The Commonwealth of Virginia Counties - Arlington - Alexandria - Fairfax - Prince William - Stafford - Fauquier - Loudoun - Winchester - Culpeper
Ignorance of the law is not a defense to breaking the law. Yet a great majority of the public do not fully comprehend the legal terms written in statutes nor their meanings. This could be dangerous when a member of the public is unaware of what acts are proscribed as legal or illegal. We know that statutes are written by the legislators. Some are clear and concise. Others require being defined by addressing in the courts on a case by case basis.
“Assault and Battery” criminal cases and defenses to such a charge are determined on a case by case basis. Therefore an ordinary lay person may not understand that grabbing a phone from his or her spouse can result in being charged with a domestic assault under Virginia Code 18.2-57.2. Spitting on a stranger’s face can lead to a charge under Virginia Code 18.2-57 ( Assault and Battery). Criminal convictions are serious. They can easily affect you in areas of education, employment, security clearance, and immigration. Not to mention your reputation with family, friends, and members of the community.
We have all heard the phrase “Assault and Battery”. But who really knows the legal definition(s)? Most of us have studied government at school, we watch television, we listen to podcasts. But does that really teach us which acts are legal and those which are not. Do we know the actual legal terms and meanings defining which acts can get us into legal trouble? Are the elements of the crime “Assault and Battery” statutorily defined in such a manner that the public can comprehend what constitutes the crime? The answer is yes and no. Many people understand from laws that it is not fine to walk up to someone and punch them in the face. Where a lack of comprehension may exist is understanding what does it take exactly to constitute an assault. When one shouts words to incite a crowd - is that enough? Or is it required that one takes some type of overt physical action to be charged with a crime. Sometimes an individual does not learn that which is wrong and that which is right until it is too late. If you are walking down the hall at school and you elbow another although there is no physical pain - is that a battery? When the police come knocking on your door - you normally have a problem. It’s a good thing to call a Fairfax criminal defense attorney right away - whether or not you have been formally charged. Trying to handle on your own can land you in deep waters when a highly experienced lawyer could have helped you avoid trouble.
In the Commonwealth of Virginia - since the criminal statutes do not define the elements of the crime “Assault and Battery” - If charged - you should contact Attorney Sheryl Shane
to perform a thorough investigation and research the caselaw. It is highly recommended that you do not speak without advice of a seasoned attorney. Attorney Sheryl Shane has been licensed as an attorney for twenty-seven years and possesses years of trial experience.
She covers criminal and traffic cases in Alexandria, Arlington, Fairfax, Prince William, McLean, Great Falls, Vienna, Sterling, Oakton, Ashburn, Leesburg, Stafford, Culpeper, Fauquier, Winchester, and others. Do not simply try to google the law and teach yourself. There are two legal terms at play when attempting to understand the charge of “Assault and Battery”. Both are legal concepts and possess distinct elements. Good arguments for defense may change over the years. Don’t listen to friends who had cases in the past and insist they have a great defense which will work today. Make certain - you are up to date.
Hire the right lawyer! Attorney Sheryl Shane - Text (703-718-5533)
WHAT IS AN ASSAULT?
Generally, a Criminal Assault is any type of act where the aggressor intends to put the other in reasonable fear of imminent physical injury. Law enforcement may ask:
- Was there intent;
- Was there an overt act intended to inflict bodily harm;
- Was there a present ability to inflict bodily harm;
- Did the assailant intend to place alleged victim in fear or apprehension of bodily harm;
- Did the aggressor create reasonable fear or apprehension in the alleged victim?
Once, probable cause is found - law enforcement will most likely make arrest. Yet, there are exceptions.
BATTERY - WHAT IS THIS TERM OF ART?
An accused who willfully touches another and has no justification - no legal excuse, and has done so in a rude, angry, vengeful, or insulting manner may be charged under the crime of “Assault and Battery”. So, in Virginia - there does not have to be evidence to charge someone for both assault and battery. Battery alone is enough.
- When injury is inflicted - no matter how slight - a battery may exist.
- The definition of battery would require an actual infliction or corporal hurt.
- Slight toughing of another in a willful or angry manner may be enough to constitute Battery.
- For battery to occur - setting some means in motion may be considered in order to criminally charge. The battery is not required to be done by one’s own hand.
ASSAULT AND BATTERY CASE LAW TO ADDRESS:
- Assault and battery is the unlawful touching of another.
- The least touching of another, in anger, or in wilfull manner may be enough to convict.
- The law does not require the assailant to have intended any harm. A battery conviction may be based on act involving insult or in the spirit of rudeness.
WHAT IS THE DIFFERENCE BETWEEN SIMPLE ASSAULT & BATTERY versus DOMESTIC VIOLENCE?
