Should my daughter hire a criminal lawyer and use him for the A&B charge?
Full Question:
Answer:
It is recommended to follow your lawyer's advice on submitting a plea to a criminal charge. It may be possible to consult with a criminal attorney without charge before deciding whether it is worthwhile to hire the attorney for the case. If she was charged with assaulting a family member and it is a first offense, it is possible for the court to sentence her to probation and to dismiss the charges on successful completion of probation. Otherwise, she may be convicted odf a class 1 misdemeanor and sentenced by a jury or judge for a period of time decided according to the facts and circumstances involved.
The following are VA statutes:
§ 18.2-57. Assault and battery.
A. Any person who commits a simple assault or assault and
battery shall be guilty of a Class 1 misdemeanor, and if the
person intentionally selects the person against whom a
simple assault is committed because of his race, religious
conviction, color or national origin, the penalty upon
conviction shall include a term of confinement of at least
six months, 30 days of which shall be a mandatory minimum
term of confinement.
B. However, if a person intentionally selects the person
against whom an assault and battery resulting in bodily
injury is committed because of his race, religious conviction,
color or national origin, the person shall be guilty of a
Class 6 felony, and the penalty upon conviction shall include
a term of confinement of at least six months, 30 days of
which shall be a mandatory minimum term of confinement.
C. In addition, if any person commits an assault or an
assault and battery against another knowing or having reason
to know that such other person is a judge, a law-enforcement
officer as defined hereinafter, a correctional officer as
defined in § 53.1-1, a person employed by the Department of
Corrections directly involved in the care, treatment or
supervision of inmates in the custody of the Department, a
firefighter as defined in § 65.2-102, or a volunteer
firefighter or lifesaving or rescue squad member who is a
member of a bona fide volunteer fire department or volunteer
rescue or emergency medical squad regardless of whether a
resolution has been adopted by the governing body of a
political subdivision recognizing such firefighters or
members as employees, engaged in the performance of his
public duties, such person is guilty of a Class 6 felony,
and, upon conviction, the sentence of such person shall
include a mandatory minimum term of confinement of six
months.
Nothing in this subsection shall be construed to affect the
right of any person charged with a violation of this
section from asserting and presenting evidence in support of any
defenses to the charge that may be available under common
law.
D. In addition, if any person commits a battery against
another knowing or having reason to know that such other
person is a full-time or part-time teacher, principal,
assistant principal, or guidance counselor of any public or
private elementary or secondary school and is engaged in the
performance of his duties as such, he shall be guilty of a
Class 1 misdemeanor and the sentence of such person upon
conviction shall include a sentence of 15 days in jail, two
days of which shall be a mandatory minimum term of
confinement. However, if the offense is committed by use of
a firearm or other weapon prohibited on school property
pursuant to § 18.2-308.1, the person shall serve a mandatory
minimum sentence of confinement of six months.
E. As used in this section:
"Judge" means any justice or judge of a court of
record of the Commonwealth including a judge designated
under § 17.1-105, a judge under temporary recall under
§ 17.1-106, or a judge pro tempore under § 17.1-109, any
member of the State Corporation Commission, or of the
Virginia Workers' Compensation Commission, and any judge of
a district court of the Commonwealth or any substitute judge
of such district court.
"Law-enforcement officer" means any full-time or
part-time employee of a police department or sheriff's
office which is part of or administered by the Commonwealth
or any political subdivision thereof, who is responsible for
the prevention or detection of crime and the enforcement of
the penal, traffic or highway laws of this Commonwealth, any
conservation officer of the Department of Conservation and
Recreation commissioned pursuant to § 10.1-115, conservation
police officers appointed pursuant to § 29.1-200, and
full-time sworn members of the enforcement division of the
Department of Motor Vehicles appointed pursuant to
§ 46.2-217, and such officer also includes jail officers in
local and regional correctional facilities, all deputy
sheriffs, whether assigned to law-enforcement duties, court
services or local jail responsibilities, auxiliary police
officers appointed or provided for pursuant to §§ 15.2-1731
and 15.2-1733 and auxiliary deputy sheriffs appointed
pursuant to § 15.2-1603.
"School security officer" means an individual who is
employed by the local school board for the purpose of
maintaining order and discipline, preventing crime,
investigating violations of school board policies and
detaining persons violating the law or school board policies
on school property, a school bus or at a school-sponsored
activity and who is responsible solely for ensuring the
safety, security and welfare of all students, faculty and
staff in the assigned school.
F. "Simple assault" or "assault and battery" shall not
be construed to include the use of, by any teacher, teacher
aide, principal, assistant principal, guidance counselor,
school security officer, school bus driver or school bus
aide, while acting in the course and scope of his official
capacity, any of the following: (i) incidental, minor or
reasonable physical contact or other actions designed to
maintain order and control; (ii) reasonable and necessary
force to quell a disturbance or remove a student from the
scene of a disturbance that threatens physical injury to
persons or damage to property; (iii) reasonable and necessary
force to prevent a student from inflicting physical harm on
himself; (iv) reasonable and necessary force for self-defense
or the defense of others; or (v) reasonable and necessary
force to obtain possession of weapons or other dangerous
objects or controlled substances or associated paraphernalia
that are upon the person of the student or within his
control.
