How to obtain a " Bench Warrant " for a Violation of a restraining Order, since the assistant state attorney refuses to press
6 attorney answers
A bench warrant is for failure to appear as ordered in court. The decision to prosecute is that of the State Attorney solely and the decision to investigate is that oft the police. The State Attorney wil not file charges without an investigation of your allegations.
You are apparently trying to enforce your restraining order. You only have two ways of doing this. You can call the police and make a police report. The remedy will probably be taking your police report to the state attorneys office. You apparently state the prosecutor is refusing to prosecute. It is their call as to whether to move forward on this or not.
Your second remedy is to call the judge who issued the restraining order to give you a hearing date for a violation of the restraining order or a contempt of court proceeding.
My advice is that you retain an attorney to do this for you, as you do not have the experience and expertise to achieve what you really want, which is to teach the offender a lesson. A lawyer will do that for you.
Otherwise, with the amount of cases in our system and the way the system is structured, you probably don't have a chance at achieving what you want.
The information provided is not legal advice from Criminal Defense Lawyer Albert Quirantes, or the Ticket Law Center in Miami, Florida. There is no attorney client privilege created in this communication. Do not send questions which are confidential in nature by either this venue or via email. Personal questions should be asked in person or via telephonic conference only. You should only ask theoretical questions of a general nature.
First off, bench warrants are issue by judges not state attorneys.
Secondly, a violation of a restraining order should be reported to the police. They should follow up with either an arrest or a report which will then be filed with the state attorneys office.
Third you, presumably a civilian (who apparently thinks but does not know the logistics of what s/he is talking about) should not be pressing this matter, rather you should have an experienced lawyer doing this for you, albeit at your direction and in your interests.
Florida provides both a constitutional and a statutory provision for victim's rights. As a victim you are entitled to certain "rights" and, while you cannot "direct" the state or the court to take action as you see fit, a trained and skilled lawyer may be able to use the constitutional and statutory protections which are afforded to you to meet your objective. (It is also possible that, after becoming intimately associated with the facts and circumstances of your situation, an experienced lawyer will tell you what you have already been told by the state, but again, that is just speculation.)
My advise: If you are afraid call the police and generate a police report. Make sure to document the contact and to have proof of the Restraining Order / injunction handy. Then consider hiring a 305 area criminal defense attorney to assist you. I have successfully served in this capacity on many occasions and know that if the facts and circumstances justify it then you have a right to seek justice.
I hope this has been helpful and wish you the best of luck!
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Only the prosecutor can ask the court for a bench warrant.
The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice.
If the state refuses to press charged there can be nobench warrant.
Jonathan N. Portner, Esquire, Portner & Shure, P.A. Maryland and Virginia Personal Injury Attorneys. This response is general information and not legal advice, and does not create an attorney-client relationship. This response should not be relied upon. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm