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A law firm helping people defend against false accusations of domestic violence in Sarasota and Manatee Counties


A misdemeanor domestic battery is defined as the actual and intentional striking or touching of a family or household member without their consent.  How it differs from a regular misdemeanor battery is that in a domestic battery the alleged victim and offender are family or household members.



From a Defense Perspective: A "Behind The Scenes" look at a flawed domestic battery case as it moves through the criminal justice system.

Law Enforcement Investigation

The police respond to domestic battery calls on edge.  These have proven to be among the most dangerous.  They attempt to find out what happened when it is often unclear.  Sometimes, unfortunately, an arrest is made not because they are sure of who is entirely guilty, but to defuse the situation.

Arrest Of

The Defendant

Was there an adequate investigation?  Did the police talk to all of the witnesses including defense witnesses?  Sometimes not.  A hasty arrest can lead to the wrong person being arrested.

The State Attorney's Pre-Filing Investigation

The prosecutor receives the case from the police and begins to investigate by calling witnesses brought to their attention by the police.  The most well meaning of prosecutors can sometimes make the wrong decision simply because they are not aware of all of the evidence in the case. 

An Information

is Filed

Based on the pre-filing investigation, the prosecutor has decided that there is probable cause to believe a crime was committed.  The filing of an Information is the state officially bringing charges.

A Capias Warrant

is Issued

If the person has not already been arrested, there will likely be a warrant issued for their arrest.  The arrest

opens the case and begins the prosecution of the defendant.


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For information on regular, non-domestic battery, please see our Assault and Battery page here.


What is the legal definition of a “family or household member”?

  • A wife or husband or ex-wife and ex-husband, or persons related by blood or marriage,

  • Persons who are presently living together as if a family,

  • Persons who have a child together, regardless of whether they have been married.


*With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.


That definition is very important because if a battery is legally categorized as a domestic battery there are mandatory punishments that Florida law says must be imposed. Also, prosecutors (and sometimes judges) tend to deal more harshly with domestic battery cases than with regular battery cases.


What is the punishment for misdemeanor domestic battery?


The maximum punishment for a misdemeanor domestic battery is up to one year in the county jail.  A judge can also impose up to one year of probation or a combination of jail and probation not to exceed one year.


Also, if a person is found guilty of, has adjudication withheld on, or enters a plea to a crime of domestic battery the judge must order that the defendant attend and complete a Batterers’ Intervention Program (CBIP) as a condition of probation. 

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How to get a domestic battery dropped?

Getting a charge of domestic battery dropped in the State of Florida means convincing a prosecutor or a judge to drop the case.  It is often considered easier to get a case dropped earlier in the process (typically before the state as officially filed charges or before an information is filed) rather than later (after an information is filed). 


Pre-Filing Investigation - will the prosecutor go forward or not?

The prosecutor, when receiving a domestic battery case for the first time from law enforcement, will begin an investigation called a Pre-Filing Investigation (PFI).  During the PFI the prosecutor will try to find out what happened, usually by speaking to witnesses (law enforcement, civilian witnesses, and the victim).  The prosecutor does not call the defendant during the PFI.


Law Enforcement can be biased

If the defense has valuable information or exculpatory information (info that tends to prove that one is innocent), during the pre-filing phase of the investigation is an excellent time to bring this information to the attention of the prosecutor.  Unfortunately, law enforcement often does not bring the defendant’s side of the story to the attention of the prosecutor. 


Law enforcement will sometimes ignore defense witnesses

Oftentimes law enforcement will refuse to allow witnesses favorable to the defense to even fill out written statements!  I have heard time and time again from defense witnesses that law enforcement did not allow them to complete written statements on the scene. 

When this happens, it can be extremely important that the defense witnesses are brought to the attention of the prosecutor early on by the defense attorney so that the prosecutor can make the appropriate decision whether to file charges, or not, after hearing the “other side of the story.”


What else may convince a prosecutor to drop charges?

Sometimes a prosecutor will decide not to file an information if, after speaking with a victim, there is something said that convinces the prosecutor that:


  • it is not in the state’s best interest to proceed,

  • there is a question whether the case can be proven beyond a reasonable doubt, and/or

  • the victim is reluctant to cooperate with the state and prosecute the defendant.


Defenses to Domestic Battery


  • Self Defense

If one is in fear of imminent bodily harm, they have a right to defend themselves.  Imminent, in this context, essentially means immediate physical danger.  Sometimes the success of a self-defense case will turn on whether the danger the defendant was facing was actually imminent.


  • Defense of Others

A person has the legal right to defend another person if the other person is at risk of imminent bodily harm.

  • Mutual Combat

When two people mutually decide to square off and fight each other, a battery is not committed.  Essentially, by agreeing to fight, the individuals are consenting to bodily contact.


  • An Angry and Vindictive Victim

An angry or spited alleged victim, such as an ex, has every reason to lie to law enforcement and concoct a story for revenge.  In these cases, it is essential to contact an attorney as soon as possible so that the attorney can launch an investigation (find witnesses, find surveillance video footage, photograph defensive injuries, etc.).  The more time that goes by, the more chance that it will be difficult, if not impossible, to gather witnesses and evidence.

  • Lack of Injuries and/or Inadequate Evidence

If the prosecutor is convinced that the evidence that the state has is simply not enough to prove a case beyond a reasonable doubt and/or defense evidence presented to the prosecutor contradicts law enforcement’s version of events, the prosecutor may decide to drop the case.


  • An Unwilling Victim

Prosecutors are much less likely to proceed with a case if the victim is not on their side.  A prosecutor ultimately has to prove a case to a jury.  It is much easier for them to do this if they have a cooperating victim.


  • Did the victim sign a waiver of prosecution?

A waiver of prosecution is an affidavit (a sworn to and notarized document) stating that, among other things, the victim does not wish for the defendant to be prosecuted.  Although a waiver of prosecution does not force a prosecutor to drop a case--it can be very influential--as the alleged victim is essentially stating that they do not wish to proceed. 

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