The Virginia Criminal Defense Attorney is known for its experience and excellence in criminal defense in Fairfax and all-over northern Virginia. Our attorneys are focused on practicing Virginia criminal law with many years of experience in simple assault cases. Our many years in practice have provided ground to finding various ways of defending our clients charged with simple assault. Our attorneys have come across many loopholes in the numerous simple assault cases they have handled over the years. This has helped them formulate various affirmative defenses to defend you in a simple assault case. Some of the defense techniques include introducing reason and lack of evidence. Our care, dedication and great defenses are why we have earned such a great reputation from our clients.
What is Assault?
Most individuals confuse battery with assault charges and vice versa. Others think that the two terms are one and the same since they have been used interchangeably over time. The fact is that the two are different crimes in the state of Virginia. Assault is defined as a premeditated act by an individual that builds fear to another individual with the intent of inflicting harm or any offensive contact. Basically, it is when you make another individual think that you are going to harm or offensively touch them. Battery, on the other hand, is the actual offensive contact; it does not have to be serious to be considered offensive.
An example of simple assault is when one individual tries to punch a second individual but misses. Note that the assailant need not succeed with their actions to be charged with assault. Though the two are different crimes, they are charged under one law. Common sense dictates that whenever there is a battery, it is possible to come across assault as well. For this basic reason, the two are classified under one law as "assault and battery".
Simple assault, in this case, is the basic crime under the assault and battery law in Virginia. Virginia Code 18.2-57 explains the law and punishment for a simple assault in the said state. The code relies on common law to define the meaning of assault.
Virginia Code 18.2-57 Simple Assault
In a case of Virginia simple assault, both the prosecutor and the judges are provided by the law with a large amount of liberty in the disciplining of the offender as they see fit. The punishment is hinged on several factors, including; the gravity of the deed, the casualty, the injury of the victim, the offender’s criminal background and the circumstances that surrounded the act. Most of these factors will be ruled as a simple assault and classified as class one (1) misdemeanors.
In some instances, the prosecutor might try to show intent in that case. The alleged intent will then raise the bars for the case, adding the jail time if there was any proven intent. Determined evidence will fall under race, national origin or religious conviction. Otherwise, the prosecutor will try to show that the simple assault was on a public servant or a government official. If this is the case, there will be serious allegations on the case which may lead to more jail time.
Penalties for a Class 1 Misdemeanors Case
For this type of a case, if you are found guilty you will be:
- Slapped with a one (1) year prison sentence.
- Pay fines not exceeding two thousand, five hundred dollars ($2500).
Additionally, if the simple assault was against a school teacher or health provider, there will be added sentencing to your charges. The said sentence will include:
- Ten (10) days added sentence if it was a teacher, of which two days will be mandatory,
- A minimum of fifteen (15) days in jail, if the simple assault was on a health provider, of which two (2) days come as mandatory.
Simple Assault Virginia Code 18.2-57(b) Based on Hate Crime
If the simple assault involved hate crime, it will be mentioned as a bias-motivated crime. Motivated crimes are offenses performed against certain people in relation to their race, belief, culture, sexual category, sexual orientation or disability. A report made by the federal Bureau of Investigation (FBI) in 2012, gave a result of five thousand incidents that involved hate crime.
In Virginia, the criminal code on simple assault based on religion or ethnicity is under section 18.2-57(b). It describes hate crime as "criminal acts performed to another individual with the specific intent of instilling fear or intimidation on the individual with the act being based on race, ethnicity, e.t.c.". Because of this offense, one faces greater penalties when compared to the basic simple assault charge.
Penalties for Simple Assault Based on Hate Crimes
- The charge will be classified as class one (1) misdemeanors.
- The hate crime elements will carry a strict penalty of an extra half a year inside the county jail, with the minimum mandatory incarceration being thirty (30) days in county prison.
- Fines amounting to two thousand five hundred dollars ($2500).
If the simple assault is proven and battery took place resulting in injury to the victim, the crime will be prosecuted as a class 6 felony. The crime no longer is charged as a class one (1) misdemeanor but a felony.
What to Do or Not to Do if Facing Simple Assault Charges in Virginia
- Contact a simple assault defense lawyer: This is a smart move for you as the defendant. Although the case may seem minor, it takes an attorney with years of experience to make sure your defense is solid to ensure the best possible outcome.
- Do not contact the victim or complaining witness: From this vantage point, the defendant contacting the victim could be used against them as evidence in court. It is better to hold your ground and stay away. Do not try to apologize, talk or be associated with the alleged victim.
- Preserve the evidence that might help your case. Since you are the one being charged with an offense, the police evidence will not help you. Show the evidence that is related to helping you to the defense attorney, they will help gather and preserve it.
What a Prosecutor Should Prove for a Simple Assault Conviction
For the prosecutors to obtain a conviction, they have to prove all the essentials of the crime. They must prove all these elements beyond a reasonable doubt without falling for any potential affirmative defenses. The following are the factors of the simple assault conviction:
- The act was mainly intended was to generate fear: The perpetrators intent was to create a state of fear in the victim. The intent is very hard to prove. In the state of California, however, there is a lawful principle that defines the individual intent being the natural and probable consequences of their acts. It simply means that when you punch a person in the face, for instance, it is concluded that your intent was to hit them. If the defendant stated that they were angry and wanted to hit the victim, this will be used to prove intent.
- Reasonable apprehension: The meaning of reasonable apprehension is fear justified under given circumstances. The victim had a reasonable belief that the defendant would inflict harm on them. The casualty must have perceived the defendant's acts.
- Imminent harm: The victim had to experience fear in reaction to the threat that was about to occur. The use of future fears such as, “I will shoot you next month”, will not lead to a simple assault charge but that does not mean you won’t be charged with other crimes.
