When Domestic Disputes Turn Criminal was last modified: November 26th, 2019 by Howard Iken
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When Domestic Disputes Turn Criminal

Tom Lemons:

Domestic violence affects people of all ages, gender, races, religions, sexual orientation, and socioeconomic backgrounds. When relationships begin to fail, emotions may run high, which often leads to threatening behavior or acts of violence. Depending on the severity of one’s actions, the consequences could result in civil action or criminal charges. Ayo and Iken Attorney Howard Ellzey is here with us today and he’ll give us some insight into what things to avoid and what to do if you are accused of domestic violence. I’m Tom Lemons and this is the Ayo and Iken Report.

So we have Attorney Howard Ellzey here with us today. Howard, how are you?

Howard Ellzey:

Doing well. Good to see you Tom.

Tom Lemons:

Great. So listen, today we’re here to talk about the criminal aspect, how it pertains to family law. You do a little bit of that, right?

Howard Ellzey:

Yeah, a little bit. Yeah.

Tom Lemons:

Okay, great. So one of the first things that I want to talk about with you is we’ll start with the civil issues because the majority of what you do is civil, right?

Howard Ellzey:

That’s correct.

Tom Lemons:

Divorces, custody, things like that. Right?

Howard Ellzey:

Correct.

Tom Lemons:

So let’s just say a family or a husband and wife or whatever is going through some disputes and they’re headed for a divorce, unfortunately, and one feels like they’re threatened or maybe there have been some threats in the relationship and one decides to go get a order of protection. Now, can you explain to our audience exactly what an order of protection is?

Howard Ellzey:

Well, the order of protection as we commonly refer to as an injunction in the civil context, there are a number of situations where a person, a spouse, a significant other, or even somebody that may not be necessarily dating, can obtain an injunction for protection against violence. So you were correct in pointing out that there’s a civil side and a criminal side and they’re not necessarily distinct from each other, and oftentimes they do go hand in hand. Sometimes you may have a criminal case that on the same act that the criminal case is based on, you would also have a domestic violence injunction in place for that same act.

Tom Lemons:

So if something happens, let’s say a battery actually occurs, the injunction is applied after that, correct? Or is it the other way around?

Howard Ellzey:

Well, it can be fairly contemporaneous, but it’s a separate process. And I do have to say that it doesn’t necessarily have to be an act that’s actually committed. It’s only that somebody has to make the accusation and have that accusation supported sufficiently for the violator to A, be arrested and then for that violator also to be the subject of the civil petition for injunction for protection against domestic violence.

Tom Lemons:

Could you just, just for those who may not understand what the injunction is, first of all, explain to them. Let’s say a woman wants to go down, she’s in fear of her husband or boyfriend. What do they do? Do they go to the Clerk’s office? What do they tell them? What will a judge accept? Those type of things.

Howard Ellzey:

Well, the way the process works is many times a victim can go to a Sheriff’s office or the courthouse and get the forms and prepare those forms practically on the spot and have that form or that petition to be examined by what’s usually called a Duty Judge. If it’s an emergency situation, evenings, weekends even, that the judge can make the initial review of that petition and what happens with the petition is the judge is not making a determination as to whether the act that’s described actually happened or not.

But if the act taken to be true arises to the level of being a situation where the petitioner is in justifiable reasonable fear of imminent harm from danger of domestic violence, the judge will look at those allegations and say, “If this is true, then the petitioner needs to be protected,” and then a temporary injunction will be put in place until the parties have a time to have a hearing to then evaluate the truth and falsity of those claims. And for the judge to make a determination as to whether that injunction should be made permanent or whether it should be denied or even dismissed.

Tom Lemons:

Right. And is this considered an ex parte order? Is that what they call this? If it is ordered that quickly.

Howard Ellzey:

Yes, the initial petition will be ex parte because the judge is making a determination pretty much on an emergency basis. And that’s why you have the initial granting of the petition. But then 20 days later, depending on the court’s calendar, it’s what’s called a return hearing. And that’s when the respondent, the accused, if you will, has the opportunity to be heard by the civil court.

Tom Lemons:

Okay. And then like you said, once they do have their opportunity to tell their side, both sides of the story and in front of a judge, and then a judge can either allow it to continue for a certain amount of time or maybe deny it, correct?

Howard Ellzey:

Correct. Or even be dismissed. If the parties appear or let’s say the petitioner doesn’t show up on the day of the hearing, then the court would dismiss it.

