Assault and Battery | What is the Difference?

December 28, 2015 by Michael Dye

Assault and Battery

Assault & Battery is a Matter of Do or Do Not

The words assault and battery are often incorrectly used together to describe one criminal charge. For example, an individual on a television show might be arrested for “assault and battery.” In reality, assault is a criminal charge and battery is another. It is important to meet with a solicitor for any personal injury and understand that you cannot be convicted of assault and battery under Florida Law because the assault merges into the battery. You need to understand the common law definitions of both words in order to understand how an assault can “merge” into a battery.

What is Common Law?

According to the Miriam – Webster online dictionary, the simple definition of the phrase common law is “the laws that developed from English court decisions and customs and that form the basis of laws in the U.S.” A simplistic, yet very accurate, way to view common law is as the laws that the United States inherited from England. So common law in the various states consists of the laws established by the English legal system until July 4, 1776. The common law did not have published statutes and rules, but rather relied almost exclusively on custom and prior judicial decisions.

Louisiana is the only state that does not use English Common Law. The United States purchased the land, including what is now known as the State of Louisiana, from France in 1803. Not surprisingly, this real estate deal is known as the “Louisiana Purchase.” Louisiana adopted the Napoleonic Code as the basis for its law in 1812 due to its history as a French colony. If you are an attorney and you ever run across a Louisiana state court decision while researching, just ignore it.

Common Law Definition of Battery

The common law definition of battery is “an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.”

Common Law Definition of Assault

Black’s Law Dictionary defines assault at common law as “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.” Since we know that battery is a harmful of offensive touching without the consent of the individual, an alternative definition for assault at common law is the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

Assault Merges into Battery

There is no such crime as “attempted battery.” An attempt to commit a battery is an assault. Likewise, battery is a successful assault depending on your point of view. You can be charged with assault and you can be charged with battery, but not assault and battery.

For example, if you 1) throw a punch at somebody; 2) without lawful justification; 3) he or she sees you throw the punch; 4) he or she believes that the punch may connect; 5) but you miss, that is an assault under Florida Law. If you 1) throw a punch at somebody; 2) without lawful justification and 3) you hit the person causing “harmful or offensive”contact, that is a battery under Florida Law regardless of whether the individual saw it coming.

Here is an easy way to look at it, Master Yoda told young Luke Skywalker “Do or do not……..there is no try.” So if you DO hit somebody, it is battery. If you DO NOT hit somebody, it is assault.

Florida Statute 784.03 | Florida Statute 784.011

Florida maintains the common law definitions for both battery and assault. The Florida Statute defining battery is 784.03. The Florida Statute defining assault is 784.011. As you might imagine, punching somebody is a more serious offense that trying to punch somebody. Accordingly, a first conviction for battery is a first degree misdemeanor. A first conviction for assault is a second degree misdemeanor. However, a second conviction for a battery is a third degree felony punishable by up to five years in prison.

Aggravated Assault | Aggravated Battery

Aggravated assault and aggravated battery are enhanced criminal offenses due to the circumstances surrounding the offense. Aggravated assault is defined in Florida Statute 784.021. Aggravated battery is defined in Florida Statute 784.045. The “aggravating” factor is typically the use of a weapon. For example, let’s say that you and your roommate are having an argument. If you throw a punch at your roommate and miss, that is an assault. If you swing a baseball bat at your roommate and miss, that is aggravated assault and, consequently, a felony.

Domestic Violence

A domestic violence criminal charge arises out of the same underlying statute. Florida law does not attempt to distinguish victims by their relationships to the defendant. However, most, if not all, Judicial Circuits administratively segregate cases involving domestic violence. Domestic violence cases are typically conducted in their own separate courtrooms due to the unique issues that are often present in domestic violence cases.

Certain states do distinguish domestic violence cases from other violent crimes by statute. For example, in North Carolina, Statute 14-33(d) states that an “assault”(modified common law definition to include battery), committed by a individual in a personal relationship with the victim, while in the presence of a minor is an A1 Misdemeanor as opposed to a Class 1 Misdemeanor.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling assault charges, battery charges and domestic violence cases in both county and circuit court. For more information concerning possession of marijuana and other drug charges, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Additional help for this post came from Palm Beach Domestic Violence Defense Attorney Matthew Konecky, Esq. and

Raleigh Domestic Violence Attorney Jane Weatherly, Esq.

