Article was last updated: Sept. 5th, 2023
What should you do if your girlfriend or wife – or your boyfriend or husband – calls the police, claims that you committed domestic assault, and you’re charged with a crime? In or near the Roanoke area, you must contact a Roanoke domestic violence defense attorney immediately.
And what happens if the person who reported you later changes his or her mind, decides that no domestic assault happened, and seeks to have the charge against you dropped? Can an alleged domestic assault victim have the charge dropped or the case dismissed?
If you’ll continue reading, you’ll learn the answer to that question. You’ll also learn more about your rights if you’re charged, rightly or wrongly, with a domestic violence crime in this state, and you’ll learn how an attorney will defend you and bring the case to its best possible outcome.
How Does Virginia Define Domestic Assault?
Domestic assault happens in Virginia when spouses or ex-spouses, family members, or persons residing in the same household are involved, and when someone:
- touches a spouse or ex-spouse, a family member, or a person residing in the same household in an intentional and angry, vengeful, or rude manner with no legal justification
- takes action to harm or injure a spouse or ex-spouse, a family member, or a person residing in the same household, and has the ability to carry out that harm or injury
- takes action that causes a spouse or ex-spouse, a member of the family, or a person residing in the same household to fear being harmed, and in fact causes the fear of being harmed
How Are Domestic Assault Convictions Penalized?
A first domestic assault offense in Virginia is usually charged as a Class 1 misdemeanor. A first conviction for domestic assault may be penalized with up to a year in jail and a fine of up to $2,500. However, previous convictions may mean a stiffer sentence.
If the defendant has two or more domestic violence convictions within the previous twenty years – including domestic violence convictions from other states – a domestic assault will be charged as a Class 6 felony, and a conviction could land the defendant in prison for five years.
A conviction for domestic assault can also mean losing the right to buy or possess a firearm, a ban on any contact with the victim, and a probation sentence that may compel attendance at domestic violence classes or a psychological evaluation to determine if treatment is needed.
If you are an immigrant in Virginia, a conviction for domestic assault may lead to a deportation proceeding. If you hold a professional license in this state, a conviction for domestic assault may lead to a disciplinary move by your professional licensing board.
Who Brings Criminal Charges in Virginia?
An alleged domestic assault victim can’t have a criminal case dropped or dismissed in the Commonwealth of Virginia. After a charge has been formally filed, the alleged victim has no say over what happens next.
In fact, the affidavit in Virginia includes the following language: “In making this complaint, I have read and fully understand the following: By swearing to these facts, I agree to appear in court and testify if a warrant or summons is issued. The charge in this warrant cannot be dismissed except by the court, even at my request.”
Criminal charges in Virginia are prosecuted by the Commonwealth’s Attorney, who represents the Commonwealth. A prosecutor will listen and take a victim’s wishes seriously, but the victim cannot drop a charge and does not have the final say.
In domestic assault prosecutions, the evidence typically includes the victim’s testimony, the statements of other witnesses, pictures or video evidence, and medical records if medical treatment was provided.
Obviously, the prosecution’s job of winning a conviction for domestic assault is going to be more difficult without the victim’s testimony and cooperation.
Why Do Prosecutors Sometimes Not Follow a Victim’s Wishes?
Before a prosecutor drops a domestic assault charge, or even considers dropping such a charge, that prosecutor wants to make sure that the purported victim is protected from domestic assault in the future.
Thus, a domestic assault prosecution may proceed, even if a victim changes his or her mind, and a defendant will require sound advice and aggressive, effective representation. If you’re charged with domestic assault, you must be defended by the right Roanoke domestic violence lawyer.
It’s different in the civil courts. If a spouse or intimate partner brings a lawsuit for damages or child custody, for example, that person may drop the lawsuit at any time. It is only in the criminal courts that a spouse’s or partner’s change of mind may have no effect on the case.
What Will a Defense Lawyer Do on Your Behalf?
If your domestic assault charge can be dismissed or dropped, the right lawyer will find a way. Your lawyer will conduct a full investigation of what happened and may, after that investigation, be able to convince the prosecutor to drop the case – or convince the judge to dismiss the charge.
If the purported victim wants the charge dropped, your defense lawyer may obtain a statement from that person that clarifies or corrects what was first told to the police. If your case goes before a jury, that statement may be enough to cast doubt on the prosecution’s case against you.
If no one was injured, and if there’s little if any physical evidence, a domestic assault case is basically the victim’s word against the defendant’s. If a prosecutor cannot prove the defendant’s guilt beyond a reasonable doubt, the case will be dismissed or the jury will return an acquittal.
A Good Lawyer’s Help Is a Must
If the case against you for domestic assault is conclusive, and your conviction is inevitable, your attorney will negotiate for an acceptable plea agreement and sentencing agreement. If you are not guilty, your defense lawyer will fight forcefully and effectively for the justice you need.
Every domestic violence case is unique. A good attorney can almost always discredit a fabricated domestic assault claim. If you were defending yourself, your lawyer will explain to the court what happened. If you were protecting your property, that may also be a winning defense.
If you are accused of domestic assault in Virginia, the right Roanoke domestic violence defense attorney can make the difference, win justice on your behalf, and bring the matter to its best possible outcome.
