In Virginia, a physical fight or even an argument with a reasonable threat of violence can result in charges of assault or assault and battery. If the fight or argument is against a family member, someone you live with, or someone with whom you have a child, the charge would be domestic assault.
Domestic assault is a class 1 misdemeanor that carries the risk of up to 12 months in jail and a fine of up to $2,500. If it is charged as a third or subsequent offense, it is a class 6 felony a potential risk for up to 5 years in prison. In some cases, these charges can harm a security clearance for work or destroy an immigrant's legal status in the United States.
You need a lawyer on your side who will work to protect your interests in court and in your life outside of the courtroom. Click here to schedule a free consultation to discuss your assault case or any other crime of violence with Jennifer Raimo.
A DOMESTIC ASSAULT CANNOT BE SETTLED OUT OF COURT
The person who is alleged to be the victim of a domestic assault loses all discretion about whether or not to prosecute the moment the police are called. From that point on, this decision is the state's choice. Police officers are required to arrest someone every time they respond to a domestic violence call and cannot just let it go. Our legislature has authorized the parties to settle their differences with a judge's approval by accord and satisfaction but specifically Prosecutors represent the Commonwealth of Virginia, not the alleged victim. They are supposed to take the victim's interests into consideration but often ignore a victim's request to drop the charge.
A victim who is reluctant to testify should speak with an independent lawyer about what their rights and duties are with respect to a prosecution for domestic assault. The defense attorney who is representing the accused cannot give legal advice to the victim. The prosecutor represents the state's interests, which may or may not be the same as a victim's interests. The victim witness advocate is primarily interested in persuading the victim to cooperate with the prosecutor and not in advocating for what a reluctant victim wants. An independent attorney is the only person who is qualified to look at the case from the alleged victim's perspective and explain victim's rights and responsibilities without any duty to protect anyone else's interests.
If you're charged with domestic assault, you need a lawyer to help you in court. Don't go to court expecting a prosecutor to drop the charge or a judge to dismiss the charge just because you or your loved one wants that to happen. You could lose more than you realize. For more information about domestic assault charges, email me at [email protected] to receive a free report about domestic assault charges or click here to schedule a free analysis of your case.
THE FIRST OFFENDER DIVERSION PROGRAM CAN BE A GOOD DEAL OR THE BEGINNING OF A REAL NIGHTMARE.
Some domestic assault cases can be dismissed without the stress of a trial if you complete certain tasks. There are 3 possible ways to reach this goal, and Jen has experience with all of them.
Virginia Code Section 18.2-57.3 allows first offenders to participate in a deferred disposition program that lasts 2 years. Deferred disposition is fancy legal talk for "diversion program". The program requires the accused to pay the court costs for the case (currently around $106 for people who have retained an attorney and $216 for people who have court-appointed counsel), complete an anger management program and 2 years of probation, avoid any new criminal convictions for 2 years. If the incident involved drugs, alcohol or a mental health crisis, you may be ordered to submit to an evaluation and pursue all recommended treatment. If all those things happen, the court will dismiss the charge but it can never be expunged from your criminal record. Some courts, like Prince William County, require the defendant to be personally present in court for the dismissal. Other courts, like Fairfax County and Loudoun County will schedule the dismissal on an administrative docket and dismiss it in chambers without requiring anyone to be personally present in court.
Virginia Code Section 19.2-298.02 allows us to hand-craft a diversion opportunity. This section requires us to postpone the case for another day and do whatever you are ordered to do, pay the court costs for the case, and avoid any new legal problems. When we return to court, the case will be either dismissed or reduced (whatever you agreed to at the beginning of the deferral). I've had cases where the work required is little to nothing and cases where the defendant was required to do several programs. Probation might be required but does not have to be. After the case is dismissed, the charge can be eligible for expungement if the prosecutor agrees to allow it. When a prosecutor agrees diversion is appropriate for my client, I like to use section 19.2-298.02 to make the length of time my clients wait for the dismissal to be as short as possible.
Finally, when a case against you is weak or the factual circumstances supporting the accusation are minimal but still enough to get a conviction, prosectors will sometimes agree to a general continuance with a side agreement requiring the defendant to complete certain tasks. The beauty of this option is it avoids the need to plead guilty, no contest, or not guilty and it usually does not require the defendant to pay court costs. In domestic assault cases, I've seen defendants agree to do anger management or domestic violence classes, get a mental health and/or substance abuse evaluation, comply with any ongoing treatment (especially mental health medications), go to couples' counseling, move out of the family home, obey an existing Protective Order, and agree to allow a 2-year Protective Order to be entered if the victim witness wants one. Anything is possible.
Immigrants who are not yet American citizens should be very cautious about entering into any diversion program even if they are guilty of domestic assault. Like most diversion programs, the defendant is typically expected to plead guilty or acknowledge the facts are sufficient to find you guilty in order to participate in the program. However, a guilty plea or acknowledgement will make the program the equivalent of a conviction for immigration purposes even though it is not considered a conviction under Virginia law. That can leave the immigrant facing deportation proceedings and make the diversion program worthless to many immigrants who don't want to leave the United States. Fortunately, there is caselaw that can allow an immigrant to participate in a diversion program and Jen knows how to accomplish it.
If you're charged with domestic assault, you need a lawyer to help you in court. Don't go to court assuming a diversion program will fix your problems or the family member is on your side. You could lose more than you realize. For more information about domestic assault charges, email me at [email protected] to receive a free report about domestic assault charges or click here to schedule a free analysis of your case.