• Should You Get a Criminal Lawyer Even When the Victim Does Not Want to Prosecute?

Should You Get a Criminal Lawyer Even When the Victim Does Not Want to Prosecute?

Clients ask me all the time whether they should hire a criminal defense lawyer in cases where the victim does not want to prosecute. The answer is that it depends on the situation, your criminal record, whether there are injuries, and whether there are witnesses. Most of these cases involving a victim are domestic battery arrests under Fl. Stat. § 741.28. Alas, the majority of victim cases involve some type of battery, whether it be a simple misdemeanor battery, felony battery, or aggravated battery.

Is the Prosecutor Required to Dismiss the Case if the Victim Does Not Want to Prosecute?

No. There is no law or any legal obligation that requires a prosecutor to dismiss a case simply because that is what the victim wants. The prosecutor will first look to see if the case can be proven. They will look for any admissions of guilt by the defendant, any injuries, and if there are any witnesses. They will then look to see if the police have had to be called to deal with the victim and defendant in the past. Sometimes the prosecutor views himself like a parent. Perhaps cases in the past have been dropped, but the police have had to get involved yet again. In these situations, the prosecutor will file the charges to ensure that the cycle is broken.

What Are The Legal Steps That Can Be Taken to Get a Case Dismissed?

The most important thing that a criminal defense attorney can do is to make sure that the prosecutor knows that the victim does not want to prosecute. I have found that victims think if they simply do not answer the phone or respond to the prosecutor’s inquiries, then the case will go away- it just doesn’t work like that. If the prosecutor doesn’t know that a victim doesn’t want the charge to proceed, then they have to base the decision on the information that they have, and that usually is the same information that led to the arrest.

I have a form that contains the contact information for the victim, states that he or she does not want to prosecute, and also includes whether contact is requested. I filed this request with the clerk (so that the judge on the case can also see) and then send a copy directly to the prosecutor. I do not include the details of the incident, that is not the purpose of this form. But, if I have a victim or a witness that is friendly and cooperative, I will draft an affidavit and send that to the prosecutor as well. Most victim cases are he said/she said, so the more reasons that you can give to get the case dropped, the better.

Another technique that I’ve found to work well is to have my client voluntarily complete anger management classes. There are some 8 hour classes that can be done in one day and my clients report to me that they actually enjoyed doing it. Doing anger management is not an admission of guilt. Both the court and the prosecutors really like it when clients are proactive and perform anger management. I guarantee that by doing anger management, it will increase the chances that a case gets dismissed.

If a Case is Dismissed, Can I Seal My Record?

Yes, if you have never been convicted of any other crime before. The effect of a sealing or expungement is to order the Pinellas County Sheriff’s Office to erase your arrest record and booking photo. It also orders the Pinellas County Clerk of Court to destroy all of the records relating to the case. For a young person or a professional, this is an important step that should always be taken. There are simply too many negative consequences to leaving arrest records as public records even if they have been dismissed. For example, I have been contacted too many times to count by people who have been denied to rent an apartment because of an old charge.

Contact Criminal Defense Attorney Sean McQuaid

Only you can decide whether your case needs a criminal defense attorney. I have been handling criminal cases in Pinellas County for over 20 years and have seen it all. There have certainly been times when a case would have been dismissed with or without me involved. But, every case is unique and you simply never know whether you will need a lawyer because you don’t know what exactly is being said about you behind the scenes. The prosecutors do not tell you what the police officer told them or what the victim really said about what happened. You also rarely ever know what is on the 911 call until after you have been formally charged. These recorded calls can be brutal depending on what is said. Sometimes a defendant will even make an admission on a recorded jail line that comes back to bite him or her. This makes every case a risk if you don’t have a lawyer involved. The worst part is that once you are charged with the crime, the Office of the State Attorney for Pinellas County does not back down. This means that your best chance at getting the case dropped is at the beginning of the case, just after the arrest.

If you have any questions regarding a battery case in Pinellas County or another other situation involving a victim, please do not hesitate to contact me. I will give you straight-forward advice about your situation. There is never any pressure to hire me and the consultations are free.

Sean McQuaid