Q: First and Only Incident, no battery involved
no previous convictions are on the spouses record, and the intention of the complainant was to only remove the spouse temporarily not to file charges and no prosecution is desired. The complainant is not at risk and is not fearful of the spouse, he is a full-time provider and parent. Is there a way to have this dismissed? Avoid jail time? Is jail evenly likely considering no record, his position in the household and no previous incidents?
A:
Va. Code § 18.2-57.2 says "Assault and battery against a family or household member; penalty.
A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor."
However, Va. Code § 18.2-57.3 provides "Persons charged with first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge."
"A. When a person is charged with a simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or a violation of § 18.2-57.2, the court may defer the proceedings against such person, without a finding of guilt, and place him on probation under the terms of this section." The statute then continues with the terms of how the deferral works.
So, what usually happens is that the prosecutor will offer a deal that the accused concedes there are facts sufficient to find the accused guilty. But, the agreement is to ask the judge to defer a finding for a period of time.
Provided there are no further offenses, the charge is later dismissed. There are usually some costs and programs required as part of it.
A: If this is a first time in which the police have been involved, your spouse is not likely looking at jail time. However, if he goes through the 1st time offender, he will have a permanent record of being charged with the offense. First time offenders can never expunge this charge under current law .Your spouse can never own a gun, which may impact a future job. Other than via the 1st offender route, it is not likely that the charge will be dismissed, despite you not wanting to proceed. (In these types of situations, as you have described, there are better ways to deal with this than getting the police involved.) Your spouse should hire a local experienced criminal defense attorney right away, to try to get this charge dismissed/nolle prosequi'd or amended to an offense like "no trespass".
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