Tom Lemons:

Okay.

Howard Ellzey:

It can be possible that the judge would have the petitioner and the respondent present in the courtroom and allow the petitioner to say, “Okay, tell me what happened,” and the judge would be looking at the allegations in the petition. And it might be interesting sometimes that a respondent may not tell the same story or that the petitioner then now says a story that doesn’t rise to the level of what she initially alleged and if her allegations in front of the judge don’t arise to the level of demonstrating to the satisfaction of the court that the petitioner is in reasonable fear of imminent danger of harm from domestic violence, the judge can go ahead and dismiss it right there.

Tom Lemons:

Right.

Howard Ellzey:

Or if the petitioner says enough things, says the right things to say, “Okay, Mr. or Mrs. Respondent then what’s your side of things?” And then the court can then make a factual determination if the respondent has photographs, videotapes, witnesses, things like that. Then would rebut or refute what the petitioner says. The court can go by the greater weight of the evidence to then deny the petition after a hearing of the evidence and the determination of fact.

Tom Lemons:

Great. Great. So one of the biggest questions that I receive or I’ve heard people ask and there’s a lot of confusion, let’s say just when people go to the courthouse to try to apply for one of these. I think from what I understand is a lot of people, they don’t know what actually constitutes, what a judge will accept. So is there a general idea or a general set of rules where a judge will accept most cases or will deny most cases at the onset of applying for one of those injunctions?

Howard Ellzey:

Well, when you do the those in the courthouse, there’s a set of instructions that are very helpful and they set out what constitutes acts of violence. It could be hitting, striking, threatening, stalking, breaking things, killing a pet, kidnapping, threatening to kidnap, threatening to harm a family member. There’s all kinds of things that are specified in the statute in the instructions to describe what the court would consider an act domestic violence.

Tom Lemons:

Okay. So the judge has to look at those factors in the beginning to say whether it’s something that’s reasonable that he needs to hear further testimony or he can say it just doesn’t meet enough, have enough merit to it at that point to continue it.

Howard Ellzey:

Right. A judge might make the determination, this doesn’t arise to the level of domestic violence. This is maybe somebody that’s just coming in and making a complaint and it’s not really something that you would need to invoke the authority of the court for. Now, there needs to be an understanding that the judge that looks at this initial petition may not necessarily be and oftentimes is not the same judge who’s eventually going to hear.

Tom Lemons:

Right. And that’s what you referred to as a Duty Judge. Maybe someone that’s on during the weekend or after hours or something.

Howard Ellzey:

Exactly.

Tom Lemons:

Okay, great. And so now after that, moving onto the criminal aspect of things, let’s say a couple is at home, they get in a dispute, maybe someone actually hits the other person or they throw something at them, but they’re touched in a manner that they did not want. What is the clear definition of a battery, a simple battery? And then after that we’ll talk about the more serious incidents, but what can get a person arrested for domestic battery?

Howard Ellzey:

Well it can be sometimes pretty minor depending on the person. And depending on the officers that respond. Depending on what kind of history that the officers have had with these two people before. You might have, for example, an officer or officers, deputies being called out multiple times and they may end up telling the petitioner or the respondent or the husband and wife, “If we have to come out here again, somebody is going to jail.” So it may not be that serious an incident, but for the instances when they are serious, what can constitute a battery? It could be something as simple as you’re trying to go through the same door at the same time and somebody gets pushed or shoved. And depending on the sensitivities of the victim or the aggressiveness of the aggressor, then something like that could be sufficient.

There could be things, again, I said a whole list of potential instances that could constitute violence. And another example could be, okay, you pick up your significant other’s cell phone, and in a moment of anger you could smash it against the wall or the refrigerator and that’s destruction of property. Well, I mean, if you take those kinds of things and you combine it with some other things, you may have a set of, or series of incidents that would make the judge raise an eyebrow and go, “Yeah, this is kind of a violent situation here. And the perpetrator needs to kind of take walk.”

Tom Lemons:

Take a walk that time. Right. So the chrome bracelets go on and they’re taken away right?

Howard Ellzey:

Yeah. And I’m not really distinguishing between what a judge might do, but you’ve got officers on the scene. They’re going to make that determination as well.

Tom Lemons:

Right. But then due process takes over. It’s a little bit different than civil.

Howard Ellzey:

If you’ve got probable cause, that’s a little bit like, “Okay, are the allegations sufficient,” and the factual determination would come in front of a judge later on.

