DOMESTIC ASSAULT AND BATTERY
Why you need me:
(1) Penalties can be severe (2) to protect your criminal record (3) to protect your future employment prospects (4) to protect any custody/visitation issues that you may encounter.
This charge is from a violation of Virginia Code 18.2-57.2 and is considered an assault and battery against a family or household member. It is a class one misdemeanor and can carry up to 12 months in jail and a $2,500.00 fine or both.
Before frightening you with legalese, I will explain how domestic assault and battery is generally handled on a first offense.
Why you were charged:
It arises from a physical altercation between husband and wife or other family member. There need not be real injury, only an “offensive touching”. Once the police are called, they see if there is any physical injury, which can be as minor as a scratch or a slap with reddening of the skin. They bring a warrant against the offending party and both parties may be charged.
How a first offense is generally handled by your lawyer:
If you are charged with a first offense we can negotiate with the prosecutor to have the charge dropped, dismissed or amended to a lesser charge to protect your criminal history. Often this is the case if the victim (your spouse or family member) wants to drop the charges. Only the Commonwealth attorney can ultimately drop the charges, but the victim’s cooperation is very important and the prosecutor will interview the victim on the morning of the case. Also there is a first offender law under 18.2-57.3, COMMUNITY BASED DEFERRAL, for first offenders.
If the Commonwealth and the judge are so inclined, the court can continue the matter under the above code section without a finding for a period of time and have the change dismissed at a later date provided you complete a domestic violence class and get in no further trouble during the time period. This is an option if the case merits it and we have not been able to have it generally reduced to a lesser charge.
Accord & Satisfaction dismissal under Va Code 19.2-51
If the Commonwealth attorney agrees the charge can be amended to simple assault under Va code 18.2-57 removing it from the domestic category, and there is a signed accord and satisfaction from the victim to drop the charges, the court can enter the agreement and the charge can be dismissed that day with payment of court costs.
Consequences of domestic assault and battery:
The consequences can be severe for immigrants that do not have legal status and includes potential deportation for it is considered a crime of violence under Federal laws.
For U.S. citizens, consequences may prevent you from owning a gun, hamper a security clearance, or create employment problems now or in the future, if discovered as a conviction on your criminal record.
An emergency protective order is authorized by 16.-253.4 as standard for several days after the charge and then expires.
Consequences for 2nd and 3rd offenses:
A 2nd offense is still a class one misdemeanor and carries the same consequences as a first offense; however, you are not entitled to the 1st offender law under 18.2-57.3 and a 3rd offense committed within 20 years of the first 2 is a class 6 felony.
There are enhanced consequences for 18.2-51 (ii) and (iii) malicious wounding or unlawful wounding and strangulation under 18.2-51.6, all of which are considered serious felonies.
Household member status:
Under Harris v. Commonwealth (2002), it is based on the parties living together in the same residence, even if the parties are not married.