In determining whether a person was acting within the
exceptions provided in this subsection, due deference shall
be given to reasonable judgments that were made by a teacher,
teacher aide, principal, assistant principal, guidance
counselor, school security officer, school bus driver, or
school bus aide at the time of the event.
§ 18.2-57.2. 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.
B. Upon a conviction for assault and battery against a family or
household member, where it is alleged in the warrant, information, or
indictment on which a person is convicted, that such person has been
previously convicted of two offenses against a family or household member
of (i) assault and battery against a family or household member in
violation of this section, (ii) malicious wounding in violation of
§ 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2,
(iv) malicious bodily injury by means of a substance in violation of
§ 18.2-52, or (v) an offense under the law of any other jurisdiction which
has the same elements of any of the above offenses, in any combination,
all of which occurred within a period of 20 years, and each of which
occurred on a different date, such person is guilty of a Class 6 felony.
C. Whenever a warrant for a violation of this section is issued, the
magistrate shall issue an emergency protective order as authorized by
§ 16.1-253.4, except if the defendant is a minor, an emergency protective
order shall not be required.
D. The definition of "family or household member" in § 16.1-228 applies
to this section.
§ 16.1-228. Definitions.
... "Family or household member" means (i) the person's
spouse, whether or not he or she resides in the same home
with the person, (ii) the person's former spouse, whether or
not he or she resides in the same home with the person,
(iii) the person's parents, stepparents, children,
stepchildren, brothers, sisters, half-brothers, half-sisters,
grandparents and grandchildren, regardless of whether such
persons reside in the same home with the person, (iv) the
person's mother-in-law, father-in-law, sons-in-law,
daughters-in-law, brothers-in-law and sisters-in-law who
reside in the same home with the person, (v) any individual
who has a child in common with the person, whether or not the
person and that individual have been married or have resided
together at any time, or (vi) any individual who cohabits or
who, within the previous 12 months, cohabited with the
person, and any children of either of them then residing in
the same home with the person....
§ 18.2-57.3. 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.
When a person who is no younger than 18 years of age or who
is considered an adult at the time of the proceeding and who
has not previously been convicted of any offense under this
article or under any statute of the United States or of any
state or any ordinance of any local government relating to
assault and battery against a family or household member or
has not previously had a proceeding against him for
violation of such an offense dismissed as provided in this
section, pleads guilty to or enters a plea of not guilty to
a violation of § 18.2-57.2, the court, upon such plea if the
facts found by the court would justify a finding of guilt,
without entering a judgment of guilt and with the consent of
the accused, may defer further proceedings and place him on
local community-based probation upon terms and conditions.
As a term or condition, the court may, where assessment or
evaluation services are available, require the accused to be
assessed or evaluated and, based on the results of the
assessment or evaluation, require the accused to enter an
education or treatment program or services indicated by the
assessment or evaluation, if available. The court, when
assessment or evaluation services are not available, may
require education or treatment services such as, in the
opinion of the court, may be best suited to the needs of the
accused.
The court shall require the person entering such education
or treatment program or services under the provisions of
this section to pay all or part of the costs of the program
or services, including the costs of any assessment,
evaluation, testing, education and treatment, based upon the
accused's ability to pay unless the person is determined by
the court to be indigent.
Following the finding of facts that would justify a finding
of guilt, the court may order the defendant be placed with a
local community-based probation services agency established
pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of
Title 9.1, if such a services agency is available. As a
condition of local community-based probation, if available,
the court shall require the accused to successfully complete
all treatment and/or education programs or services required
by the assessment or evaluation and to be of good behavior
during the period of supervised probation and for a period
of not less than two years following the completion of
probation. The court shall order the defendant to be of good
behavior for a period of not less than two years following
the finding of facts that would justify a finding of guilt
when no supervised probation is ordered.
The court shall, unless done at arrest, order the accused to
report to the original arresting law-enforcement agency to
submit to fingerprinting.
Upon violation of a term or condition of supervised
probation or of the period of good behavior, the court may
enter an adjudication of guilt and proceed as otherwise
provided. Upon fulfillment of the terms and conditions, the
court shall discharge the person and dismiss the proceedings
against him. Discharge and dismissal under this
section shall be without adjudication of guilt and is a conviction
only for the purposes of applying this section in subsequent
proceedings. As such, no charges dismissed pursuant to this
section shall be eligible for expungement under
§ 19.2-392.2.
Notwithstanding any other provision of this section,
whenever a court places an individual on probation upon
terms and conditions pursuant to this section, such action
shall be treated as a conviction for purposes of § 18.2-308.