Tom Lemons:

Gotcha. Okay. So basically that explains to our viewers that basically a domestic battery could be almost anything. I mean if you touch someone without their permission, that could lead to someone’s arrest.

Howard Ellzey:

And you don’t even have to touch them. It’s just, they can be in reasonable fear that you might touch them or let’s say you cut somebody off with a vehicle, you block their exit. They can allege A, you tried to run over them, B, you committed false imprisonment, C, maybe you threatened to take the kids. And depending on how those kinds of situations are described on paper and then what kind of judge you’re going to go into, and then what kind of history do you have and then how the parties present themselves in court. There’s no black and white, even though the rules are in black and white on paper. By the time somebody is making the determination there, there’s really no definite way to predict exactly what a judge is going to do in a civil case or even in a criminal case.

Tom Lemons:

So basically a law enforcement officer who didn’t witness anything but has been given both sides of the story, let’s say at a situation, he has the discretion. Even if there’s no, maybe one didn’t claim they hurt the other or if it’s very minor, he has a discreption at that time. Discretion, sorry, to move forward with, like you said, if he has probable cause to take one person to jail.

Howard Ellzey:

Well generally the officer, in deciding whether he has probable cause, has to have some scintilla of evidence to support the allegations. For example, a black eye, a scratch, a broken bone or broken telephone, pictures, a witness, something like that to provide, again, a factual basis to support the allegation, the accusation. If there’s no mark on anybody, nobody saw anything, nobody’s got any evidence and nobody admits to anything, then oftentimes the officers are going to leave and not do anything and then maybe that’s when the comment comes in, “If we come back, somebody’s going to jail.”

Tom Lemons:

Right. I’m sure that most cases people are like, “Okay, that’s it. We don’t want the cops coming to our house again.” Right?

Howard Ellzey:

Right.

Tom Lemons:

So what is an example of some more serious, I mean just kind of defining it a little better, some serious things. And what are the charges that it could apply to maybe if there’s worse injuries that occur?

Howard Ellzey:

Well, depending on the injury or depending on whether or not it’s a domestic battery in a domestic situation, marriage or dating relationship or something like that, those kinds of things are a little more serious than the simple battery that you’re talking about. You might be getting into things like aggravated assault, aggravated battery, felony battery. You start using the F word felony, that’s going to be a lot stronger than something a little more minor. And it may not have a lot to do with maybe what the perpetrator did, but how the alleged victim responds to what the perpetrator did.

Tom Lemons:

Okay, okay. And now moving forward after that, let’s say now when a person is taken to jail, is there usually a bond or no bond in these cases?

Howard Ellzey:

Well, it depends. Generally a criminal defendant is going to be able to get bond, but if you’ve got a situation where the incident was relatively minor, perhaps the victim comes up and said, “Well, you know, it really wasn’t like what I said it was. It was only this much. I’d like the guy to get out. He has an important job. He works for the Department of Defense.” Who knows what kind of situation. It’s going to be in the judge’s discretion. This is going to be the initial appearance judge that’s doing only the bond hearing to make a determination as to whether there should be no bond, a low bond, or a high bond. It could be having something to do with the defendant’s history. Has there been domestic violence before? Is this alleged assault something that he threw a banana at her or did he try to run over her with a car?

Tom Lemons:

Sure, sure. So Howard, what happens if a person is convicted of either a misdemeanor or a felony charge of domestic battery?

Howard Ellzey:

Well, by definition a misdemeanor is going to be anything that’s going to be punishable by less than a year incarceration. Many times a conviction is a result of a plea. It could be, “Okay, well if I’m charged with felony, maybe I can plead out to a misdemeanor,” or, “If I’m charged only with the misdemeanor, maybe it’s my first offense. Maybe I can work with a prosecutor. I’ve got a good attorney. I’ve got facts that are not that horrible. I can take anger management and get a withhold of adjudication,” and maybe the victim if it’s a marital situation, is pulling back from the state attorney as far as the aggressiveness of wanting to really pursue the conviction. So there’s a lot of factors at play with respect to whether you’re going to have a penalty, whether you’re going to have a withhold of adjudication, whether you’re going to get by with probation, whether you’re going to have anger management.

Then you got other situations that if they’re going to be more serious, they arise to a felony level. And let’s say the behavior is pretty egregious and you’ve battered somebody on multiple occasions, you’ve got a history and you got the kids involved. You’re looking at something more than a year in custody with the Department of Corrections. It could be up to five years, depends on how many offenses you’ve had. So if you’ve got multiple, if you’re a repeat offender, that penalty is going to get higher and higher each time.

