Assault and Battery Defense Lawyers in Virginia

Virginia CodeThe criminal lawyers at Livesay & Myers have years of experience in aggressively defending clients against assault and battery charges in Northern Virginia.

What Constitutes An Assault in Virginia?

While the crime of Assault and Battery is found in Virginia Code § 18.2-57, the terms aren’t defined there. Assault and battery are “common law” crimes, so their definitions have been developed over the course of many years and can be found in legal dictionaries or in written judicial opinions. Assault is defined as basically any “overt act” to another person that is done with the intention of creating fear of harm. It can be an assault to create fear of harm even if you don’t have the ability to cause the harm—if it is reasonable for the person to have the fear. So, you can be charged with assaulting someone if you verbally threaten to hurt them, or make a physical move that would indicate you intend to hurt them. You don’t have to touch anyone to commit an assault.

So What is Battery Then?

Battery is defined as “the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting or vengeful manner.” When someone is charged with assault and battery (“A&B” for short), usually it is for the completed act of battery—actual physical contact made to another person without justification. These two examples illustrate what may or may not constitute a battery:

Example 1. John taps Michael on the shoulder to get his attention, and Michael turns around and says “don’t touch me.” John has not committed a battery against Michael, because his touching Michael was not done in “an angry, rude, insulting or vengeful manner.”

Example 2. After Michael says “don’t touch me,” John continues to tap Michael on the shoulder—again and again. John may now have crossed the line into an assault and battery, as he is now touching Michael in an “angry, rude, insulting or vengeful” (rude, at the very least) manner.

Battery can include, but is not limited to: punching, kicking, slapping, biting, pulling, pushing, bumping, grabbing, squeezing, throwing an object, striking someone with an object, and knocking an object out of someone’s hand (even without coming into physical contact with the person).

What About Self-Defense?

It is an oversimplification to say that hitting someone first is a battery, but hitting them back is self-defense. Our article, Self-Defense vs. Assault and Battery in Virginia, describes in more detail the relationship between self-defense and assault and battery. Basically, self-defense is committing a battery with legal justification: hitting, pushing, scratching, etc. a person who placed you in “reasonable fear” of “imminent danger of bodily harm,” where your actions were “reasonably necessary to protect” yourself. An act that began as self-defense can cross the line into a separate crime of battery if you use excessive or unreasonable force in defending yourself.

What If You Were Both Fighting and No One Knows Who Started It?

According to the United States Supreme Court, participants in mutual combat are both wrong-doers. Rowe v. United States, 164 U.S. 546, 556 (1896). Anyone engaging in a fight could be convicted of assault and battery. In a case where all the combatants invoke their Fifth Amendment rights and refuse to testify, the government can have a tough time prosecuting any of them. If there are independent witnesses, however, such as a police officer or a bystander, then everyone involved in a fight might be charged. The Supreme Court also states in the Rowe case that even if you start the fight, if you withdraw from the conflict and express your desire for peace, but the other party continues to fight and you defend yourself, you could have a self-defense case.

What If the Assault & Battery Was Against a Family or Household Member?

This offense, a violation of Virginia Code § 18.2-57.2, is commonly referred to as “domestic assault and battery.” That term covers assault and battery between family members, extended family members, in-laws if they live in the same household, former spouses, people who are cohabiting (living together romantically) or have done so in the previous year, and between people who have children together even if they don’t live together or were ever married. There are several important implications to being charged with a domestic assault vs. a regular assault:

J&DR Court. Domestic assault and battery cases are tried in the Juvenile and Domestic Relations District Court (“J&DR Court) rather than the General District Court.

Emergency Protective Order. When you are arrested for a charge of domestic A&B, an Emergency Protective Order (“EPO”) will automatically be issued. An EPO lasts 72 hours (unless the 72 hours expire before court is in session, in which case the EPO will last until the next scheduled court opening). An EPO will usually grant exclusive use of the parties’ residence to the alleged victim (meaning the accused must find a place to stay and may not even be able to pick up their personal property), and prohibit any and all contact between the parties as well as between the accused and any other individuals in the home (such as children). The alleged victim can elect to appear in court to request an extension of the protective order, which would last 15 days and trigger an automatic hearing that in turn could result in a protective order lasting up to 2 years. Alternatively, the EPO can expire, and the accused can theoretically resume lawful contact with the alleged victim and return to the residence.

Gun Rights. Domestic violence charges and protective orders can impact a person’s ability to carry or use a firearm, which can have a wide-ranging impact, particularly on those in law enforcement or the military. See Domestic Violence and Gun Rights in Virginia for more information.

First-Offender Disposition. If you are charged with a domestic A&B and you have never been charged with one before, you are eligible for a first-offender disposition under Virginia Code § 18.2-57.3. That statute grants the trial court the discretion to defer a finding of guilt for 2 years. During that time you would be placed on probation, be required to complete certain terms and conditions like completing a domestic violence class, pay court costs, maintain good behavior, and commit no new crimes. If you successfully complete these terms, then the judge would dismiss the charge against you. This option is extremely useful in some cases, as it allows the defendant to avoid the risk of a trial and subsequent conviction, and possibly a serious punishment like jail—and avoid having a criminal conviction record. See Deferred Disposition in Virginia for more information.

Can You Be Charged With Domestic Assault for Spanking Your Own Child?

