Recent Posts in assault on a family member Category
| May 09, 2012 |
| Can my charges be expunged? |
| Posted By Shawn Cline |
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Rarely does a day go by where I don't receive a call from someone who is seeking an expungement for a charge on their record. These people are often struggling to find meaningful employment because of a charge somewhere in their past that continues to show up on background checks. Unfortunately, this information is a matter of public record, and employers and schools often use this to (lawfully) discriminate against individuals who would otherwise be qualified for positions.
In a perfect world, I would be able to help anyone who has turned over a new leaf and put their criminal past behind them with securing an expungement. Unfortunately, Virginia only authorizes expungements under very limited circumstances. Virginia Code §19.2-392.2 allows for expungement of charges where the charge is dismissed by the court or where the Commonwealth's Attorney takes a nolle pros action, which basically means that they decline to prosecute the case. The code does not distinguish between felony charges and misdemeanors in terms of eligibility (although it does create a higher burden for granting felony expungements).
What is most glaring in this code section is that it does not allow for expungement of any conviction, however insignificant the charge and however light the punishment. So if you were convicted of drunk in public and fined $25 by the court, that will stay on your record for the rest of your life.
Also of importance is the interplay between "first offender" statutes such as those related to drug possession (§18.2-251) and domestic violence
(§18.2-57.3). A defendant who completes a first offender program is NOT eligible for an expungement of the charge, because to be placed in the first offender program, a defendant must either plead guilty, or stipulate that the evidence would be sufficient for a conviction. Many attorneys rush their clients toward the first offender program as an expedient way to secure a dismissal of a charge. These defendants often find themselves years later explaining to employers why they were charged with domestic violence or possession of drugs. These factors need to be considered prior to accepting the first offender program, not after the fact when it is to late to change the disposition.
The expungement process is quite lengthy. From the date that the petition is filed to the date when the record in Richmond is sealed can take up to six months. Numerous agencies are involved, form the Courts and Commonwealth's Attorney, to the Virginia State Police. It is a bit of bureaucratic nightmare, but the end result in the right case is a citizen who can truly move past a prior criminal charge.
If you are being held back by a criminal charge as you try to move on with your life,
call us right away. We will be able to tell you if you qualify, and can file a petition on your behalf and make the associated court appearances. The process is quite technical and sometimes requires the presentation of witnesses and evidence, but in the end it is always worth the effort. There is no substitute for a clean record, particularly in times like these where employers are looking at multiple applicants for every job available. Don't let your record hold you back!
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| April 03, 2012 |
| Is it legal to spank a child in Virginia? |
| Posted By Shawn Cline |
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I often meet with well meaning parents who have been accused of assault on a family member in violation of Virginia Code §18.2-57.2 who are in fact guilty of nothing more than spanking an unruly child. These concerned parents want to know whether spanking is a crime in Virginia. The answer is more complicated than one might suspect. First and foremost, spanking a child is not prohibited in Virginia, and there is no Virginia Code section directly on point in this regard. However, the Virginia Supreme Court has provided some guidance on the matter in stating that "a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child; but if he exceeds due moderation, he becomes criminally liable."
Carpenter v. Commonwealth, 186 Va. 851 (1947). The problem with this rule is that "moderation and reason" lack any specific definition. Is it acceptable to spank a child twice? How about ten times? What if I use a belt? Or a switch? None of these questions are answered directly. However, the Court provides some guidance in that the legality of a particular manner and degree of corporal punishment shall be determined by taking into consideration the "age, size and conduct of the child, the nature of his misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child".
The bottom line is that in Virginia, parents (and those acting in parental roles) may spank or otherwise corporally discipline a child as long as they do so within the bounds of "moderation and reason". Unfortunately, parents using this method of behavior modification do so at their own risk. Our society is increasingly intolerant of discipline in any form and increasingly tolerant of bad behavior in children. What you may view as punishment of a child within the bounds of moderation and reason may be viewed by a judge or jury as a criminal assault. If you or someone you love are facing a charge related to spanking or disciplining a child, contact us right away. We understand this complex area of law and are ready to fight for you!
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| August 22, 2011 |
| Assault on a family member in Virginia |
| Posted By Shawn Cline |
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| Assault and battery on a family member in violation of Virginia Code §18.2-57.2 is one of the most common offenses that I see in my office. Very often, the parties have resolved their differences, and neither wants to go forward on the matter. The problem is that almost every local jurisdiction has a "no drop" policy for assault on a family member. What this means is that regardless of the parties' wishes, the case is going forward, and one side will be testifying against the other. For this reason, it is wise to hire an experienced criminal defense attorney if you or someone you love has been charged with assault on a family member. The repercussions of a conviction for this offense are drastic and far reaching. For one thing, the charge is a class 1 misdemeanor, carrying with it the possibility of up to one year in jail, along with a $2,500 fine. Unlike many other class 1 misdemeanors which rarely result in jail time, judges routinely lock defendants up for assault on a family member. In addition, by virtue of a federal law known as the Lautenberg Amendment, anyone convicted of a crime of domestic violence is forever prohibited from carrying a firearm. Obviously this affects sportsmen and gun enthusiasts, but more importantly in the Hampton Roads area, it has a terrible impact upon military members. As a former member of the military, I remember qualifying annually (and even making expert once!) on an M-9. Almost every servicemember, regardless of rate or MOS, has a similar requirement. If you are convicted of assault on a family member, it is a federal offense to handle that weapon, even though qualifying on the weapon is a requirement of your military duties. Worse yet, there is no military exception to this law! The bottom line is that if you are convicted of assault on a military member, and you are on active duty or in the reserves, you will more than likely be discharged. The takeaway from all of this is that these charges must be fought, regardless of whether you have worked out your issues with your spouse or significant other. And to do so, you need to hire an aggressive and experienced attorney.