Tom Lemons:

And of course that doesn’t include if it’s an attempted murder or a murder, a homicide in general or the use of a firearm. These could increase the penalties substantially.

Howard Ellzey:

Substantially. Absolutely.

Tom Lemons:

Okay. So Howard, how does this affect the children that may be between the parties and what other sanctions or effects can this have on a defendant in a case if they are charged with a battery or … Long lasting effects to these incidents?

Howard Ellzey:

Well, that’s one of the concerning things about the blend between family law and domestic violence and criminal law. When you have a spouse who may have acrimony toward their domestic partner, their husband, their wife, the children are stuck in the middle. Oftentimes there’s custody argument going back and forth. And when the opportunity to make or raise a domestic violence claim occurs, that’s going to be used against one of the parties. And I’m just going to pick a dad, for example, who’s going to be the accused in the situation. And let’s say that this dad has been a good dad. He works, he comes home, all he wants is to to see his kids. He wants to get this divorce relationship over with, get this divorce over with. But then all of a sudden now we’ve got these criminal charges, we’ve got the danger of in domestic violence and now he’s looking pretty bad.

Tom Lemons:

Let’s say a criminal charge does come along and how does this affect children the couple may have in common and what are some of the implications after it’s over? And then there’s also something called the Red Flag Law. And then there’s also an issue that pertains to owning or possessing firearms. Can you just give me an in general on the children issue and then how the other others-

Howard Ellzey:

Let me see if I can untie all that.

Tom Lemons:

Yeah, sure. Big question. Sorry about that.

Howard Ellzey:

So when you’ve got children involved that’s going to be many times in the context of divorce or custody proceedings. And what I would advise a client of mine who maybe has found himself in that situation is to think very carefully about everything that they do. Don’t let their emotions get the best of them and lead them into taking a bad action that’s going to really cost them. If they’re feeling emotional about their kids and they want to see their kids and they’re missing their kids, it’s not really smart to be able to then do something foolish that’s going to prevent you from seeing your kids.

But there’s another part of that too, that sometimes when a parent is in the middle of a divorce proceeding and now this criminal case has come along and they’re just absolutely terrified of the criminal aspect of things and all they want to do is get the case over with, then they might go ahead and plead guilty to say, for example, a misdemeanor, agree to take anger management class, get the divorce over with, well, guess what? That’s one strike.

If you pled guilty, then maybe it wasn’t that big a deal. But you have to know that domestic violence cases don’t come off of your record. So if something comes along later, truthfully or falsely, there’s another accusation, now you’ve got one on your record and if you get convicted, that’s two. Or if you’re appearing for a second charge, now you’ve got a history. You’re going to be seen in a totally different light.

And that also relates to the other thing that you talked about with respect to the Red Flag Laws. Once you’ve got that misdemeanor conviction for throwing a banana at somebody maybe, who knows what it was, you’re going to end up being able to go into a gun shop and do your application and find out that you’ve been rejected from being able to own a firearm because now you are a convicted domestic batterer.

Tom Lemons:

Wow. So in essence, this is the one opportunity or the one situation in which a defendant who may be thinking they’re just getting something over and getting it passed just to not waste a lot of time, get back to their kids.

Howard Ellzey:

Trying to save money.

Tom Lemons:

Trying to save money, right. Could end up having the same consequences as a convicted felon and never be able to own a firearm again.

Howard Ellzey:

Well yeah, they could inadvertently shoot themselves in the foot by trying to make a good decision when it’s not really an informed decision.

Tom Lemons:

Right. Let me ask you this too, because I know there’s conflicting information about these issues, but does it seem to you as someone who’s worked in family law and dealt with the criminal side of things, do you find that sometimes people will use and abuse the system both in a civil manner and in making false accusations of domestic batteries to get an edge on their divorce or their custody battle?

Howard Ellzey:

Yeah, it happens all the time. The domestic violence statutes are designed to encourage a victim to come speak up. There’s very little harm that’s going to come to somebody that makes a false accusation because the courts don’t want … There can be a chilling effect against somebody who’s going to be afraid to come forward when domestic violence is really happening.

Tom Lemons:

Sure.

Howard Ellzey:

So we have to make certain that when somebody is a victim that they do come forward. You don’t have to have an attorney to make a domestic violence claim against somebody in the civil court in order to have have it granted.

