DOMESTIC VIOLENCE

§18.2-57.2 Assault and battery against a family or household member

A.            Any person who commits an assault and battery against a family or household member shall be guilty of a Class 1 misdemeanor. Remember a Class 1 misdemeanor is, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

B.            On a third or subsequent conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that (i) such person has been previously convicted twice of assault and battery against a family or household member, or of a similar offense under the law of any other jurisdiction, within ten years of the third or subsequent offense, and (ii) each such assault and battery occurred on different dates, such person shall be guilty of a Class 6 felony. …

Over the past five years, the laws regarding assault and battery of a family member have been evolving. The Federal and State governments have provided additional funding to address this issue.  This includes funds to hire State prosecutors to handle all domestic violence cases.  This is a significant step leading to the prosecution of many more domestic violence cases.

Historically, a law enforcement officer could not make an arrest for a misdemeanor that was not committed in his presence. Therefore, an officer could not arrest an individual for assault and battery unless he saw it occur. Thus, the victim had a choice to prosecute the matter or not, if they chose to prosecute the matter, they would go to a magistrate and file a warrant for assault and battery.  Then later in court, if the victim wanted to “drop” the charges, the Court could dismiss the matter. FLASH: the state law has been changed to allow law enforcement officers to make an arrest for assault and battery against a family or household member that occurred outside of his presence. The Code of Virginia, 1950, as amended, states in part §19.2-81.3. A. Any law-enforcement officer, …, may arrest without a warrant for an alleged violation of assault and battery against a family or household member, … regardless of whether such violation was committed in his presence, if such arrest is based on probable cause or upon personal observations or the reasonable complaint of a person who observed the alleged offense or upon personal investigation. B. A law-enforcement officer having probable cause to believe that a violation of assault and battery against a family or household member occurred or a violation of a protective order has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the primary physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest.
Therefore, the officer becomes the person making the complaint and filing for a warrant with the magistrate.  This means that the victim cannot “drop” the charges unless the Commonwealth’s Attorney or law enforcement officer and the Court agree that it would be the proper disposition of the case.

Upon the filing of the warrant by the officer, the magistrate will issue an emergency protective order.  A emergency protective order generally prohibits acts of family abuse; prohibits contacts by the accused with family or household members of the accused as the judge or magistrate deems necessary to protect the safety of such persons; and grants the family or household member possession of the premises occupied by the parties to the exclusion of the accused; however, no such grant of possession shall affect title to any real or personal property. Lastly, an emergency protective order shall expire seventy-two hours after issuance. If the expiration of the seventy-two-hour period occurs at a time that the court is not in session, the emergency protective order shall be extended until 5 p.m. of the next business day that the juvenile and domestic relations district court is in session. The accused may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court. §16.1-253.4   Further, the victim of the assault and battery may request a preliminary protective order, which is generally a continuation of the emergency protective order for a period of one year. The preliminary order shall specify a date for a full hearing. The hearing shall be held within 15 days of the issuance of the preliminary order. § 19.2-152.9.  It is highly advised to bring an attorney with you to this proceeding.

At trial for the charge of assault and battery against a family or household member, the accused can plead not guilty, no contest or guilty. If this is the first offense, the state law allows for an opportunity for first offenders to be placed on probation.  However as a condition of local probation, the court shall require the accused to successfully complete all treatment and/or education programs required. The court shall further order the accused to be of good behavior for a period of not less than two years following the finding of facts that would justify a finding of guilt. §18.2-57.3  If the accused complies with the probation, the matter will be dismissed   However, there are two things to remember: (1) no charges dismissed pursuant to this section shall be eligible for expungement and (2), whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of §18.2-308 (concealed weapons statute)  

As you can see, this area of the law is quite complicated in that many laws refer to other laws that may greatly impact upon your rights.  If you find yourself in this position, it is imperative that you seek a skilled trial attorney.