Updated: September 12, 2022 by Sean McQuaid
After an arrest for domestic battery in Pinellas County, the judge will order no contact with the alleged victim. If you can’t have contact and you lived with the victim at the time of the arrest, this means that you can’t go home. You can’t even go home even if you own the home or are the sole person on the rental agreement. I know that doesn’t sound fair, but that is the law.
In some cases, the no contact is crippling because you have no idea if the victim wants to prosecute, you have no way to apologize, and you have no idea what is being said about you. Likewise, the victim in the case may want to have contact, but has no idea about the process and the risks in doing so. The purpose of this article is to address lifting the no contact order after a domestic battery arrest. As a criminal defense attorney, I am asked this question in every single case.
What is a No Contact Order?
There are two types of no contact orders- one as a condition of release from jail and the other is an injunction (also known as a restraining order). Sometimes a person is arrested and ordered to have no contact and the victim goes out and also obtains a domestic violence injunction. This creates two no contact orders at the same time! But, for this article, I am only addressing the no contact that is ordered as a condition of release from jail. This can be ordered whether the defendant has to post a money bond or the release is ROR (Released on Own Recognizance). ROR is actually common for defendants with no prior record, but the no contact part of the release is the biggest problem.
No contact means that you cannot directly or indirectly contact the named victim in the case. Direct contact means that you cannot call, text, send a social media message, or communicate in any way. This even means liking posts on social media. Indirect contact means that you cannot have someone else pass a message to the victim for you.
Who Does a No Contact Apply To?
The no contact order only applies to you. It does not apply to the victim. I understand that this may not make sense, but that is how it works. The victim cannot get in trouble if he or she contacts you. But, you can get in trouble if you respond! This is a very common situation. My advice is that if the victim calls you, you may answer, remind them that there is a no contact order and refer their questions to your lawyer. If the victim sends you a message via text or any other electronic method, you can read the message, but you cannot message back. As soon as you send a written response, you have violated the no contact order. That means that your bond/ROR can be revoked and you have committed a new crime.
Now, the one person on your side who is not subject to the no contact order is your criminal defense lawyer. Most people have no idea about this exception to the order. Because the victim is a witness in the case, a lawyer is permitted to contact that person about the case. If the prosecutor can speak to the victim, your lawyer should be able to also, right? Contacting the victim immediately about the case is one of the most important tools that your lawyer can use in your defense.
What is the Procedure to Get the No Contact Order Lifted?
A no contact order can only be lifted if the victim asks for it. It is the victim’s motion, not the defendant’s. A victim has to contact the judge’s assistant, get a court date and appear in court. The judge hears from the victim first. The victim will be placed under oath and asked what happened in the incident. The judge will be looking at the allegations in the arrest affidavit to see if the stories match up. If they do not, both the judge and the prosecutor will cross examine the victim. If the victim lies or tries to cover for the defendant, the motion for contact will be denied. It is an extremely stressful and intimidating situation for any victim. Because of the pressure and types of questions, it often causes the victim to admit under oath that a battery occurred. The judge will also ask about other incidents of violence between the couple and if the victim is in fear. The judge will then make a decision. Sometimes, the judge will allow contact, but only after the defendant completes several weeks of anger management.
Should You Ask For Contact?
I am always hesitant about putting a victim in front of a prosecutor and judge under oath while a case is pending. There is a lot of risk and not a lot of reward involved. You might win the battle, but lose the war-meaning you might get the no contact lifted, but walk yourself into a conviction for domestic violence. Most victims cannot take the pressure of the questioning and actually do the case more harm than good. Once the victim is under oath saying incriminating things, the case is over. The victim cannot change or modify a story because he or she will be then threatened with perjury!
My advice is to not ask for contact while a case is still under investigation. In other words, I discourage asking before a formal charge is filed. The prosecutor has up to 90 days for a misdemeanor and 175 days for a felony to make a charging decision. The time after the arrest and before the charge is filed is called the investigation period. This is when the prosecutor is deciding whether to file a formal charge. So, if you walk in there and hand the prosecutor incriminating testimony under oath from the victim, what do you think the prosecutor is going to do?
Now, there are exceptions. There may be a case that is so minor that we want to bring it to the court’s attention. Or, maybe we know that guilt is going to be easy to prove, so we are just trying to make the situation as easy as possible. Or, there may be an emergency that requires contact. And, sometimes, I meet a victim who is so tough that they cannot be rattled under questioning. But, all of these situations are exceptions, not the rule. Ultimately, you and your lawyer will have to make a decision that is right for you.
Contact a Criminal Defense Attorney
The best strategic move you can make in a domestic battery case is to hire a lawyer as soon as possible. I know this advice sounds self-serving because I am a lawyer, but it is correct. Having your lawyer able to contact the victim is a huge advantage for your case. Your lawyer will be able to speak to the victim before the prosecutor, which can really help shape the direction of the case. Your lawyer will also be able to advise you about whether you should be doing anything proactively, like getting counseling for drinking or anger management. Taking an extra step of two may be what convinces the prosecutor to drop the case.
The first couple weeks after a domestic battery arrest are the most important, so please do not sit back and wait. Is it not true that all you have to do is wait for a court notice. If you do that, you will have missed a vital opportunity to get your case dismissed! If you have any questions about what you should do, I encourage you to call me. My consultations are always free of charge, so there is no risk in getting some free advice. Best of luck to you during this difficult period.