CLEARWATER CRIMINAL DEFENSE ATTORNEY
BATTERY ON A LAW ENFORCEMENT OFFICER
These cases are always unique because a Law Enforcement Officer claims to be the victim. He may or may not have been injured. Like any victim he may or may not be completely honest about the facts of the case. Suddenly, the officer who under our system of laws should be an impartial investigator becomes the chief witness of his own criminal investigation into the Battery or Assault. Suddenly, you are faced with a felony for what would be a misdemeanor if it was any other victim and the only thing that stands between you and the judge is a Clearwater Criminal Defense Lawyer.
Sometimes, like other victims Officers have been known to trump up Battery or Assault charges where there is bad blood between the arresting officer and the Defendant. Sometimes, just like all of us a good officer is simply having a bad day. But whatever the facts and circumstances of your case may be one thing is certain, besides the initial reason, whatever it may have been for the officer to have made initial contact with you, now there’s now another charge and it’s a felony.
Assault and Battery on a law enforcement officer charges are serious offenses which if not handled properly could ruin your reputation in the community, result in loss of employment and may be punished by jail, house arrest or probation with heavy fines depending upon your prior record, the severity of the charged misconduct, the severity of officer’s injuries, if any, and the facts surrounding the alleged misconduct.
A Pinellas criminal law defense lawyer must take action as soon as possible if you’ve been charged with Assault and battery on a law enforcement officer in Clearwater, Pinellas county or anywhere in Tampa Bay you will need an attorney on your side who will not only listen to what you have to say, empathize with your situation and who will take immediate action to uncover all of the facts of the alleged battery or assault; to speak with all of the witness – not just the arresting officer, who may have a grudge to bear; to search thru all of the discovery, to review medical records; to exploit weaknesses and the evident bias in the Law Enforcement’s investigation and to persuade the prosecutors to dismiss or drop any trumped up criminal counts – all with the objective of obtaining a successful outcome for you by utilizing winning defense tactics and proactive litigation strategies.
If you’re under investigation for aggravated assault or aggravated battery by local Tampa Bay law enforcement or from a Grand Jury investigation you need to hire the best Clearwater Criminal Defense Attorney for your needs.
ASSAULT OR BATTERY ON A LAW ENFORCEMENT OFFICER, FIREFIGHTER, EMERGENCY MEDICAL CARE PROVIDERS & OTHER OFFICERS
Florida Law also has special victims who under the law are treated differently such as Law Enforcement Officers, Firemen and Paramedics or other emergency specialist who receive special treatment as victims under Florida Law.
What would be a simple battery on any other victim becomes a Battery on a Law Enforcement Officer which is a felony. Officers will often file this charge along with Resisting Arrest With Violence when they really want to stick it to a Defendant. These cases can be difficult to defend because it is often just the officer’s word versus the Defendant’s word as to what actually happened. Recently, with the advent of more video taping of arrests from camera phones as well as police cruisers Tampa Bay Battery on a Law Enforcement Officer (also known as BOLEO in police parlance) charges have been successfully defended where evidence reveals that the Officer used unnecessary force against the Defendant. For an example of how little it takes for a BOLEO, If someone spits on another person it is a midemeanor battery, but if the victim spat upon is an officer then the charge will be a third degree felony punishable by up to five years in prison. Here is the Florida Statute:
BATTERY ON A LAW ENFORCEMENT OFFICER CASES IN PINELLAS & TAMPA BAY HAVE LESSOR INCLUDED CHARGES OF SIMPLE ASSAULT & SIMPLE BATTERY EMBEDDED WITHIN THEM
All Assault or Battery on a Law Enforcement Officer (known by law enforcement, prosecutors and judges as BOLEO) cases have lesser included charges embedded within them, known as lesser included charges. Because every aggravated charge must first meet the criteria for simple assault and simple battery. In a recent case in Pinellas County a Defendant was charged with BOLEO when he allegedly purposefully vomited on a police officer incident to his arrest. Spitting has been held to be sufficient for a felony charge so if vomiting was done intentionally it could also withstand a constitutional challenge. Both spitting and vomiting would be misdeamenor battery charges because each is considered an unlawful touching no different from a legal standpoint as throwing a rock into someone’s face. But when the victim is a police officer the charge of simple battery becomes a felony.
This means that even if the Pinellas Prosecutor makes a determinaltion that the charge must be filed in the higher aggravated form, it’s still possible at a later time for the charge to be reduced incident to a plea or by legal motion to the presiding Pinellas Circuit Court Judge if the facts do not support the aggravated form or if the charge is taken to Trial the jury will be told in its jury instructions that it may come back with the lesser included offense of simple assault or simple battery.
You won’t get a second chance in any allegation of assault and battery in Tampa Bay. You and your attorney must act quickly to have your version of the confrontation taken seriously by law enforcement.
Florida Statutes 784.07 Assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers & minimum sentences.
Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer, a firefighter, an emergency medical care provider, a traffic accident investigation officer as described in s. 316.640, a nonsworn law enforcement agency employee who is certified as an agency inspector, a blood alcohol analyst, or a breath test operator while such employee is in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who is detained or under arrest for DUI, a law enforcement explorer, a traffic infraction enforcement officer as described in s. 316.640, a parking enforcement specialist as defined in s. 316.640, a person licensed as a security officer as defined in s. 493.6101 and wearing a uniform that bears at least one patch or emblem that is visible at all times that clearly identifies the employing agency and that clearly identifies the person as a licensed security officer, or a security officer employed by the board of trustees of a community college, while the officer, firefighter, emergency medical care provider, traffic accident investigation officer, traffic infraction enforcement officer, inspector, analyst, operator, law enforcement explorer, parking enforcement specialist, public transit employee or agent, or security officer is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows:
- In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.
- In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
- In the case of aggravated assault, from a felony of the third degree to a felony of the second degree. Notwithstanding any other provision of law, any person convicted of aggravated assault upon a law enforcement officer shall be sentenced to a minimum term of imprisonment of 3 years.
- In the case of aggravated battery, from a felony of the second degree to a felony of the first degree. Notwithstanding any other provision of law, any person convicted of aggravated battery of a law enforcement officer shall be sentenced to a minimum term of imprisonment of 5 years.
Any person who is convicted of a battery under paragraph (2)(b) and, during the commission of the offense, such person possessed:
- A “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 3 years.
- A semiautomatic firearm and its high-capacity detachable box magazine, as defined in s. 775.087(3), or a machine gun as defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 8 years.
Florida Statutes 776.051 Use of force in resisting arrest or making an arrest or in the execution of a legal duty
- A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
- A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to be unlawful.
Florida Statutes 843 Resisting Arrest with Violence or Resisting Arrest without Violence
The Florida Statutes also make a crime of resisting arrest and pertain to resisting arrest with violence and resisting arrest without violence.
- Resisting an officer with violence: The statute provides that a “resisting officer with violence” offense is a third degree felony punishable by up to five years in a state prison. Florida Statute 843.01 essentially prohibits a person from using or threatening any physical violence against an officer who engaged is in the lawful execution of his or her duties, and punishes such illegal action as a third degree felony. Even if the officer is making an illegal arrest, a person using or threatening physical violence during the arrest is guilty of this crime. Clearly, the purpose of this statute is to prevent injury to law enforcement officers and prevent an arrest situation from becoming unmanageble by the officer and possibly dangerous for both the officer and the offender. However, this charge may be abused by the officer when it suits his purpose to add the additional count where he injects himself into the case by making himself a victim and witness to the Defendant’s misconduct.
- Resisting officer without violence” is a violation of this statute is a first degree misdemeanor and carries a maximum sentence of one year in the county jail. The pertinent part of Florida Statute 843.02 states, in part, “whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty without offering or doing violence” is guilty of a first degree misdemeanor. Police officers may abuse this charge to hide failures of investigation, to cover his or her own misconduct or to arrest someone perceived as a trouble maker. Just like any witness an officer may have motives to lie when necessary to protect his self interest.
For much more information about assault and battery case law, the latest assault and battery factual situations leading to reduction of charges or dismissal of cases and the best information on assault, aggravated assault and battery and aggravated battery defenses Clearwater Criminal Defense Attorney Robert Hambrick’s Blog: Your Best Legal Help Advice & Counsel — A Guide to Crime Investigation & Evidence Evaluation of Assault Battery Arrest Dismissal or Trial: From a Seasoned Pinellas & Tampa Bay Defense Lawyer
WHAT TO DO IF YOU ARE ARRESTED FOR BATTERY ON A LAY ENFORCEMENT OFFICER
If you have been arrested in Pinellas or Tampa Bay for a criminal investigation for assault or battery on a law enforcement officer where the victim is an officer or firefighter or medical specialist,, you should remember the following:
- Never discuss the facts about the assault or battery on a law enforcement officer or firefighter until after you have sought out legal advice from a criminal law defense attorney, because whatever you say can and will be used against you in a court of law. Don’t make any statements. Don’t sign any admission statements. And if you are questioned about an alleged assault or battery remember that the Miranda Rights don’t always have to be given, unlike what you see in the movies. In fact Miranda Rights are only required for incustodial interrogations, meaning only when you are in custody by the police. If a law enforcement officer investigating an assault or battery later says you were free to leave at the time he questioned you he sheds his obligations to read you your rights nor to honor the rights which are enshrined in our American Constitution.
- Remember you are innocent of assault and battery until proven guilty. Even though the victim is an officer or firefighter or medical specialist, even these professionals are not perfect, have bad days and occasionally make mistakes which can ruin other people’s lives if not corrected.
- Don’t let yourself be pushed into saying or doing anything just because the victim is an officer or firefighter or medical specialist. Statements made in the heated moment after a confrontation with an officer may later be used against you in court.
- Nor is it a good idea to offer an apology or regrets about whatever happened when the victim is an officer or firefighter or medical specialist, as the very apology may be used to show your criminal intent and knowledge of the battery or assault at a later time.
- Often an issue in these cases is whether the Defendant knew or should have known that the the victim was an officer or firefighter or medical specialist. For example, did the defendant know that an undercover officer was an officer; or that an off duty or in plain clothes firefighter or medical specialist was in fact working.
- As these assault and battery on a law enforcement cases have sympathetic victims who are officers or firefighters or medical specialists; false or exaggerated allegations based on misunderstandings or improper motive, must be defended with vigor and speed before further damage can be done to your reputation.
- When the victim is an officer or firefighter or medical specialist it’s imperative to act fast for your defense — preparing a defense as soon as possible.