GENERAL DISTRICT COURT
Well some of the terms of Assault & Battery have been discussed in the preceding paragraphs. Now let’s address the process of the cases. When there is a misdemeanor simple assault charge - the case will usually be initiated at the general district court. The warrant will have already been served on the accused. The law enforcement will have forwarded it to the general district court. The clerks than will enter and begin setting court dates. General District Court is not a court of record in the Commonwealth of Virginia. This court will normally hear misdemeanor cases from beginning to end. The exceptions are when:
- The Commonwealth chooses to indict the accused up at Circuit Court (A Court of Record), or
- There is a misdemeanor appeal to the Circuit Court.
JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT
A domestic violence case usually begins at the Juvenile and Domestic Relations District Court. In these cases - the prosecutor must demonstrate that the accused committed an assault and battery against family or household member. A household member is defined by statute. For those defendants, who are not yet citizens, domestic violence charges may result in much harsher consequences versus simple assault. For both “simple assault” and “domestic violence” - always be cautious regarding your immigration status. Obtain professional assistance regarding your possible immigration status if convicted.
POSSIBLE DEFENSES TO ASSAULT AND BATTERY and DOMESTIC VIOLENCE:
- The absence of the criminal elements
- Self- defense
- Mutual Combat
THE COMMONWEALTH OF VIRGINIA HAS CREATED STATUTES FOR
AGGRAVATED FORMS OF ASSAULT
One found guilty of the charge of strangulation will suffer a felony conviction. In order to prevail on a strangulation charge, the Commonwealth Attorney must demonstrate several elements of the charged crime:
- That the Defendant applied pressure to the neck and there was no consent;
- The blood circulation or respiration was impeded;
- That when the Defendant applied pressure to the neck - a wounding or bodily injury occurred as a result.
- That the Defendant committed this act intentionally, knowingly, and unlawfully.
The Defense Attorney may again argue lack of proof, or that that the alleged victim consented to such in role playing or sex games, or that the alleged victim was the instigator in some fashion. Often times, law enforcement attempts to obtain statements from the alleged victims. There is often a strong push to have the alleged victim go to the hospital.
This helps the Commonwealth build their case.
There are several symptoms to check when one is believed to have been strangled. Look at those listed below:
Neurological: Headaches - Fainting - Loss of Memory - Loss of consciousness - Dizziness - Sensation loss - Difficulty speaking’
Eyes - Doctors will check for Petechiae to the eyeball and eyelid. They will look to broken blood vessels. Questions will be asked regarding vision changes.
Physicians will also check for Petechiae on the face for scratches and swelling.
Ears and Mouth will also be inspected for same type of injuries. Regarding the ears - some victims may hear ringing after the fact.
Some patients will suffer consequences of abrasions, bruising, chest pain, inability to speak, trouble swallowing, coughing, drooling, and nausea.
If you are charged with Strangulation, you should understand that the Commonwealth of Virginia is going to do their best to show that you restricted the victims breathing from outside the throat. That perhaps you were even attempting a homicide. That you wanted such control as to determine whether that person was able to take one last breadth. They may argue that the strangulation could have very easily been fatal. Points will be made that the victim will in all likelihood suffer long term psychological effects. The harm you caused was substantial. Use care.
You need an attorney who is familiar with Strangulation Law. A thorough investigation of witnesses, photographs, recordings, medical documentation, and such must be pursued in depth. Prepare wisely and do your best to create a strong defense.
MALICIOUS WOUNDING - Virginia Code 18.2-51
Malicious wounding is a much more serious offense versus assault and battery. It is a felony and if convicted of the crime - the defendant may be sentenced up to twenty years. The accused must have been shown to:
- Shoot, stab, cut, or wound
- Or caused bodily injury by any means to another;
- And that the shooting, stabbing, cutting, or wounding (bodily injury) was performed with intent to permanently maim, disfigure, kill, or disable; and
- That there was Malice.
Since Malice must be shown to convict the accused of malicious wounding - the factfinder whether it be a judge or jury member - must look to the actor’s state of mind when the defendant committed the act. Was the accused under control of reason. Was there an intentional doing of a wrongful act? Can we look to self-defense of one’s self or the reasonable defense on behalf of others. Did any legal excuse or justification exist for committing such an act? Now, you may ask, “Who will make these determinations”? Well if there is a bench trial - the Judge will decide the law and facts. If the trial is by jury - the Judge will rule on the law and the Jury will determine the facts and apply the law instructed by the Judge. Either way - the factfinder is permitted to infer malice from any willful, deliberate, and cruel act against a victim. Malice may be found - no matter how sudden the act occurred.
What if we have a situation where an individual commits the same act as with the malicious wounding but there is no malice. There are cases when the accused utilizes external violence to cause a wound or bodily injury. An illustration of a wound would be a breach or disruption of skin such as a cut or bullet wound. A bodily injury may include damages or hurt to another’s body, an impairment, and unjust or undeserved infliction of harm. An example may be an unobservable injury to the kidney. Should this person be held to the same accountability as the person who committed a malicious wounding? Someone who had malice aforethought?
