domestic abuse

Virginia Criminal Defense Attorney James E. Short Responds to Questions About Domestic Assault Arrests

Couples and families in possible domestic violence situations often have questions about legal boundaries and police authority. Law enforcement officers often arrive at domestic disturbance calls without witnessing the incident firsthand. People may then wonder if police can arrest them based only on accusations from alleged victims. The keen insight of a Chesapeake criminal defense attorney like James E. Short is vital in clarifying uncertainty around these complex matters.

Discretionary Power to Arrest the Primary Physical Aggressor

Virginia police officers have the power to exercise discretion in arresting someone for domestic assault. Code of Virginia § 19.2-81.3 states that an arrest without a warrant is “authorized in cases of assault and battery against a family or household member.” This includes when they do not witness the actual assault itself. The arrest can be based on probable cause, personal observations, or “the reasonable complaint of a person who observed the alleged offense.”

Under the law, a family or household member includes not only a person’s spouse but also any parents, siblings, children, grandparents, and grandchildren. It also includes in-laws who live in the same home and anyone with whom the spouses have a child in common. The term “family or household” member is quite extensive and applies to a broad range of individuals. 

A crucial element of this Virginia law is that officers have the discretionary power to arrest the person they believe is the “primary physical aggressor.” 

Standards for Identifying the Predominant Physical Aggressor

The predominant physical aggressor may be the person who started the fight, but this is only one of the seven standards outlined by Virginia laws on domestic assault. In cases of marital rape, identifying the person who was the first aggressor may seem more obvious than in other situations. 

Other standards for determining the predominant physical aggressor include:

  • The protection of the health and safety of family and household members
  • Prior complaints of family abuse by the alleged abuser 
  • The relative severity of injuries observed in each person
  • If the apparent injuries were inflicted in self-defense 

Law enforcement officers reporting to the scene may also rely on witness statements and other observations to decide who is the predominant physical aggressor. 

Police Officers Can Issue Emergency Protective Orders

Along with arresting the person accused of assault and battery, police officers also have the power to issue an emergency protective order. Code of Virginia § 16.1-253.4 states that emergency protective orders may be authorized if there is “probable danger of further acts of family abuse against a family or household member.” Officers must believe there is a reasonable fear of serious imminent injury.

Emergency protective orders expire at 11:59 p.m. on the third day after they are issued. The courts may subsequently approve preliminary or final protective orders. These effectively function as no contact orders that may be in effect for up to two years. Violating a protective order is a Class 1 misdemeanor punishable by up to 12 months in jail and a fine of up to $2,500. 

Domestic Violence Charges Are Not Guaranteed Convictions

In the interest of the safety of the alleged victim, police officers in Virginia can arrest someone for domestic assault and battery even if the officers do not witness the act. However, someone who is arrested and charged with domestic violence is not automatically convicted of the crime. They are still owed due process and are innocent until proven guilty. 

Even if the supposed victim wishes to withdraw their allegations of domestic assault, the criminal case may still proceed. Once the police have been called to the scene and they have arrested the person they believe is the primary physical aggressor, only prosecutors can choose to drop the charge. 

Protect Your Rights With a Domestic Assault Lawyer

It is vital to take domestic violence charges seriously. A criminal conviction is typically a Class 1 misdemeanor with up to 12 months in jail and up to a $2,500 fine. Any subsequent offense within 20 years is a Class 6 felony, punishable by up to five years in prison. Convictions may carry other penalties and consequences too. 

Time is of the essence. The sooner you get in contact with a skilled attorney, the sooner they can start to formulate strong criminal defenses for your domestic assault charges. They can help safeguard your legal rights and fight for the best possible outcome.