Filed Under: Assault, Assault, Assault and Battery, Assault and Battery, Battery, Battery, Common Law, Domestic Violence Tagged With: Assault, Assault and Battery, Assault merges into battery, Battery, Class 1 misdemeanor, Class A1 Misdemeanor, common law, criminal attorney, criminal defense attorney, Criminal Lawyer, Criminal Lawyer Fort Lauderdale, Domestic Violence, Florida Statute 784.011, Florida Statute 784.021, Florida Statute 784.03, Florida Statute 784.045, fort lauderdale criminal attorney, fort lauderdale criminal lawyer, Napoleonic Code, North Carolina Statute 14-33(d)

Decriminalization of Marijuana | Broward County

December 4, 2015 by Michael Dye

Decriminalization of Marijuana in Broward County, Florida

On November 10, 2015, the Broward County Commissioners passed ordinance number 2015-45. The recently passed ordinance gives police officers in Broward County the discretion to issue a civil citation in lieu of a misdemeanor criminal charge for possession of less than 20 grams of marijuana. Despite the language used to describe it, this ordinance is does not constitute decriminalization or the legalization of marijuana.

Is this Legalization of Marijuana?

No. Possession of less than 20 grams of marijuana is still illegal pursuant to Florida Statute 893.13 People are still getting arrested for misdemeanor possession of marijuana in Broward County every day. A state criminal statute is superior to a municipal ordinance. The Broward County Commission does not have the legal authority to, and did not attempt to, invalidate Florida statute 893.13.

The Broward County ordinance does not “decriminalize” possession of marijuana. Possession of any amount of marijuana is still illegal under federal and state law. The recently passed ordinance does provide a discretionary noncriminal means of enforcement. Police officers have always had broad discretion when making an arrest decision for misdemeanor possession of marijuana. The officer now has the option to charge misdemeanor possession of marijuana civilly as opposed to criminally. Prior to the effective date of November 17, 2015, a police officer in Broward County had the following options when making an arrest decision for misdemeanor possession of marijuana:

Make a formal arrest and take the suspect to jail;
Issue a Notice to Appear for a misdemeanor criminal offense;
Confiscate the marijuana and take no further action.

Now that the ordinance is effective, a police officer in the exact same situation has a fourth option:

Make a formal arrest and take the suspect to jail;
Issue a Notice to Appear for a misdemeanor criminal offense;
Issue a civil citation for a violation of the Broward County Code;
Confiscate the marijuana and take no further action.

Not Decriminalization Not Legalization

In reality, nothing has changed. When someone is arrested for possession of marijuana, it is usually not the only criminal charge. Marijuana charges typically come in two’s. Possession of marijuana and possession of drug paraphernalia. Somewhere back in time an unknown police officer came up with the idea that the plastic bag holding your marijuana could be charged as drug paraphernalia. The Broward County ordinance does not address possession of drug paraphernalia. However, since possession of drug paraphernalia is a misdemeanor, the police officer has the discretion to simply not charge you at all. The probability that you will be charged criminally for both possession of marijuana and possession of drug paraphernalia has a strong correlation to how big of a jerk you are to the police officer.

Odor of Marijuana | Automobile Exception

The outright legalization of marijuana would significantly curtail police action. The police regularly use the odor of marijuana as a basis to search a vehicle without a warrant. That is known as the “automobile exception.” The Broward County municipal ordinance does not overrule the automobile exception to the warrant requirement. The police are still legally allowed to search your vehicle if they smell marijuana coming from the inside of the vehicle.

