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by Joseph Brown

Assault and Battery in Virginia

 

Assault and Battery is one of several violent crimes against the person in Virginia criminal law. These offenses include a range of offenses depending on the severity of the incident, the degree of injury inflicted, and the intent of the person committing the offense.  At common law (the old laws of England that we inherited in Virginia) a battery is the actual touching or striking someone, and an assault was the action of making someone believe they were about to be battered.  Today in Virginia the Code uses the common law definitions of assault and battery, but in practice only battery is usually charged.  At the other end of the spectrum is aggravated malicious wounding, which requires actual injury done with malice and intent to maim or kill.  Information about many of the different types of assault charges are included here:

  • Assault and Battery – Va. Code 18.2-57 – is a class 1 misdemeanor, up to 12 months in jail and up to $2,500 fine;
    • Includes any touching, even slight touching, that is done in an angry, insolent or rude manner;
  • Domestic Assault and Battery – Virginia Code 18.2-57.2 – is a class 1 misdemeanor (up to 12 months in jail and up to $2,500 fine) and a third offense within 20 years is a class 6 felony (1 day to 5 years in prison, fine up to $2,500);
    • Includes any touching done in an angry, insolent or rude manner;
    • Requires that the accused and victim are family or household members;
    • First Offender Provision – Va. Code 18.2-57.3 – allows for dismissal for a first offense if the defendant completes a time period of good behavior monitored by probation and completes counseling;
  • Assault by Mob There are three different versions of this offense
    • Assault and Battery by Mob – Va. Code 18.2-42 – Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
      • Provides that every person who is part of a mob, where that mob commits assault or battery, is guilty of a class 1 misdemeanor;
    • Acts of Violence by Mob – Va. Code 18.2-42.1 – Provides that every person who is a member of a mob is guilty of any violent offenses committed by the mob and punished as if they have committed the offense themselves;
    • Shooting, Stabbing, etc., with intent to maim, kill, etc., by mob  – Va. Code 18.2-41;
      • Provides that any person who is part of a mob where the mob maliciously shoots, stabs, cuts or wounds a person, or causes bodily injury with intent to maim, disable, disfigure or kill, is guilty of aClass 3 Felony (5 years to 20 years, up $100,000 fine);
  • Assault on Law Enforcement – Va. Code 18.2-57(C) – If any person commits an assault and battery against a law enforcement officer;
    • Class 6 Felony (1 day to 5 years in prison, up to $2,500 fine);
    • Mandatory minimum sentence of 6 months in jail;
  • Unlawful Wounding– Va. Code 18.2-51 – If any person unlawfully shoot, stab, cut, wound or cause bodily injury, with the intent to maim, disfigure, disable or kill, it is a Class 6 Felony (1 day to 5 years, up to $2,500 fine);
  • Malicious Wounding – Va. Code 18.2-51 – Provides that any malicious shooting, stabbing, cutting, wounding or causing bodily injury, with the intent to maim, disfigure, or kill, is a Class 3 Felony (5 years to 20 years, up to $2,500 fine);
  • Aggravated Malicious Wounding – Va. Code 18.2-51.2 – Class 2 Felony (20 years to Life and fine up to $100,000);
    • For any malicious wounding  where the victim is severely injured and suffers permanent and significant physical impairment;
  • Malicious Wounding of Law Enforcement – Va. Code 18.2-51.1 – Provides that any person who commits a malicious wounding against a law enforcement officer, is guilty of an unclassified Felony which carries a range of punishment of 5 years to 30 years, and up to $100,000 fine;
    • Also includes 2 years mandatory minimum sentence.

Filed Under: Criminal Tagged With: assault, battery, court, criminal law, jail, malicious wounding, Unlawful Wounding, virginia, wounding

by Joseph Brown

Punishment for Felonies and Misdemeanors in Virginia

 

If you are charged with a criminal offense in the Fredericksburg, Va. Area including the counties of Stafford, Spotsylvania, King George or Caroline, call the Law Offices of Joseph T. Brown PLC for a free, confidential consultation with a Virginia Criminal Defense Attorney.

Criminal charges and convictions can have serious, long term consequences such as fines, loss of license, or imprisonment for months or years. Anyone who is charged with a Criminal Offense in Virginia should have an attorney to represent them.

Criminal Offenses in Virginia are divided into two categories and numbered according to severity of the offense, with one being the highest punishment and worst crime.