Call us today, we are ready to fight for you! |
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| June 15, 2011 |
| What is the difference between malicious wounding and assault? |
| Posted By Shawn Cline |
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I frequently meet with clients who are facing charges of malicious wounding, which is a Class 3 felony, who are wondering why they were not charged with simple assault, which is a Class 1 misdemeanor. Obviously, the difference in potential punishments is huge (20 years in state prison for malicious wounding versus 12 months in jail for assault), but what they want to know is how the offenses themselves are different.
Let's start at the lowest level, with simple assault under 18.2-57. If you read the code, you will notice that it doesn't really define the terms "assault" or "battery". That is because these are what are known as "common law" offenses, in other words, offenses dating back to our legal system's English roots. An assault is basically an offer to do violence to another, coupled with the means by which to do so. A battery is any unwanted touching of another. So an assault does not require physical contact at all, simply an expressed offer to engage in unwanted physical contact. Battery, however, does require unwanted physical contact.
Assault in Virginia can be a felony in certain circumstances, for example a third offense assault against a family member (see 18.2-57.2) or assault on a law enforcement officer. That being said, assault is usually a Class 1 misdemeanor punishable by up to 12 months in jail.
Things get far more serious when the Commonwealth's Attorney decides that the facts of a physical altercation rise above a simple assault and battery, and they elect to charge an individual with malicious wounding under 18.2-51. Malicious wounding is different from assault in several ways (beyond the staggering difference in potential punishments). Malicious wounding is not a common law offense, so its elements are described in the statue itself. The code requires that a defendant "shoot, stab, cut, or wound" or by any means cause "bodily injury" to another person "maliciously" and "with the intent to maim, disfigure, disable, or kill" to be convicted of this offense. For purposes of this statute, bodily injury can be inflicted simply by striking with fists or other body parts, in other words, a weapon need not be used. If the defendant engages in this conduct but without "malice", then he is guilty of unlawful wounding (a Class 6 felony), instead of malicious wounding. Malice is a complicated concept, but it is largely centered around that conduct which is calculated and deliberate, with minimal provocation.
There is an even more serious version of malicious wounding, referred to as aggravated malicious wounding under 18.2-51.2. This offense is a Class 2 felony, punishable by 20 years to life in prison. Aggravated malicious wounding is the same as malicious wounding, with the additional element that the victim must be "severely injured and is caused to suffer permanent and significant physical impairment."
Returning to the initial question (and the one that comes up most often) the difference between simple assault and malicious wounding really lies in the state of mind of the defendant. The question for the jury is whether the individual acted with the intent to cause bodily injury, and whether the individual acted with malice. If the person acted with intent to cause bodily injury, and did so with malice, then he is guilty of malicious wounding. If the person acted without malice, then he is guilty of unlawful wounding. Finally, if the person acted without the intent to cause injury at all, he would be guilty only of assault and battery.
As you can see, there are a myriad of issues involved with these kinds of cases, far more than I can discuss here. If you have been charged with a assault or with malicious wounding, contact us right away. The stakes are high, and time is of the essence in building your defense! |
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| May 27, 2011 |
| Assault on a family member? Can't we just work this out? |
| Posted By Shawn Cline |
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One of the most common offenses I see is assault on a family member in violation of Virginia Code Section 18.2-57.2. This is a Class 1 misdemeanor punishable by up to 12 months in jail an d a fine of $2,500, so it is a very serious offense. A third offense is a Class 6 felony, punishable by up to 5 years in the penitentiary.
The reality is that in 90% of the cases I see, the parties have long since made up and are back together by the time the case goes to trial. Often times, the "victim" in the case wants nothing to do with it and simply wants the matter to be dropped. Unfortunately, the charges are not taken out by the victim, but rather by the Commonwealth, and so the victim has very little say about what happens with the case. This is a ridiculous condition, but it is a consistent reality in this field of criminal law.
That being said, there are a few good reasons that Commonwealth's Attorneys do not drop these kinds of charges at the victims request. Most obviously, they are concerned that the victim is requesting that the case be dropped because they are intimidated by the defendant. This sounds good in theory, but in my experience this is almost never the case. Far more common is the scenario where a couple argued and tempers escalated, one thing lead to another and one party (usually the female) called the police hoping that they would mediate the argument and then go about their business.
This is fine in theory, but in practice the officers have very little discretion when responding to a domestic call. With exceedingly rare exceptions (usually involving a senior police officer), when officers respond to a domestic call, someone is leaving in handcuffs. The idea is that the matter will be sorted out in court.
That is where an aggressive criminal lawyer comes in. Don't assume that because you are charged you need to take some kind of plea agreement. These cases can be fought, and can be won! You need an attorney who regularly practices in this unique field of law and knows what it takes to effectively attack the Commonwealth's case. A good lawyer will use the Commonwealth's own witnesses against them in a way that often means that the defendant never has to present a case at all, because the judge will throw out the charges after hearing the Commonwealth's case.
Give us a call if you are facing a charge of assault on a family member. We will sit down with you, and the family member at issue (if they are willing), to develop an effective strategy for beating your charge! |
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