Below is a copy of the ordiance number 2015-45. Visit https://www.municode.com for the complete Broward County Code.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/12/Broward-County-Municipal-Ordinance-2015-45.pdf” save=”1″]

Broward County criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation. For more information concerning possession of marijuana and other drug charges, please contact us at:

Filed Under: Chapter 893, Civil Citation, Civil Law, Criminal Lawyer, Decriminalization, Drugs, Legalization of Marijuana, Municipal Code, Possession of Drug Paraphernalia, Possession of Marijuana Tagged With: automobile exception, Broward County, Broward County Commissioners, civil citation, controlled substance, criminal attorney, criminal defense attorney, Criminal Lawyer, Criminal Lawyer Fort Lauderdale, criminal statute, federal law, formal arrest, fort lauderdale criminal attorney, fort lauderdale criminal lawyer, misdemeanor criminal charge, misdemeanor possession of marijuana, municode, notice to appear, odor of marijuana, ordinance number 2015-45, police officer, state law

Violation of Probation

October 15, 2015 by Michael Dye

Florida Criminal Law

What Happens if I Violate Probation?

Violation of probation proceedings are expedited. Nevertheless, there are several Car Accident to a violation of probation proceeding. The proceedings typically go in the following order:

1) Charges & Report;
2) Custody and Terms of Release;
3) Discovery;
4) Hearing and Disposition.

What is a Violation of Probation?

If you were placed on probation, the sentencing court gave you a set of rules. Those rules are the terms of probation. There are certain standard rules, but the Trusted Wills Oxford can customize the terms for your particular case. You do not have to break the law to violate probation. All you have to do is break the rules. For example, the terms of probation for your case might give you a curfew of 10 o’clock. It is not illegal to be out past 10 PM, but it would be a violation of your probation.

I. Charges & Report

Affidavit of Violation of Probation

Your probation officer will file an affidavit of violation of probation if he has probable cause to believe that you violated the terms of your probation. If this is a felony violation of probation, the affidavit is called the “Florida Department of Correction Affidavit of Violation of Probation.” The affidavit will contain the allegations stating how you violated the terms of probation. The affidavit will typically be filed with the same judge that presided over the original sentencing.

Violations of probation are either technical or substantial.

What is a technical violation of probation? Breaking the rules. Examples would include a positive drug test, failure to pay costs of supervision or any failure to abide by the rules.

What is a substantial violation of probation? A new criminal charge.

Violation of Probation Report

Your probation officer will also file a report with the affidavit of violation. The report can request that the court issue a warrant for your arrest or that the court issue a notice to appear. The violation report will also contain significant information such as any statement that you made regarding the alleged violation. The violation report will also contain your history of supervision, the facts and circumstances surrounding the underlying case. Most importantly, the report contains the probation officer’s recommendation concerning the disposition of your case.

II. Custody and Terms of Release

The violation report filed by your probation officer will request that a warrant be issued for your arrest or that you be given a notice to appear. The judge will typically issue a “no bond” warrant if a warrant is requested. It is not uncommon for defendants to stay in jail for two(2) or three(3) months waiting for their violation of probation hearing. Quite often the fear of having no bond drives individuals to abscond or hide in order to avoid going to jail. This just makes the problem worse. Contacting a private attorney immediately is your best option as there are ways to minimize or eliminate the amount of time you spend in jail waiting for your final hearing.

III. Discovery

Discovery is typically limited in violation of probation cases. More often than not your attorney will have most of what they need to know based after reading the violation report. If the violation is a technical violation of probation, i.e., breaking the rules, then there is typically no need for extensive discovery. If the violation is a substantial violation, i.e., a new criminal charge, your attorney will get the discovery in the new case.

IV. Hearing & Disposition

In a violation of probation proceeding, you do not enter a plea of guilty or not guilty. Rather, you either admit responsibility or deny responsibility. If you deny responsibility, there is a hearing. A violation of probation hearing is heard by a judge. You do not have a right to a jury trial. The rules of evidence are relaxed. Hearsay is generally permitted. Also, the burden of proof is lower. The state does not have to prove the violation “beyond a reasonable doubt,” rather, the state must present evidence “sufficient to satisfy the conscious of the court.” That is a long way of saying “by the preponderance of the evidence.” If the state meets the burden of proof the judge will find you responsible for the violation of probation.