  • Misdemeanor in Virginia – Classification and Maximum Punishment
    • Class 3 and 4 – Fine Only ($500 and $250)
    • Class 2 Misdemeanor – up to six months in jail and up to $1,000.00 fine
    • Class 1 Misdemeanor – up to twelve months in jail and up to $2,500.00 fine
  • Felony in Virginia – Classification and Maximum Punishment
    • Class 6 Felony – 1 day to 5 years, $2,500 fine
    • Class 5 Felony – 1 day to 10 years, $2,500 fine
    • Class 4 Felony – 2 years to 10 years, $100,000 fine
    • Class 3 Felony – 5 years to 20 years, $100,000 fine
    • Class 2 Felony – 20 years to Life Sentence, $100,000 fine
    • Class 1 Felony – Life Sentence, Death Penalty, $100,000 fine
  • Title 18.2 of the Virginia Code – Crimes and Offenses
  • Title 19.2 of the Virginia Code – Criminal Procedure
  • Virginia Sentencing Guidelines
  • Courts Website

Filed Under: Criminal Tagged With: court, criminal defense, criminal law, felony, judge, misdemeanor, sentencing, virginia

by Joseph Brown

Refusal in Virginia

 

If a person is arrested for DUI in VIrginia then the law compels that person to provide a breath sample to determine their Blood Alcohol level.  This requirement is known as the Implied Consent Statute, or section 18.2-268.2 of the Code of Virginia (Implied Consent to post arrest testing to determine drug or alcohol content of blood).

If a person unreasonably refuses to provide a breath sample after being arrested for a DUI then they can be found to be in violation of section 18.2-268.3 of the Code of Virginia, also known as theRefusal Statute.

The procedure in the code for the Refusal statute requires the person to be informed of the Implied Consent Statute after they have refused.  If they still refuse after receiving the information about the Implied Consent Statute then that person can be charged with Refusal.  The information that must be given is as follows:

“(i) a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) the criminal penalty for unreasonable refusal within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal is aClass 2 misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor.”

Defenses of of an alleged violation of this statute usually center on whether the refusal was reasonable or not.  Many of the past cases have focused on whether the refusal was due to a physical limitation or inability to provide a sample.

The consequence for conviction of violation of this statute is that the person’s driver license is suspended for one year, with NO restricted license available during the suspension.  This suspension is in addition to any suspension imposed because of conviction for DUI.  The result is that if a person refuses to give a breath sample when arrested for DUI may be found guilty of refusal and lose their license for one year with no restricted license available to them.  Otherwise the consequences are a civil violation (not criminal) for a first conviction, and a second or first class misdemeanor for subsequent convictions.

Filed Under: DUI Tagged With: blood alcohol level, dui, refusal, traffic law, traffic violations, virginia

by Joseph Brown

Restricted License in Virginia

 

Anyone who has their license suspended by the Court or by DMV may be interested in obtaining a restricted license if they qualify. The Judge may allow the restricted license but in some cases, such as convictions for Refusal and the first year of a three year suspension for a second DUI, the code may not allow a restricted license at all. In the case of a DUI conviction the restricted license can only be obtained after enrollment in the ASAP program.

A restricted license can be obtained to allow a person to drive for the following reasons:

To travel to and from a place of employment;
To attend ASAP or alcohol rehabilitation program;
To travel during employment hours if operation of a motor vehicle is part of the employment;
To travel to and from school if the person is a student;
To travel for health care services, including for services for an elderly parent or other person in the household;
To transport a minor child under their care for school, day care and medical purposes;
To travel to court and to probation;
To travel for religious worship;
To travel for case monitoring for DCSE (Child Support Enforcement).
If a restricted license was not obtained at the time the license was taken by the Court, then that same Court can be petitioned to grant a restricted license.

Ignition Interlock
Another aspect of a restricted license is the ignition interlock system. Ignition interlock can be ordered by the Court as condition of a restricted license, and ignition interlock is required for anyone driving on a restricted license if they have multiple convictions for DUI or were arrested with a high blood alcohol level. There is a monthly fee to have the ignition interlock installed in a vehicle, and it requires a breath sample before it will allow the vehicle to be started. The ignition interlock devices also keep records of every attempt to start the vehicle and the records these devices produce have been used as evidence that the driver tried to start the vehicle after consuming alcohol.