Corporal punishment is not, in and of itself, illegal in Virginia. However, depending on the circumstances you can indeed be charged with domestic assault for spanking your own child in Virginia. See Corporal Punishment in Virginia: Is Spanking Legal? for more information.

What Are the Maximum Punishments for Assault & Battery in Virginia?

Simple assault, assault and battery or domestic A&B are generally Class 1 Misdemeanors. This means that the matters are first heard in a district court by a judge only. The maximum punishments are up to 12 months in jail and a $2,500 fine. If you are convicted, you have the automatic right to appeal the conviction or sentence to Circuit Court for a new trial, wiping away your conviction and sentence, giving you a new judge, or a seven-person jury if you wish. But there are some violent offenses that go beyond “simple” assault and are charged as felonies. The most commonly charged felony A&B offenses are (a) malicious wounding or unlawful wounding and (b) assault and battery on a law enforcement officer. Strangulation is also a separate felony assault crime in Virginia.

Assault & Battery on a Law Enforcement Officer. This offense has the same elements as misdemeanor assault and battery, but the alleged victim is a police officer, sheriff, firefighter, EMS, judge, magistrate, works for a jail or prison, or is an employee of the Department of Behavioral Sciences. If the prosecutor proves that the accused knew or should have known that the victim was someone in one of those capacities, the A&B will become a Class 6 felony, punishable by up to five years in prison (with a mandatory minimum of 6 months in jail).

The most common situation for this offense is when a person is being arrested for something else and refuses to be taken into custody, and in resisting arrest pushes, kicks or otherwise contacts the police officer. A defendant who makes contact with more than one officer can be charged with separate felonies for each officer. Spitting at a police officer can also result in a felony assault charge.

Malicious Wounding and Unlawful Wounding. Malicious wounding goes beyond assault and battery to include a criminal mindset called malice. Generally speaking, you commit an offense with malice when you intentionally commit a crime, and you were not provoked to act in the heat of passion. Assault and battery doesn’t have to result in an injury for there to have been a crime; but malicious wounding requires some kind of injury inflicted with malice. Malicious wounding also requires the intent to injure or kill. The maximum punishment for malicious wounding in Virginia is 5–20 years in prison and a $100,000 fine. For aggravated malicious wounding—where the victim suffers a “permanent and significant physical impairment”—the maximum punishment is 20 years to life in prison and a $100,000 fine.

If the offense occurs without malice—meaning that the injury was inflicted intentionally but in the heat of passion or after being provoked to rage or anger, then the offense is considered “unlawful wounding,” punishable by up to five years in prison.

One important factor to remember about these offenses is that each is considered a lesser included offense of the other. For example, if you are charged initially with aggravated malicious wounding, but the alleged victim has not suffered a permanent injury, you can still be found guilty of malicious wounding. If the facts of the case determine that the offense was committed in the heat of passion and without malice, then you could still be found guilty of unlawful wounding. If it becomes apparent that the offense was committed without an intent to injure or kill, then you could still be found guilty of assault and battery. This becomes very important when your attorney is preparing for a trial and possibly negotiating a resolution of your case with the prosecutor.

What Should You Look For In Hiring An Attorney For Your A&B Case?

Assault and battery and its more serious related offenses are by their very nature violent crimes. This means that prosecutors, victims and their families, judges, and ultimately juries, will tend to react in a more emotional way than they would for an impersonal crime like shoplifting. This could result in severe punishments even for someone who has no prior criminal history. While the cost of an attorney is certainly a factor, there is too much on the line to make cost your number one consideration. Focus instead on the attorney’s experience and familiarity with the local jurisdiction. Does the attorney have a proper understanding of very subjective standards like fear of harm, malice or uncontrolled passion—concepts that could mean the difference between a serious felony conviction and an acquittal?

The defense attorneys at Livesay & Myers generally charge anywhere from $1,500 to $3,000 for legal representation on a misdemeanor assault charge, and from $2,500 and up for representation on a felony charge. Other factors impacting the fee relate to the stage your case is in when you first consult with us: whether you have gone to an attorney advisement, whether your case has already been continued, whether a trial date has been set, whether you are seeking a jury trial, etc. In order to determine a fair and appropriate fee for defending you in your particular case, we offer a free consultation with one of our experienced criminal attorneys. The attorney will talk to you about the details of your case, review court documents such as any arrest warrants or indictments, and then assess a fee that is fairly and appropriately tailored to the circumstances of your case.

Our Defense Attorneys

Livesay & Myers, P.C. has a team of experienced criminal defense attorneys in Northern Virginia. The size and resources of our firm allow us to offer a comprehensive, aggressive defense to each client. Our attorneys are supported by a team of paralegals and law clerks. We also have a network of private investigators and forensic experts at our disposal. Be sure to read our client reviews, then review the profiles of each of our criminal attorneys to find the one who is the best fit for you.

Free Consultation. If you have been charged with assault and battery in Northern Virginia, contact us to schedule a free consultation with one of our experienced defense attorneys today. Each of our offices are open Monday–Friday, 8:30 am–5:30 pm; during off-hours please send us an email and we will get back to you as soon as possible.

Virginia Criminal LawyersMartindale-Hubbell Livesay & Myers

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3975 University Drive #325
Fairfax, VA 22030
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Manassas, VA 20110
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Leesburg, VA 20176
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Fredericksburg, VA 22401