Articles Posted in Injunctions

The Fifth Amendment is applied to Florida, and all the other States, through the Fourteenth Amendment. It protects a person from self-incrimination and is meant to “assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.” Maness v. Meyers, 419 U.S. 449, 461 (1975). A witness in a civil proceeding has the right to refuse to respond to a question on the grounds that his answer may tend to incriminate him. See Kastigar v. United States, 406 U.S. 441, 444-45 (1972).

In an injunction hearing is a civil proceeding. Quite often, the civil proceeding is intertwined with a criminal case. For example, the respondent that is defending against the restraining order may also be the Jacksonville criminal defendant in a Jacksonville domestic battery case. Other example occurs when the respondent has not been charged with a crime, but he or she may be arrested in the future for conduct alleged in the Jacksonville petition for an injunction.

The Florida Fourth District Court of Appeals has found that a respondent did not waive his Fifth Amendment right when he testified at a Florida injunction hearing. Since this right “is a fundamental principle secured by the Fifth Amendment, waiver of the privilege will not be lightly inferred, and courts will generally indulge every reasonable presumption against finding a waiver.” Jenkins v. Wessel, 780 So. 2d 1006, 1008 (Fla. 4th DCA 2001) (citing State v. Spiegel, 710 So. 2d 13, 16 (Fla. 3d DCA 1998). The court held that the Fifth Amendment privilege against self-incrimination is waived “only as to matters relevant to issues raised by [the witness’s] testimony on direct examination.” Jenkins, 780 So. 2d 1006, 1008 (citing Johnson v. State, 509 So. 2d 373, 373 (Fla. 4th DCA 1987)).

When a Jacksonville Court is deciding whether or not to issue a Jacksonville Restraining Order by granting a petition for an injunction against domestic violence, the court will look to the factors listed in Florida Statute Section 741.30(1)(a). This Florida law states that the court should consider whether the Respondent:

  1. committed or threatened to commit domestic violence;
  2. previously threatened, harassed, stalked, or physically abused the petitioner;
  3. attempted to harm the petitioner or family members or individuals closely associated with the petitioner;
  4. threatened to conceal, kidnap, or harm the petitioner’s child or children.
  5. intentionally injured or killed a family pet;
  6. used, or has threatened to use, against the petitioner any weapons such as guns or knives;
  7. physically restrained the petitioner from leaving the home or calling law enforcement;
  8. has a criminal history involving violence or the threat of violence (if known);
  9. has another order of protection issued against him or her previously or from another jurisdiction (if known);
  10. destroyed personal property belonging to the petitioner; or
  11. engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. 
When working on a Jacksonville Domestic Violence Injunction case, I grow through all of these factors to determine whether or not the Petition has establish grounds for the injunction and the best way to defend against it (Read Jacksonville Restraining Order Denied in Alleged Domestic Violence Case).
In some cases, the Petitioner will hire me to obtain the injunction.  In that case, it is important to make sure that I have the necessary proof, so the Court may grant the Jacksonville Petition for an Injunction.  

Today, I argued in favor of the Respondent at a Jacksonville Injunction Hearing. An injunction is often referred to as a Jacksonville Restraining Order. In this case, the wife (petitioner) filed for a an injunction against her husband (respondent). Without a hearing, the judge issued a temporary restraining order. After the order was issued, I met with the husband. After reading the Jacksonville Petition for an Injunction and speaking with him, it was obvious that the wife did not have a reasonable fear that he would commit any violence to her. He had never committed an act of domestic violence in the past and never threatened to do so. Factors that the Court will Look at When Issuing a Jacksonville Domestic Violence Restraining Order are listed in Florida Statute Section 741.30(1)(a).