Sentencing

The judge has three options when faced with a violation of probation. The judge can revoke probation and sentence you to any sentence which could have been legally imposed on the original criminal charges. For example, if you are on probation for a third degree felony, the judge can sentence you to five(5) years for a violation of probation. The judge can modify the terms of probation. The court can add conditions such as drug rehab, counseling or an ankle monitor. Alternatively, the judge can reinstate your probation on the exact same terms as before.

Getting a private attorney involved early can have a substantial impact on the disposition of your probation case. Typically, a private attorney can talk to the probation officer, prosecutor and set the hearing on a calendar quickly to get a resolution. Additionally, a private attorney can file a motion for an in court surrender and/or get a bond hearing quickly. The advantage of hiring a private attorney over a public defender is that a private attorney can get to work on your case before you are charged with a probation violation. A public defender can only be appointed and get to work once you have been charged. It is a matter of being proactive vs reactive.

In addition to the procedural aspects, a private attorney can help you gather the documents and/or evidence necessary to establish your defense in the event that you proceed to a final violation of probation hearing. It is much easier to obtain evidence before you go into custody.

Fort Lauderdale criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation. For more information concerning probation violation proceedings, please contact us at:

DUI Manslaughter Defense

September 15, 2015 by Michael Dye

Analysis of Postmortem Specimens

Strict Liability vs Causation

Florida had a strict liability DUI manslaughter statute until 1986. All the state needed to prove was that the defendant was driving while impaired, was involved in a car accident and somebody died as a result of the car accident. It did not matter if the defendant was at fault for the accident. The legislature amended the DUI manslaughter statute in 1986 to include the element of causation.

Constitutional Issue with Strict Liability

The problem with the strict liability DUI manslaughter statute, in my opinion, was that the criminal culpability for a misdemeanor DUI and the criminal culpability for a DUI manslaughter was equal. A good argument could be made that the strictly at liability DUI manslaughter statute violated the 8th Amendment of the United States Constitution as a cruel and unusual punishment. The current DUI manslaughter statute requires the state to prove the following: 1) driving under the influence; 2) an accident resulting in death and 3) and that the defendant was somehow at fault for the accident. The causation element must be proved independent of impairment.

Not My Fault Defense

Defending DUI manslaughter cases is difficult under any circumstances. It is human nature to look for somebody to blame when somebody dies before their time. It is also human nature to not speak ill of the dead. However, a legally viable defense to DUI manslaughter is that the decedent was at fault for the accident even though the defendant was driving drunk. The defendant would be guilty of DUI, but not DUI manslaughter in that scenario. The “not my fault defense” is a particularly difficult proposition to sell to a jury. In essence, you are saying to the jury “Yes, my client was driving drunk. Yes, my client was involved in a fatal car accident. However, the car accident was the dead guy’s fault.”

Theory vs. Reality

Nobody ever gets screwed by the law in a bar exam essay question. However, this is not a law school exam question. Defense attorneys need to stop thinking about legal theory and focus on where the rubber meets the road. Technically, the defense bears no burden of proof, but if this is your defense, you are going to need to show some solid evidence. The jury is looking to blame somebody and there is a good chance that it is going to be the defendant and also you could get a Dui Lawyer Orlando to help you rest your case, so everything is easier. Personally, I wouldn’t want to use this defense if it did not have a strong factual basis. The risk of alienating the judge and jury by blaming the victim without any serious basis is too great.

Where to Find the Evidence

The autopsy report from the County Medical Examiner’s Office is a valuable source of information for the defense. Please note that the Medical Examiner’s Office may be called something different in another state. Biological specimens, such as blood and urine, are preserved during the course of an autopsy. Toxicology testing is performed on the specimens. The results of the toxicology tests may show that the was under the influence of some sort of drug or alcohol at the time of the accident.

It should be relatively easy to establish whether the decedent was under the influence of a drug at the time of the accident. The postmortem blood sample will identify the drugs in his or her system at the time of death. Postmortem quantitative analysis of controlled substances in a decedent’s blood is another topic for another time. The biggest problem that defense attorneys run into when trying to evaluate the culpability of the decedent is the quantitative analysis of ethyl alcohol in the decedent’s blood.

