If We Were Both Fighting, Why Was I the One Arrested for Domestic Violence?

More often than not, if police in South Florida are called to a scene for alleged domestic violence, someone is getting arrested. That doesn’t always mean someone will get convicted. But it can seem unfair when two people are involved in a fight that only one walks away in handcuffs.

It’s important to understand why law enforcement officers approach these cases the way they do, and how you can protect your rights and best interest

When police or deputies arrive on scene to a domestic disturbance call, they’re often tasked with trying to piece together what happened - often with conflicting information from both parties. They’ll look at any fresh injuries, marks, or bruises. They’ll take note of any prior calls to that location or past convictions for similar offenses. They’ll try to obtain statements from any third-party witnesses. And then they have to make a judgment call on who more than likely was the main aggressor.

Whether they make the right call is then up for debate in the courts. What we can say as Fort Lauderdale domestic violence defense lawyers is their track record isn’t perfect. Domestic violence charges should never be taken lightly. But the good news is that an arrest does not mean your future is set in stone. There are many ways an experienced defense lawyer can work toward having the penalties and charges against you reduced - if not dismissed altogether.

Although the goal is to arrest the “primary aggressor,” that isn’t always what happens. Sometimes, both people claim the other “started it,” and then police arrest the person they think is more than likely to blame. That may not necessarily reflect the facts of the situation - particularly when there is more time to parse through all the details.

Police are usually the first responders on scene to a domestic violence call, particularly if it’s made through 911 dispatch.

Although there is a presumption that police are always going to arrest someone - and most likely the male half (at least in heterosexual relationships) - it really depends on the circumstances. Evidence of battery or a physical attack in a domestic violence situation will usually result in at least one arrest. But arrest is also possible if there is evidence supporting a reasonable belief of assault, which per F.S. 784.11 is an intentional, unlawful threat by word or act to do violence to another person coupled with an act that creates a well-founded fear that such violence is imminent.

Police in Florida are not mandated to make an arrest if they respond to a domestic violence call. However, it’s rare that they don’t. The Sunshine State gives broad decision-making authority to the officer. F.S. 741.29 requires law enforcement to investigate incidents of domestic violence like they would any other crime, and make an arrest if there is probable cause to believe a crime has been committed.

However, there are a few distinctions in the way officers handle domestic violence calls as opposed to other crimes. As noted by The Florida Sheriffs’ Association, “a physical arrest must be made if there is probable cause. A NTA (notice to appear) is not appropriate if there is a domestic violence call.” Also, refusal to prosecute forms are also not allowed to be used in Florida domestic violence cases. Lastly, if either the victim or the arrestee have minor children, police are required as a matter of policy to contact the Florida Department of Children and Families (DCF) about the incident - even if the kids didn’t witness the events leading up to police response.

Sometimes, officers will arrest multiple people at a scene of suspected domestic violence. This is called a “dual arrest.” However, as a matter of policy and pursuant to F.S. 901.15(7), officers are strongly discouraged from making dual arrests. Instead, they are encouraged to determine who was the primary aggressor. That’s why despite the fact that you were both fighting, it’s likely only one of you is probably going to end up going to jail.

Where an investigating officer has probable cause to believe two or more people committed a misdemeanor or felony crime of domestic violence, they’re tasked with determining who was the primary aggressor. According to the law, “Arrest is the preferred response only with respect to the primary aggressor, and not the preferred response with respect to a person who acts in a reasonable manner to protect or defend oneself or another family or household member from domestic violence.”

In considering who is the primary aggressor, police are going to look at:

• The extent and nature of injuries both people have sustained (if any).
• The perceived credibility of each person.
• The criminal history of each individual (particularly if one has a history of domestic violence).
• Any obvious fear or danger by the victim.
• Whether any children were harmed or impacted.
• Any existing injunctions or no contact orders.
• Witness statements.
• Any other relevant facts.

According to research by the National Institute of Justice, only about half of domestic violence defendants in dual arrest cases are ultimately convicted. This is most likely because those cases often contain a lot of conflicting evidence, and officers weren’t able to clearly identify who the primary aggressor was. It often doesn’t get much easier for prosecutors to do so as the case progresses through the justice system.

Even if they don’t make an arrest, the officer must submit a fair amount of paperwork on the incident. That includes a written report on the incident with a detailed description of any physical injuries observed, a statement indicating the legal rights/remedies of which the victim was informed, and the grounds they had for not arresting anyone. Whenever possible, they’re also expected to obtain a written statement from the victim and any witnesses - and then send a copy of that report to a local domestic violence center. The Arresting Officer’s Judgment Isn’t The Last Word

The bottom line is that police officers are responsible to quickly make a decision in domestic violence cases based on the facts as initially presented. Those don’t always bear out in the end. Hiring an experienced domestic violence defense attorney as soon as possible is your best chance to minimize the impact the incident is going to have on your life.

If you have been arrested for domestic violence in Broward, Miami, or Palm Beach Counties, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.