Assault and Battery of a Family or Household Member
DOMESTIC VIOLENCE CHARGES IN VIRGINIA
Assault and Battery of a Family or Household Member is charged under Virginia Code §18.2-57.2. A first and second offense for domestic violence is a Class 1 Misdemeanor, punishable by up to 12 months in jail and/or a fine of up to $2,500. A third offense within twenty years is a Class 6 felony, punishable by one to five years in prison. After arrest, the person appears in the local Juvenile and Domestic Relations District Court to address the charge.
Normally, an emergency protective order is issued against the defendant when these charges are filed, unless the person is a child. Emergency protective orders prohibit contact with the alleged victim or use of a shared residence for 72 hours. This can be unusually disruptive to families, but is done to protect family members from potential harm. A motion may be immediately filed with the court to vacate an emergency protective order.
Deferral Program Available for Those Charged With First Offense
Deferral procedures are available to those charged with a first-offense Assault and Battery of a Family or Household Member under §18.2-57.2. The client must plead guilty to the domestic violence charge. The court withholds a finding of guilt under Virginia Code §18.2-57.3. The court will place the person on probation for at least two years and order that they complete an anger management program. The case is deferred with no finding of guilt. If the client is cooperative with probation, stays of good behavior, and complies with the order of the court, then the charge is dismissed by the judge.
The client may file a motion to withdraw his plea of guilty and waiver of appeal for the deferral proceeding within ten (10) days. The court will hold a hearing and is now required to grant the motion. The court will find the person guilty when the motion is granted. The case can then be appealed to the Circuit Court. A fresh trial (heard de novo) can then be had in that court.
The good aspect of the deferral program is that the client avoids a permanent criminal conviction. However, there are several drawbacks to the program. First, the defendant must pay the expense of the anger management treatment program and any court costs. Second, the client is not eligible for expungement of the original arrest under § Virginia Code 19.2-392.2. The arrest will remain on the permanent criminal record (although if compliant, there will be no conviction). Third, if the defendant gets arrested for another crime during the deferral period, the judge may still find he or she in violation of the deferral and impose a conviction and sentence. There is no appeal of this court decision.
For these reasons, The Law Office of Wilfred W. Yeargan prefers not to utilize the deferral program mentioned above for persons charged with domestic violence for the first time. It is preferable to negotiate an informal deferral with the prosecutor or Commonwealth Attorney. This may enable the client to avoid entering a guilty plea and obtain dismissal of the charge within a shorter time. The expungement option would then be available. The treatment costs of the anger management program are avoided. Finally, the defendant will not be at risk of a guilt finding if they are arrested for another crime.
Completion of community service hours and voluntary counseling and/or anger management therapy before court may help a client avoid the deferral process and get the charges dismissed.
Defenses to the Charge Which May Result in Dismissal
Self Defense or Defense of Others is also a possible defense to the charge which may help get it dismissed. These defenses are examined/evaluated carefully during the discovery process (the Attorney works to get information about the case from the prosecutor). Any witnesses to the alleged event are also given subpoenas to appear in court. If there is video related to the charge, the Attorney will arrange to review this for the court hearing.
FOUR COMMON QUESTIONS AND ANSWERS ABOUT DOMESTIC VIOLENCE CHARGES:
Can the person who made the Complaint of violence drop or dismiss the charges when I come to court?
Answer: No, the complaining witness does not have the power to dismiss the charges. The decision to dismiss (or nolle prosequi) the charges in court rests with the prosecutor (called the Commonwealth Attorney in Virginia). The prosecutor may take into consideration the wishes of the complainant/victim when making a decision. But the decision rests entirely in the hands of the prosecutor. The alleged victim may be compelled to testify by subpoena unless there are self-incrimination issues. This includes spouses.
As a practical matter, Attorney Yeargan has had many cases dismissed (or Nolle Prosequi) when the victim does not want to participate in the case. In the past year, the office has seen well over a dozen misdemeanor Assault and Battery of a Family Member charges Nolle Prosequi. Often, the main contributing factor for dismissal is that the alleged victim does not want the case to go forward. Many of those clients later hired the law office to file a Petition for Expungement of the arrest to remove it from the criminal record.
What happens to my Firearm rights if I am convicted of this domestic violence charge?
Answer: Federal law prohibits an individual convicted of misdemeanor domestic violence charges from ever possessing a firearm or ammunition. It is advisable to keep this in mind if you own firearms, are passionate about hunting, or have firearms in your home for self-protection. Violation of this law is punishable by up to ten years in prison.
Can I be charged with Domestic Assault and Battery if the event happened after I moved out of the home I shared with my boyfriend or significant other?
Answer: Yes, if the alleged domestic assault occurred within 12 months of living together in the same household, you can be charged with domestic violence. If it occurred more than 12 months after living together in the same household, the offense may be charged as a regular Assault and Battery case. The police often make mistakes when deciding what offense to charge in these circumstances. A regular Assault and Battery is charged in the General District Court, not the Juvenile and Domestic Relations Court.
If the police charge domestic violence as a regular assault and battery and give you a court date in General District Court, the judge will transfer the case to the Juvenile and Domestic Relations Court.
What is the statute of limitations for filing a misdemeanor Assault and Battery charge in Virginia?
An alleged victim has 12 months (one year) to file a Criminal Complaint for misdemeanor Assault and Battery in Virginia. The vast majority of cases are filed immediately after the alleged assault. Occasionally, the law office sees cases being filed months later. It is most unusual and raises a number of questions about the legitimacy of the charges.
Do I have to appear for my Advisement of Rights hearing (Arraignment) for this charge in Fairfax County if I have hired a lawyer to represent me for the case?
Answer: No, if you have hired a lawyer to represent you for the case, the lawyer will enter their appearance of counsel with the clerk and the Advisement Hearing will be waived. You do not need to come to court on that day. The clerk of court will immediately set it for a trial date. You will need to appear for that court date. The reason for this policy is that the Court is satisfied that you understand your rights if you have hired a lawyer, and skips the hearing to save everyone's time.
Contact a Fairfax Traffic Defense Lawyer Today - Experienced Representation in Fairfax County, Prince William County, and other locations in Virginia
For more advice on Assault and Battery of a Family or Household Member charges, call 703-352-9044 or send an online message to speak with Attorney Yeargan. He can help you evaluate the facts and develop a strategy for possible reduction or dismissal of the case. He has 25 years of trial experience in Fairfax County (including Town of Vienna, Town of Herndon, City of Fairfax), Prince William County (including Woodbridge, Quantico, Haymarket, Manassas, Manassas Park), the City of Alexandria, Loudoun County, Arlington County, Stafford County, Caroline County, the City of Richmond/Henrico area, Dinwiddie County, King William County, and other locations in Virginia. The law office can help you effectively prepare your case for court to obtain the best outcome.