No matter what methods are used, using the BAC at the time of autopsy in order to determine the decedent’s impairment at the time of the accident is an educated guess at best and gross speculation at worst. The reason for the uncertainty is because alcohol can be produced or destroyed in between the time of death in the time of the autopsy. Autolysis is defined as the self digestion or destruction of an organism’s own cells through the action of its own enzymes. This begins to occur within hours of an individual’s death and his present throughout the vast majority of the vascular system within hours. The result is an environment which supports the endogenous production of alcohol. Multiple environmental factors contribute in determining if endogenous alcohol is produced or the extent of the endogenous production. The two most significant are typically time and temperature.

Postmortem BAC Testing is Never Ideal

We obviously want the BAC to be as accurate as possible. In an ideal world we would like to have a blood sample taken from the decedent as soon as possible after the accident and a second blood sample taken 45 minutes to an hour after the first blood sample with both being prior to death. If that is the case, we would probably not need to use the postmortem sample.

If possible, the first thing that the defense attorney should do is check the decedents medical records in order to determine if a BAC screen was ordered by a doctor at the hospital. You may have to request a subpoena duces tecum if the medical evidence from the hospital is not provided in discovery. Sometimes individuals die on the scene or on their way to the hospital so this is not always available. If there is no antemortem sample, the defense attorney has to be able to assess the reliability of the autopsy sample.

Additional Reading

Postmortem analysis of biological specimens for ethyl alcohol is very complicated. Try as I might, I cannot say it any better than it is said on this website: BAC Analysis in Postmortem Specimens. Another good website for forensic science in general is The Truth About Forensic Science

Remember that it is the State’s burden to prove that the defendant was at fault for the accident. If you can put on strong evidence that the decedent was impaired it is up to the State to rebut that. There are simply too many variables for the toxicologist to credibly testify as to a definitive state of impairment at the time of the accident.

For more information, please contact us at:

Filed Under: 8th Amendment, Autopsy, Blood Test, Criminal Lawyer, Cruel and Unusual Punishment, Discovery, Drugged Driving, DUI, DUI Drug, DUI Drug, DUI Lawyer, DUI Legislation, DUI Manslaughter, Evidence, Florida Statute 316.193, Medical Records, Strict Liability Statute, Subpoena Duces Tecum, United States Constitution, Urinalysis Tagged With: 8th Amendment, autopsy, BAC, biological specimens, burden of proof, controlled substance, criminal attorney, criminal defense attorney, Criminal Lawyer, Cruel and Unusual Punishment, drugged driving, DUI Manslaughter, ethyl alcohol, evidence, fort lauderdale criminal attorney, fort lauderdale dui attorney, impairment, medical examiner, medical records, miami criminal attorney, miami dui attorney, postmortem BAC testing, subpoena duces tecum, subpoena for medical records, toxicology, United States Constitution

Broward DUI Conviction Rate 56%

August 26, 2015 by Michael Dye

Data Shows that DUI Cases can be Beat

Can I Beat this DUI Charge?

That is a very typical question for dui defense attorneys. Most potential clients feel that it is impossible to win a DUI case. Statistics say otherwise. Your chances of winning your DUI case depend exclusively on the facts and circumstances surrounding your arrest. However, some counties seem to be a bit for defense friendly than others. The way I typically approach the situation is to tell the potential client my honest opinion based on the information that has been provided by the client. Keep in mind that sometimes the information provided by a client is not the most accurate. It is simply human nature to try to present your case in a fashion that makes you look the best. I’ve never cited to conviction statistics in a client meeting because I did not know the exact figures. I probably still won’t after today because it can set unrealistic expectations.

What do the statistics say?

The statistics actually paint a pretty rosey picture for a DUI defendant in Broward County, Florida. The Florida Department of Highway Safety and Motor Vehicles keeps records on how many DUI citations were issued in a county and keeps records on how those DUI citations were resolved in court. Much to my surprise, there were significant statistical differences in counties throughout the state. So while your odds might be pretty good in Fort Lauderdale, they might not be as good in Ocala. Visit the FLHSMV Uniform Traffic Citation Report to see the reports for the entire State of Florida.

Please keep the following in mind while reviewing the statistics:

There will be a certain number of DUI charges that are unresolved at the end of each year due to continuances and the date of the offense;
The data below is from year 2013 in order to allow additional time for cases to be resolved and reflected in the annual data;
The data is limited to three counties. Broward County, Miami-Dade County and Marion County;
The term “guilty” does not mean guilty of DUI;
“Guilty” as used below means a finding of guilt as to DUI, another traffic criminal matter charged with the DUI or a reduced charge from the DUI;
For example, if an individual is charged with DUI and he or she takes a plea to reckless driving, that still counts as a guilty. This inflates the amount of individuals who are found “guilty” without disclosing how often the state reduces the charge.

Broward County DUI Arrest Data 2013
TOTAL ARRESTS: 3974
TOTAL PENDING DISPOSITION: 581
TOTAL DISPOSSED: 3393
TOTAL GUILTY: 1885 (56%)
TOTAL NOT GUILTY: 48 (1%)
ADJUDICATION WITHHELD BY JUDGE: 131 (4%)
TOTAL DISMISS OR NOLLE PROS: 1328 (39%)

Palm Beach County DUI Arrest Data 2013
TOTAL ARRESTS: 3034
TOTAL PENDING DISPOSITION: 969
TOTAL DISPOSSED: 2065
TOTAL GUILTY: 1343 (65%)
TOTAL NOT GUILTY: 31 (2)
ADJUDICATION WITHHELD BY JUDGE: 5 (<1%)
TOTAL DISMISS OR NOLLE PROS: 684 (33%)

Marion County DUI Arrest Data 2013
TOTAL ARRESTS: 915
TOTAL PENDING DISPOSITION: 31
TOTAL DISPOSSED: 884
TOTAL GUILTY: 737 (83%)
TOTAL NOT GUILTY: 10 (1%)
ADJUDICATION WITHHELD BY JUDGE: 6 (1%)
TOTAL DISMISS OR NOLLE PROS: 131 (15%)

Statistical Interpretation

The Florida Department of Highway Safety and Motor Vehicles has this information readily available for the years 2011 through 2014. Over the course of those four years, the annual arrest total by county varies, but not significantly. However, the percentages remain very close to the same in all categories.

Why?

Why does Marion County, Florida have an 83% conviction rate? Why does Broward County, Florida show a conviction rate of 56%? There are several plausible explanations for the variations between counties. Are conviction rates higher in smaller, more conservative, rural areas due to the composition of the jury pool? Are larger counties precluded from devoting substantial resources towards DUI enforcement due to other prosecutorial priorities? The statistics don’t tell us why.

All that we know, based on statistical data alone, is that Broward County has a 56% conviction rate and that includes all of the convictions for lesser offenses such as reckless driving. Marion County has an 83% conviction rate. The statistics above clearly show that DUI’s can be beat and criminal defense attorneys are winning DUI cases on a regular basis. Hiring a criminal attorney with substantial DUI experience can have an enormous impact in the outcome of your case. Make no mistake about it, the odds are still stacked against you, but a good DUI attorney, you can level the playing field.

For more information, please contact us at:

Filed Under: Criminal Lawyer, DUI, DUI Statistics, FLHSMV, Florida Department of Highway Safety and Motor Vehicles Tagged With: Broward County, Broward County DUI Arrest Data, criminal attorney, criminal defense attorney, dui charge, DUI charges, DUI citations, dui defense attorneys, DUI's can be beat, FLHSMV Uniform Traffic Citation Report, Florida Department of Highway Safety and Motor Vehicles, Fort Lauderdale, fort lauderdale criminal attorney, fort lauderdale dui attorney, guilty, Marion County, Marion County DUI Arrest Data, miami criminal attorney, miami criminal lawyer, Miami-Dade County, Ocala, Palm Beach County DUI Arrest Data, reckless driving, reduced charge, State of Florida, Statistical Interpretation, traffic criminal, unrealistic expectations