Assault and Battery of a Family or Household Member
DOMESTIC VIOLENCE CHARGES IN VIRGINIA
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 for domestic violence 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 client must plead guilty to the domestic violence 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 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. Virginia Code §18.2-57.3 provides for this type of disposition.
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 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 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 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 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.
THREE 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 or authority to dismiss the charges. The decision to dismiss (or nolle prosequi) the charges before trial rests with the prosecutor (called the Commonwealth Attorney in this state). The prosecutor may take into consideration what the complaining witness wants when making a decision. But the discretion rests entirely in the hands of the prosecutor. The alleged victim may be compelled to testify by subpoena unless there are self-incrimination issues.
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 into the sport of hunting, or have access to 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 the crime. 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.
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 and minimize impacts on your employment, security clearance and/or immigration status.