AGGRAVATED MALICIOUS WOUNDING
In aggravated malicious wounding cases - the court requires that the prosecution to show that as a result of the shooting, stabbing, cutting, wounding, or causing bodily injury, the victim was severely injured and caused to suffer significant and permanent physical impairment. And aggravated malicious wounding is extremely serious in that the defendant may face a lifetime of incarceration with a minimum of twenty years mandatory time if found guilty of the offense.
ASSAULT AND BATTERY ON CERTAIN CLASSES OF PERSONS
Should there be a class of persons who deserve more protections than the general public when it comes to being a victim of assault and battery. Well, the law is clear. Judges, law enforcement, some correctional personnel, those charged with treatment of sexually violent predators, firefighters, and some emergency medical services personnel may qualify.
That is if they were engaged in the performance of their duties when the offense(s) against them occurred). In these cases - the accused are charged with felonies.
REPEAT OFFENDERS - DOMESTIC VIOLENCE AND OTHER VIOLENT CRIMES
We have discussed the elements of a domestic violence case. We understand that a first offense is a class one misdemeanor in the Commonwealth of Virginia. Domestic violence involves a family member or household member. This statute may entail members of the family who live inside or outside of the house depending on the victim’s position in the family unit. For instance the status of a spouse may differ from that of a daughter-n-law when determining whether or not the case is a simple assault versus a domestic violence case. A spouse is considered a family member whether or not he or she resides with the aggressor. The same cannot be said for the daughter n law.
Now, when there is a third offense charged against an individual for an assault and battery against a family or household member, and within the last twenty years and on different dates the accused was convicted of domestic violence, malicious wounding, aggravated malicious wounding, strangulation and similar statutes from different states, the defendant may be found guilty of a felony for it being the third offense or more.
JURISDICTION - ASSAULT AND BATTERY - CHILDREN
Cases involving children charged with crimes normally begin at the juvenile and domestic relations court. These can include strangulation, assault and battery, malicious wounding, unlawful wounding, aggravated malicious wounding, and more. The JD & R court will generally hear juvenile cases involving misdemeanors to final resolution. Preliminary hearings will be available to determine probable cause for felonies charged against minors at the Juvenile and Domestic Relations District Court. Charges against minors which are deem serious enough in nature may result in the child being certified as an adult. In these circumstances - the punishment(s) may be much more severe.
ASSAULT & BATTERY SENTENCING
When one breaks the law in the Commonwealth of Virginia, punishments may vary.
As mentioned earlier, an assault and battery may be charged as either a misdemeanor or felony depending on the facts and circumstances of the case. A class one misdemeanor can land you with confinement in jail for not more than twelve months and/or a fine.
The court may order a sentence and suspend time or impose all of the time. Probation may be attached. Anger management or Domestic Violence Courses may be required. When alcohol or drugs appear to have been involved - a screening and follow courses may be required. And don’t forget restitution - you may be required to pay for damage you caused.
In situations - where the client is charged with a felony, this attorney immediately discusses the case in full, researches up front, and runs the Virginia Sentencing guidelines when able. The client should be made aware of the seriousness of the case.
FELONY PUNISHMENTS - GENERAL INFORMATION - HAVE LAWYER EXPLAIN MORE FULLY
Class 1 - Felony: Imprisonment for life and possible fine.
Class 2 - Felony: Imprisonment for life but not less than twenty years and possible fine.
Class 3 - Felony: not less than five years nor more than twenty and possible fine.
Class 4 - Felony: not less than two years nor more than ten years and possible fine.
Class 5 - Felony: not less than one year nor more than ten years and possible fine.
Class 6 - Felony: not less than one year nor more than five. The client can be incarcerated in the local jail for up to twelve months for a class 6 Felony. A fine may also be imposed.
Regarding felonies, have your lawyer explain to you:
- Sentencing guidelines if applicable and Sentencing hearing procedure.
- Review possible sentence and fines, and if applicable - restitution.
- The Discretionary Virginia Sentencing Guidelines.
- Possibility of Suspended term of confinement.
- Post release supervision.
- Compliance with terms of sentencing.
- Possible violations of probation and the consequences.
- Motions to reconsider and Appeal.
KNOWLEDGEABLE AND EXPERIENCED ATTORNEY
In today’s world - taking into account that COVID is causing severe turmoil on the Virginia Judicial System, the jails, and prisons…. You really need to hire a great lawyer fast. With Covid running rampid and causing continuances and longer incarcerations - you need to build your defense fast and right from the beginning. The minute you learn there is a possible charge coming your way - take care of it. Call or Text Attorney Sheryl Shane at 703 582 8119.
Prepare your strategy right away - look at evidence as it becomes available - take control of your life! Obtain the tools you need - to obtain your best result!
Contact: Attorney Sheryl Shane at 703-718-5533. Text and you will receive a response right away. Use the website phone and our service is ready willing and able to help at all hours of the day and night.
Serving: Fairfax, Arlington, Prince William, Stafford, Fauquier, Culpeper, McLean, Great Falls, Sterling, Herndon, Vienna, Fairfax City, Leesburg, Loudoun. Frederick, Carroll