At the Jacksonville Injunction Hearing, I presented Florida cases, such as Oettemeier v. Oettmeier, 960 So. 2d 902 (Fla. 2nd DCA 2007) and Gill v. Gill, 50 So. 3d 772 (Fla. 2nd DCA 2010). I explained to the judge the reasons that the Jacksonville Restraining Order should not be issue pursuant to Florida Statute Section 741.30. After hearing the testimony of the petitioner, wife, and reading the cases, the judge ruled that the injunction should not be issued, and he terminated the temporary restraining order.

When being served with a Jacksonville Restraining Order, it is important to know your rights. Contact a Jacksonville Injunction Lawyer to discuss your case.

Jacksonville Domestic Violence Attorneys and Criminal Defense Lawyers are not the only lawyers that handle domestic battery charges on a regular basis. Family Law attorneys deal with this problem as well. Quite often, I have had a client falsely charged with Jacksonville Domestic Battery. This may be due to vengeance on the side of the alleged victim, or the alleged victim may be trying to get the upper hand in a divorce or custody dispute. However, he or she may not realize that filing a false police report is a serious charge and a first degree misdemeanor. Read Jacksonville False Police Report is a Crime by a Jacksonville Criminal Defense Lawyer, and False Domestic Violence Accusations by attorney, Kelly Ryan, for more information.

“I have a Jacksonville Injunction Hearing coming up, but I don’t know if I should hire an attorney?”  According to Florida Statute Sections 784.046 and 741.30, the answer is “no, you do not need an attorney.”  However, failing to hire an attorney to protect your best interests could be devastating to your case.  When a person petitions for an injunction (also known as a restraining order), that person is alleging that you are violent.  If the injunction is granted, you cannot possess a firearm (Florida Statute Section 790.233).  Also, this will reflect on your character when you apply for jobs and can effect professional licenses that you hold.  A Jacksonville Injunction hearing should be taken as seriously as any criminal offense, because if it is violated, you can be arrested for Violation of an Injunction.  Therefore, you should hire an attorney to protect your rights and help prevent the injunction from being issued in the first place.  

Contact a Jacksonville Injunction Lawyer to learn more about defending against a Jacksonville Injunction and Restraining Order.  

Jacksonville Restraining Orders are available anyone that is a victim of violence.  A restraining is an injunction that protects the victim from any further violence.  Many Jacksonville residents believe that they must be the victim of some type of “physical violence” before they can petition the court for an injunction, but this is not true.  Violence includes the crimes of assault and stalking which do not require physical contact whatsoever.  Under Florida Statute Section 784.11, an assault occurs when a person intentionally and unlawfully threatens to do violence to the person of another coupled with the apparent ability carry the violence out.  The victim of the assault must be in fear that the violence is imminent and will readily take place.  Stalking can also result in a Jacksonville restraining order.  Under Florida Statute Section 784.048, stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks” and other person.  The harassment must cause substantial emotional distress and fail to serve a legitimate purpose.

If you believe that you need a Jacksonville Restraining Order, contact a Jacksonville Attorney that will Petition the Court for an Injunction for Protection.  

Yesterday, a nursing home worker was shot by her boyfriend in the parking lot of the Southpoint Terrace Skilled Nursing and Rehabilitation Center.  The two met in the parking lot of the Center, an argument ensued, and he shot her several times.

Domestic Violence occurs too often in Jacksonville, Florida.  Many victims of Domestic Violence do not know what they can do to stop it.  However, there are options available.  For instance, a victim of domestic abuse can petition the court for an Injunction for Protection against Domestic Violence (a restraining order).  Once this petition is granted, the other person cannot have contact with the victim.  If contact is made, he or she will be arrested and can serve up to one year in jail.
In the case of the nursing home worker, I seriously doubt that this was the first instance of violence.  She was likely eligible to obtain an injunction or restraining order against her boyfriend.  With this restraining order, she would have been able to call the police and have her boyfriend arrested just for showing up in the parking lot.  He could have been arrested just for calling her.  She did not even need to walk outside.  Additionally, he would have been caught carrying a firearm.  If he did not have a permit, he would have been charged with a felony.  
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