Assault and Battery of a Family or Household Member
Assault and Battery of a Family or Household Member under Virginia Code §18.2-57.2 is a unique category of offense. A first and second offense under this section is a Class One 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. The judge or jury may alternatively impose zero to twelve months in jail and/or a fine of up to $2,500.
Normally, an emergency protective order is issued against the defendant when these charges are filed, unless the person is a minor. 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 commonly issued to ensure that violence and potential injury to family members does not occur. A motion may be filed with the court to vacate an emergency protective order.
Deferral procedures are available to first-time adult offenders charged with Assault and Battery of a Family or Household Member under §18.2-57.2. The defendant must plead guilty to the charge. The court withholds a finding of guilt. The court will place the defendant on probation for a period of two years and order that he or she complete an anger management program. The case is deferred with no finding of guilt. If the defendant is cooperative with probation, stays of good behavior, and complies with the order of the court, then the charge is dismissed by the judge. Virginia Code §18.2-57.3 provides for this type of disposition.
The good aspect of the deferral program is that the defendant 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 defendant 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 there will be no conviction). Third, if the defendant get arrested for another crime during the two year 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 first time offenders. It is preferable to negotiate an informal deferral with the prosecutor or Commonwealth Attorney. This may enable the defendant to avoid entering a plea of guilty and obtain dismissal of the charge within a shorter time. The expungement option would then be available if no plea of guilty is on the record. Expensive treatment costs associated with the anger management program are then avoided. And, of course the defendant will not be at risk of a guilt finding if there is a subsequent arrest for another crime.
Self Defense is also a possible defense to the charge which may help get it dismissed. This defense is 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.
Contact Attorney Wilfred Yeargan today if you have questions about your pending criminal charge. He can help you achieve your legal objectives in a cost efficient manner.