Can the alleged victim drop domestic violence charges in Florida?

This is the most common question after a domestic arrest, usually asked by the person who called the police, or by the person arrested on that person's behalf. The answer comes from section 741.2901 of the Florida Statutes and from how each South Florida State Attorney's office handles requests to drop. For how Mr. Mead approaches these cases, see our domestic violence defense page.

Who decides, step by step?

1. The arrest. An officer with probable cause may arrest without the alleged victim's consent (s. 741.29(4)).
2. Assignment. The case goes to prosecutors who specialize in domestic violence (s. 741.2901(1)).
3. The victim's input. A victim advocate contacts the alleged victim; in Palm Beach County the State Attorney says this happens within the first 24 hours.
4. A request to drop. The alleged victim can tell the prosecutor he or she does not want the case to go forward; in Broward, the State Attorney calls this a waiver of prosecution.
5. The State's decision. The specialized prosecutor decides whether to file, not file or divert, "over the objection of the victim, if necessary" (s. 741.2901(2)).
6. The court. If charges are filed, only the prosecutor's dismissal, a court ruling, a plea or a trial ends the case.

Why can't the alleged victim simply drop it?

The Legislature wrote its reason into the statute: "It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter." Each State Attorney must adopt a pro-prosecution policy, and "the filing, nonfiling, or diversion of criminal charges ... shall be determined by these specialized prosecutors over the objection of the victim, if necessary" (s. 741.2901(2)). A criminal case is brought in the name of the State of Florida, so the person who reported the incident is a witness, not a party who can withdraw it.

The Public Defender in Miami-Dade puts the practical side plainly: the State may file charges even if witnesses do not want to testify or do not want to proceed. Whether a case can end early for other reasons, such as weak evidence or a legal defect, is explained on our page about whether criminal charges can be dropped before trial in Florida.

What can the alleged victim actually do?

How do the local State Attorney offices handle a request to drop?

• Palm Beach County: the State Attorney's Domestic Violence Elimination (DOVE) Unit, set up under s. 741.2901(1), has eight attorneys who focus solely on domestic, intimate partner and family violence and ten victim advocates. Each victim is assigned an advocate who stays in contact through the case. The office notes that many crime compensation expenses can be covered "as long as the victim cooperates" with the prosecution.
• Broward County: the State Attorney says "any request to drop the charges / request to waive prosecution will NOT be addressed during First Appearance Court"; the alleged victim must contact the Victim Advocate Unit, at 954-765-4133, for the Waiver of Prosecution instructions. After first appearance the unit tries to contact every domestic violence victim.
• Miami-Dade County: misdemeanor domestic cases go to the Domestic Violence Division, and the Public Defender's guidance is that the State may proceed even when witnesses do not want to.

The first days of the case, including where first appearance happens in each county, are on our page about what happens after a domestic violence arrest.

Why should the accused never ask the alleged victim to drop it?

Because it can create a second, more serious charge. Florida's witness tampering statute covers anyone who uses intimidation, force, threats, misleading conduct or an offer of benefit to get a person to withhold testimony, avoid a subpoena, stay away from court or testify untruthfully (s. 914.22(1)). When the underlying case is a misdemeanor, tampering is a third-degree felony; when it is a third-degree felony, tampering is a second-degree felony (s. 914.22(2)). Contact may also break a release condition (s. 741.29(7)) or an injunction (s. 741.31). The pretrial intervention statute adds that the defendant and the defendant's family may not personally contact the victim to get consent for diversion (s. 948.08(2)). Any communication about the case should go through a defense attorney. The penalties for injunction violations are covered on our violation of injunction page.

What happens if the alleged victim will not cooperate?

Prosecutors decide case by case. Some cases are dropped for lack of evidence when the only witness will not testify; others go forward using other evidence the State believes is admissible. Married couples should know that the spousal privilege does not apply in a criminal case where one spouse is charged with a crime against the other, or against a child of either (s. 90.504(3)(b)). The possible penalties if a case goes forward are explained in what a domestic battery conviction carries in Florida.

What changes the answer?

• Felony or misdemeanor. Felony victims have a statutory right to be consulted on the disposition (s. 960.001(1)(g)).
• Other evidence. Photographs, 911 calls, medical records and other witnesses may let the State proceed without the alleged victim.
• Diversion. Pretrial intervention needs the consent of the victim, the State Attorney, the administrator and the judge (s. 948.08(2)).
• Children. If a child was involved, child protective rules may apply as well; see where Florida law draws the line between discipline and abuse.
• A pending injunction. A separate civil case can continue even if the criminal case ends (s. 741.30).

A worked example

For example, picture a hypothetical spouse in Coral Springs who called police during an argument, after which the other spouse was arrested for misdemeanor battery. The next week the caller contacts the Broward State Attorney's Victim Advocate Unit and asks to drop the case. The unit sends the Waiver of Prosecution instructions, and the caller completes them. The prosecutor reads the waiver along with the officer's report, the 911 recording and photographs, and decides whether to go forward. Meanwhile the no-contact condition stays in place until the judge changes it, and the accused spouse does not discuss the case with the caller at all. This is an illustration, not a prediction.

Common mistakes people make

• Believing the case ends when the caller "drops the charges."
• The accused calling or texting the alleged victim about the case, which risks tampering and release violations.
• Ignoring a subpoena to appear.
• Assuming a marriage creates a privilege not to testify.
• Resuming contact because the alleged victim agrees, before a judge modifies the order.

What to do this week

1. If you are the alleged victim and want to be heard, contact the State Attorney's victim advocate for the county.
2. If you are the accused, stop all contact about the case and follow the release order exactly.
3. Keep copies of any texts or messages sent since the arrest.
4. Ask a defense attorney about asking the court to modify the no-contact order, if both people want contact.
5. Write down witnesses and where the evidence is, such as phones and cameras.

Frequently asked questions

Does a signed affidavit from the victim end the case?

No statute makes it end the case. In Broward the request goes through the Victim Advocate Unit's Waiver of Prosecution process, and the decision stays with the specialized prosecutor (s. 741.2901(2)).

Can the victim be made to testify?

The State can subpoena a witness, and getting someone to evade a subpoena is itself a crime under the tampering statute (s. 914.22(1)(c)). For married couples, the spousal privilege does not apply when one spouse is charged with a crime against the other (s. 90.504(3)(b)).

Can the victim speak to the judge at first appearance?

The Broward State Attorney says victims have the right to be present and give their views on release, in person or by Zoom. Florida law also requires the court to consider the victim's safety in setting bail (s. 741.2901(3)).

Can the victim agree to diversion?

The victim's consent is one of the approvals pretrial intervention needs, along with the State Attorney, the program administrator and the judge (s. 948.08(2)). Diversion options are compared in pretrial diversion in Florida.

Can the no-contact order be lifted if we reconcile?

Only the court can modify it. A defense attorney can file a motion; until the judge rules, the order stands.

How can Mr. Mead help?

Mr. Mead's practice is devoted entirely to criminal defense, and he has spent more than three decades in South Florida courts. In domestic cases, an attorney can communicate with the State on the defendant's behalf, so the defendant never has to risk contact, and can raise the release conditions with the court. How the case starts, from the hold to first appearance, is covered in how bond is set in Florida. The office is in Boca Raton, Spanish and Portuguese are spoken, and you can call 24 hours.

Every case is different, and no result can be promised. If you are facing a domestic violence charge, a confidential call to (561) 362-6677 is a sound first step.

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