first offense?
Absolutely. First-time offenders still face serious consequences, including jail time and a permanent criminal record. Judges and prosecutors don't treat domestic violence cases lightly, even if it's your first run-in with the law.
Call a Florida Domestic Violence Defense Attorney Today
If you've been arrested or accused of domestic violence, your freedom and reputation are at stake. These charges are serious, and the state is already building its case. You deserve someone who will fight just as hard for you.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
Musca Law, P.A., has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have over 30 office locations throughout the state of Florida and serve all counties in Florida, including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and the Florida Panhandle.