Tom Lemons:

Right. So then that is something that people need to be aware, all the aspects. And probably, I mean you would absolutely suggest it if someone’s facing these issues, number one, they should probably, if they feel like something’s about to happen, get out of the situation, right?

Howard Ellzey:

Get out of the situation, avoid the situation. Don’t pass too closely in the hallway. But these are difficult things to try to tell somebody what they should do in all situations. Because every situation is a little bit different. There’s personalities involved. If I’ve got a client that comes in and he’s about to go through a divorce or she’s about to go through a divorce and the client asks me, “Do I need to move out of my house,” I’m not necessarily going to be able to give that person the exact answer that they need to hear. It depends on financial ability of the client. Depends on the history of the case. Are there other child issues involved? So there’s not a pat answer as to what things should be answered by the attorney with respect to a general description of all domestic violence cases.

Tom Lemons:

Right. Okay. And then Howard, so how many years have you been practicing law?

Howard Ellzey:

Since 2007.

Tom Lemons:

Okay, so you’ve seen quite a few cases.

Howard Ellzey:

Well what’s interesting Tom, is that in 2007 you can look at me and tell I’m a little bit older. I didn’t start law school until I was 38 years old. And the reason that I went to law school is because I have a first marriage. In that first marriage, there were some of these issues that you and I are talking about. For example, I didn’t know that pulling in front of somebody with your vehicle constitutes aggravated assault with a deadly weapon. I didn’t know what battery is. I didn’t know how the legal process worked.

And I was quite turned off by attorneys, by the courts, by police officers, and by what can happen with a father and their children. And so all of the things that happened to me then are what led me to pursue the opportunity to go to law school. And here I am today with a goal toward helping people get through these situations. Not to let lack of knowledge on them, not to let emotions get the better of people, but to be objective, to be smart, stay out of trouble, make good decisions and be a good parent.

Tom Lemons:

Right. So someone would probably really benefit from having an attorney like you who has a passion for these issues and really someone who wants to, like you said, educate a person as much as you want them to win the case. Right?

Howard Ellzey:

Well here, here’s what I tell many of my potential clients when I meet them the first time. Some types of clients may not like this approach, but this is my approach. The truth is your friend, you want to use the truth, you want to tell the truth. The rules of procedure and the court process is there for a reason. And when you use it to work it the way it’s supposed to work with an ethical attorney, you should be able to get the kind of protection that you need from the system. If you are on the receiving end of some false allegations, again, we use the truth and we use the process to protect you if you’ve been falsely accused.

Tom Lemons:

And so you would definitely advise anyone, even if it’s not you or someone here with the Ayo and Iken Law Firm that you would definitely advise getting an attorney one way or the other if they’re facing criminal charges or going to court for a divorce.

Howard Ellzey:

Well that’s kind of tough Tom, because I know in our community there are some attorneys out there, I think I use the word ethical.

Tom Lemons:

Sure.

Howard Ellzey:

Before. I’m sorry to say this about the profession, but just because somebody is an attorney doesn’t mean that they’re going to have your best interest at heart or the children’s best interest at heart.

Tom Lemons:

If you want to know more about Howard Ellzey here at the Ayo & Iken Law Firm, go to our website at www.myfloridalaw.com and you can read more about Howard, his bio is there on the page, and learn more about the law firm in general. So Howard, did you have anything else you’d like to tell our viewers before we go?

Howard Ellzey:

Well, I would just say that when you’re going through these stressful situations, whether it’s divorce, you’ve got high conflict, you’ve got tension, sometimes you need to put your emotions on the back burner. Don’t let your emotions take charge. But think of the best interest of yourself in the future and the best interest of your children that deserve to have two parents.

Tom Lemons:

Because that’s the most important thing in any situation.

Howard Ellzey:

Always. Even an attorney’s obligation is to the best interest of his client. The only exception to that in family law, the only thing that comes ahead in the best interest of the client is the best interest of the children.

Tom Lemons:

Right. Well Howard, it was a real pleasure having you here today. So I look forward to having you on again sometime.

Howard Ellzey:

Thanks Tom.

Tom Lemons:

Great. Thank you.

Helped me out completely…made my life a lot easier… Best of all Jason Ponder was 100% honest throughout the whole process & did everything based on what I really needed instead of just breaking the bank… Will definitely recommend him to any & everyone!!

Shawn – Avvo

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