- It was not affirmative defense: This is referred to as self-defense. In this case, the prosecutor needs to show that the defendant was not defending themselves in the situation concerning the victim. If the defendant committed the alleged act, what evidence shows that it was not a reaction based on the situation on the ground? The evidence the prosecutor has to prove will be through witnesses or the police who led the arrest. The prosecutor also needs to show that the eye witness is not biased to the victim.
Legal Defenses for Simple Assault Charges
This is the most strategic move an accomplished attorney could use and the best way to clear your criminal charge. For the lawyer to prove that you used self-defense, they need to show:
- There existed a sensible fear that there was imminent harm upon you.
- The victim presented a threat of force or harm that caused you to react.
- The fear and threat came without any harm or any provocation on your part.
- It was impossible to escape such a situation or even retreating from the confrontation.
The constraint with self-defense is that if you used force to defend yourself, that amount of force will be up for explanation. The extent of the force you used should be proportionate to the threat that was postured by the offender.
b) Useful evidence
An eyewitness can be used to defend your part of the story. If there is a conflicting section between what the victim claims and the eyewitness’ report, then your defense attorney can bring in reasonable doubt to the evidence. Proof of the alleged injuries could also be used as testimony. Your attorney could subpoena the medical records of the victim in a simple assault charge and talk to anyone mentioned in the police report. In certain situations, if the charge is serious the defense attorney will have to hire a private investigator.
The main purpose of the investigator is to collect any evidence by talking to the witnesses involved in the report and see if they can account the crime as recalled and stated by the officers involved. If the assault took place in a public area, CCTV feed could be used as evidence to prove you are not guilty. Take an Instance where it is a crowded bar. The attorney could show the testimony as not being serious because you cannot make out the defendant.
c) Dropping the charge
Only two people can drop a charge: the prosecutor and the judge. The prosecutor can drop the charge by nolle processing. The power to do this is if the assault was pretty weak. Other times, the prosecutor can drop the charge as a result of not proving the charge. This happens when some of the victims cooperate with the prosecutor. The result is sometimes reversed and the alleged victim gets charged with filing a fake report. If the victim’s eyewitnesses do not remember the events that occurred, it will result in the case being dropped.
d) Plea to a Lesser Charge
The defendant has the option to appeal for a lesser charge. The prosecutor can agree to dismiss the assault charge only if the defendant pleads guilty to disorderly conduct or public affray. More so if the assault involved shouting and shoving. One good example is of a bar-room brawl or argument that got out of hand between two neighbors. The prosecutor will likely agree to the plea if it did not involve any serious violence.
Related Charges to Simple Assault
This is usually referred to as felony malicious wounding and felony unlawful wounding. It is found under Virginia code 18.2-51. If an individual has a malicious intent that includes shooting, cutting or wounding any person leading to maiming, disfigure or killing, they will be convicted with class three (3) felony. According to the statute, the jail sentence is up to twenty (20) years in state prison. The mandatory minimum is up to five (5) years. The defendant will pay a fine not exceeding one hundred thousand dollars ($100,000). Additionally, if the act is not malicious and the intent is not proven, then the defendant will be guilty of a class 6 felony, and the punishment will be up to five (5) years in prison with up to two thousand five hundred dollars ($2500) in fines.
Assault on a Civil Officer on Duty
If an officer is performing their official duties and you attack them, it will result in a class six (6) felony conviction. Of which the minimum jail sentence of six (6) months is mandatory. If the case is serious, the crime is punished with up to five (5) years in state prison and fines of up to two thousand five hundred dollars ($2500). Assaulting or battery of a probation officer will be convicted as a class five (5) felony and the jail term is up to ten (10) years. If you disarmed the officer, the case will be classified as a class 1 misdemeanor. The sentence will, however, change if you took a gun or a stun gun from the said officer to a class six (6) felony.
The charge falls under Virginia code 18.2-57.2 and might be charged differently from simple assault. The lawful definition of assault and battery are broad and the charges are investigated by the police if the case had an actual injury, markings or a substantial emotional effect on the victim. If you are convicted of this crime, it will be considered as a class one (1) misdemeanor.
Threats Under Virginia Law
Threatening and Assault while Executing a Robbery
The mandatory minimum sentence is five years (5) in prison in the event you are proven guilty of battery, assault or threatening a victim during the act of robbery. These actions will be charged under the Virginia code 18.2-58 as a felony. It clarifies that if you put a person in fear of severe physical harm by presenting a firearm or any instrument, you will be punished by incarceration in a Virginia state penitentiary for more than five (5) years to life.
Threatening over the Telephone.
Under Virginia code 18.2-427, you will be found guilty if you used profane language, threats or indecent words over any public airwaves. The immoral acts include; intimidating, coercing or harassing. The case will fall under class 1 misdemeanor and the punishment will be exactly as assault and battery.
Threats in Writing or Email
When you are found guilty of using written threats in an email, this will be classified as class six (6) felony. You will be punished with up to five years (5) in the state prison if you threatened a member of your family. Moreover, if those threats place the same person under reasonable fear of either death or injury, you will be charged under the Virginia act (VA code 18.2-60). In addition, threatening an individual through writing is more serious than doing it in person.
Find a Virginia Criminal Attorney Specializing in Simple Assault Near Me
Involvement in a case concerned with simple assault could be quite uncomfortable if you are found guilty. The most important thing to note is that it could end up tarnishing a good reputation. In case you are charged for simple assault, it is better to seek out a criminal defense attorney who knows how to navigate a charge like this and will walk with you every step of the process. At the Virginia criminal attorney, we have practiced assault law in Northern Virginia for many years and have gotten the best results for our clients. This is the experience you need to defend your case. Don’t wait, call our Fairfax criminal lawyer today at 703-718-5533 for a free case evaluation.