In short, the answer is legally no, but indirectly yes.
First of all, important to note is what exactly is domestic violence. In Florida, Domestic Violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. Florida Statutes 741 and specifically 741.28 define domestic violence in Florida.
Oftentimes, after an arrest is made and tempers are cooled, the alleged victim in a domestic violence case recants his or her testimony, meaning he or she decides they no longer want to press charges. But, do they really have the power to do that?
Even though a victim may not want to press charges, this is technically not their decision to make. The reason being is that the domestic violence offense allegedly committed by the defendant is an offense against the laws of the State of Florida. Therefore, the State of Florida is the ultimate decision maker. If the State of Florida determines, based upon an analysis of the evidence surrounding the crime, whether or not it wants to pursue charges against the defendant.
Oftentimes, the State of Florida chooses to “no action” (not formally charge) when a victim refuses to cooperate with the State of Florida. A refusal to cooperate is the victim’s unwillingness to meet with the prosecutors for pre-trial interviews or to attend necessary evidentiary hearings pre-trial or at trial. The State of Florida is almost forced at times to no action or dismiss the charges because the main witness, the victim, is not available. The exception being is that the presence of other witnesses to the crime or other evidence that can prove the domestic violence crime without the necessity of the victim’s cooperation or appearance in court.
Generally speaking it is very damaging to the State of Florida’s case if the victim does not cooperate which is why I stated earlier that, indirectly, the victim does have the power not to “press charges” against the Defendant. My advice to all my clients, however, is never to solely rely on the fact that the victim will not cooperate. For the reasons stated above, sometimes the State may still be able to prove the case against a defendant even without the victim.
If you are charged with domestic violence in Miami , it is best to hire an experienced Miami criminal defense attorney to best represent your needs.
Marcia Giordano Hansen is an attorney practicing exclusively in the South Florida area. She has been practicing criminal defense for almost 20 years. Contact her at 305-777-0474 or [email protected]. Visit her website at www.thehansenlawfirm.com or www.marciahansenlaw.com