Filed Under: DUI Tagged With: dui, dwi, restricted license, traffic law, traffic violations, virginia

by Joseph Brown

DUI Legal Defense in Virginia

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Defenses to DUI (DWI, Driving While Intoxicated, Driving Under the Influence, Drunk Driving) at trial typically challenge the reason for the traffic stop in the first place, whether the arresting officer had sufficient evidence to arrest the person and whether the evidence presented at trial establishes proof beyond a reasonable doubt that the person is guilty. The first defense to DUI is usually whether or not the police had authority to pull the car over. Police may stop a vehicle any time they see a law being broken in front of them, or if they have a reasonable suspicion that the driver or an occupant of the car is breaking the law or has recently broken the law. This means that the police can pull a person over and investigate a person whose car has a burned out tail light or would otherwise not pass inspection. Another example is where police pull over someone and detain them briefly in order to determine if they are a person of interest in a crime. With everyone having a cell phone, many DUI arrests are made after someone calls to inform police of a drunk driver. In most cases the arresting officer has seen the person’s driving behavior himself and that is the basis for the stop. The reason for pulling a person over does not need to have anything to do with the offense of DUI, and doesn’t even have to be charged as a separate offense or proven beyond a reasonable doubt at trial. The police officer just has to be able to articulate a reasonable suspicion that some law was being broken.

The second defense to DUI is whether the police had authority to arrest the person for drunk driving. This is important because once a person is arrested for DUI they are required to give a sample of breath or blood to determine their blood alcohol level under section 18.2-268.2 of the Code of Virginia (Implied Consent to post-arrest testing to determine drug or alcohol content of blood).
Police usually establish probable cause for arrest for DUI by the following:
Observations of the officer – smell of alcoholic beverage, red eyes, slurred speech, stumbling, confusion, driving behavior, etc.;
Performance of the Field Sobriety Tests (FST) – These road side tests can include reciting the ABC’s, nine step walk and turn, touching the nose, finger dexterity test, etc. You do not have to take these tests;
Preliminary Breath Test – This is the hand held breath tester that most Police carry on the road. It is about the size of a deck of playing cards and has a short straw to blow into. Unlike the Breathalyzer under the implied consent law, you do not have to take this breath test and your refusal to take the test can not be held against you. If you do take this test, the fact that it showed some alcohol present in the breath test can be used by the Commonwealth to prove justification for the stop, but the exact results are not admissible;
Statements of the Defendant – In many cases the person who is pulled over will make statements that they are drunk or that they were drinking. You do not have to make any statements about whether you were drinking or are intoxicated. Your refusal to answer those questions can not be used against you.

The second defense to DUI attacks the sufficiency of the evidence that the Police have collected in order to justify an arrest (and Breathalyzer blood alcohol analysis). The less information the Police have to justify the arrest the greater your chance of successfully defending a charge of drunk driving. For example if a person doesn’t make any statements to the officer, and refuses to do the preliminary breath test and the field sobriety tests, then the Commonwealth has to prove by only the observations of the officer that there was probable cause for the arrest. In some cases this is enough, but if the officer does not establish probable cause by his testimony, your case could be dismissed.

The third defense to DUI challenges that the evidence taken as a whole, does not establish guilt beyond a reasonable doubt. This defense is made less important than the others, especially the second defense, because of the presumption statute, also known as section 18.2-269 of the Code of Virginia.

(Presumptions from alcohol or drug content of blood). This statute says that a person whose Blood Alcohol was above 0.08 is presumed to be under the influence. Assuming the Blood Alcohol was actually above 0.08, exclusion of the Blood Alcohol evidence (the goal of the second defense to DUI) is preferable to attempting to overcome the presumption that the state creates. That statute, along with the Implied Consent Statute 18.2-268.2 provides that if the Government can prove that there was probable cause to arrest a person for drunk driving, then that person is compelled to give a breath test for analysis and if the results show the Blood Alcohol to be 0.08 or above, that person is presumed to be guilty of DUI.

Anyone can see that the laws are designed to give every advantage to the Commonwealth and given the harsh penalties for DUI, anyone charged with DUI or DWI in Virginia should obtain the services of an attorney. At the Law Offices of Joseph T. Brown PLC we will analyze your case for all possible defenses and fight for you in the courtroom. If you are charged with DUI in a Fredericksburg, VA area court such as the courts of Stafford, Spotsylvania, King George, Fredericksburg or Caroline, call the Law Offices of Joseph T. Brown PLC at 540-786-7700 for a free consultation to discuss your case.

Filed Under: DUI, Slider Tagged With: drunk driving, dui, dui legal defense, dwi, traffic law, traffic violations, virginia

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There are many pages in this website that are devoted to giving information about various topics in the law. This information is not meant to constitute legal advice and should not be considered legal advice for any reason. Anyone faced with a legal problem addressed in the pages of this site should contact the Law Offices of Joseph T. Brown PLC for a consultation.

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