Domestic Assault Defined 

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In Virginia, an assault is considered a domestic assault when it occurs against a family or household member. VA Code § 18.2-57.2. A family member can be a husband, wife, child, cousin, mother, father, girlfriend, boyfriend, etc. In Virginia, domestic assault is punishable as a class 1 misdemeanor, meaning there is the possibility of up to 1 year in prison and up to a $2,500 fine. In general, an assault is defined as an intentional attempt, using violence or force, to injure or harm another person.

 

Being Arrested for Domestic Assault

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Arrests for domestic assault are unique in the sense that police officers must make an arrest of the predominant aggressor if the officer has probably cause to believe a domestic assault has occurred. This course of action is an exception to the usual rule that officers must obtain a warrant before making an arrest for a misdemeanor that did not occur in their presence. VA Code § 19.2-81.3.  

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           "If a police officer has probable cause to believe that a person has committed assault and battery against a family or household member or violated a protective order, the officer may make an arrest without a warrant and should, absent special circumstances, take the person into custody." VA Code § 19.2-81.3.  

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The Issuance of an Emergency Protective Order Following Arrest 

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Following an arrest, a Virginia judge can issue an emergency protective order if the judge finds that there is a danger of further acts of family abuse, and a warrant has been issued for assault and battery against a family member. These Emergency Protective Orders are in effect for three (3) days. VA Code § 16.1-253.4. For more information on the different types of protective order and how to obtain or fight one, see our previous article on the subject here. 

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What Happens if the Victim Doesn't Want to Move Forward in a Domestic Assault Case 

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A common situation that arises in a domestic assault cases is when the complaining witness doesn't want to move forward with charges against a family or household member. Unfortunately, this decision isn't the witness's. Instead, in Virginia, only the prosecutor can make that call. Because the Commonwealth is the one "bringing" the charges, the victim is considered just a witness in the prosecution's case. Therefore, it is important that victims are represented by counsel to protect their rights and interests as a witness during the process. This can ensure the witness is able to assert their rights and an influence how the Commonwealth chooses to proceed with the case. 

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Domestic Assault First Offense Program 

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A noteworthy option for first offender of domestic assault is the differed disposition option of VA Code § 18.2-57.3. This Option allows defendants to be placed on probation and into court ordered anger management and other treatment/education services. If successful, the Defendant may have the charge dismissed after a two year probationary period. To be eligible for this program, the defendant:

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• must have been an adult at the time of the alleged offense;

• must not have been convicted of any assault and battery charge against a family or household member in Virginia or any other state;

• must not have failed to complete a prior deferred dismissal under this law. 

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The down-side of this option is the time it takes to earn a dismissal. In addition, charges dismissed under this code section are not eligible for an expungement from your criminal record. For a recap on what an expungement is and how one is obtained, read our article on the matter here. 

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How We Can Help

 

The Pickett Law Group, PLLC is an experienced law firm with two generations of former prosecutors. We have successfully fought domestic vi in Fairfax County, Arlington County, Loudoun County, and Prince William County. Contact us today for a free consultation.  

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