Help needed at VA Attorney would be great but any legal advice from experts will help.

  • SwimmingDoc

    Posts: 115

    Apr 11, 2011 5:26 AM GMT
    So I will start off by saying I know this is a gay community and it's intentions are for workout advice but I am sure plenty of RJ members are Attorney and hopefully one is in VA who can assist me.

    My story -

    Last night my boyfriend of 5 months and I went out to a club; he is a very jealous type and last night that got the best of him. On the way home he was really upset and we got in he went to room and started packing saying it was over so I grabbed him (non violently) and set him on the bed and was talking to him to cool him down as he calmed I said something that upset him and he broke free from my loose hold around him accidently hitting me in the eye with his elbow which was leaving a nice juicy black eye. I got him cooled down and took him outside to catch some fresh air so his intoxicated self would relax but it didn't happen to plan he insisted on ME calling the police so they could come get his ID from he so he could go home - giving into his request I called because I wanted them to show up to make him calm down and either send him back inside because he would of relaxed if they showed up or to take him back to dorm. As I called it was a call "Domestic Dispute" not Violence and I had not known at that time that I had a black eye - I went inside to get his phone and seen in the mirror that I had started to developed a black eye - at this point it was too late. I went outside sat by him and was talking to him and told him that during the altercation he had hit me because esentaially he did but it was accidental and he didn’t know. I am not pressing charges but the police still arrested him and he told the magistrate that he had him me so I hope that doesn't effect him because he didn't know what was going on, hell he didn’t even know why he was mad he was that drunk.


    Before people start saying he gets what he gets let me start off by saying he is 18 stands 5'8 and is soaking wet 125lbs I am 25 6'0-6'1 195lbs and have prior military training so if he physically went to hit me the tables would of turned.


    I just don't want to see this boy get into trouble and ruin his life for an accident.
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    Apr 11, 2011 5:33 AM GMT

    So you seek an audience with the magistrate and tell him that while you were helping an intoxicated man his elbow whacked your eye, and that's all that happened. I can only take you at your word, and the same with the magistrate. You're the key witness.


    -Doug

    Nope, I'm not a lawyer, sorry. icon_wink.gif


  • SwimmingDoc

    Posts: 115

    Apr 11, 2011 5:40 AM GMT
    -Thanks Doug I already did that though they said that since we cohabited togeather and I have physical marks it's out of my hands and goes to the state for prosecution. I told police and magistrate that I did not want to press any charges.
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    Apr 11, 2011 8:26 AM GMT
    Swimmerboy said-Thanks Doug I already did that though they said that since we cohabited togeather and I have physical marks it's out of my hands and goes to the state for prosecution. I told police and magistrate that I did not want to press any charges.


    I am not an attorney, nor do I play one on TV. I also don't know the laws in your state, but I didhave a very similar experience in Florida. Since the state was adamant about pursuing the charges we ended up going to trial. (I was the defendant; my sister in law was the "victim"). My attorney ended up getting the judge to dismiss the case based on the following Florida statute:

    784.03 Battery; felony battery.—
    (1)(a) The offense of battery occurs when a person:
    1. Actually and intentionally touches or strikes another person against the will of the other; or
    2. Intentionally causes bodily harm to another person.

    When my sister in law was on the stand and stated (in response to questioning by my attorney) That any contact between me and her was NOT against her will, the judge seemed rather perturbed that the state even took the case to trial. Especially since their "witness" was testifying for the defendant.

    If you research the VA statutes perhaps you can find something similar that will help.
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    Apr 11, 2011 1:17 PM GMT
    In my experience you should never have to call the cops on your boyfriend. It's pretty clear that it's not gonna work out, and he more than likely will not get any trouble for this. Minor consumption?
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    Apr 11, 2011 4:27 PM GMT
    Va is a fucked up state with greedy & power hungry district attorneys. Once you called the police & the state becomes involved in a case like this they will push it to the limits no matter what you say.

    I wouldve never called the poliice if it was just an accident. Probably what will end up happeninv is you will spend a shit load on a lawyer & if your lucky they might drop the charges but more than likely your bf will have some type of charges on his record forever.
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    Apr 11, 2011 6:22 PM GMT
    As a forewarning, I am NOT a lawyer nor am I licensed to practice law anywhere, Virginia particularly. So, this is not legal advice, merely an examination of the appropriate statutes.

    The main one that the magistrates are going to look at is this:
    Virginia Code §18.2-57

    It codifies the offense of simple assault and battery as a class 1 misdemeanor; however, this code section relies upon what is called the common law to define the elements of the offense.

    Common law is judge made law which has been around for centuries which we inherited in this country from our original ties with England. The common law definition of an assault and battery is an intentional harmful or offensive contact. To get even more specific, an assault under common law is separate from a battery.

    An assault is the apprehension of a harmful or offensive contact. Thus, even if you did not actually make contact with the individual, if you intended to make contact, you could be found guilty of assault.

    A battery is the actual harmful or offensive contact.

    So, if your story is as you have told it, There was no intent on your bf's side to do actual harm to you, which makes assault irrelevant.

    Since the prosecution should not be able to prove intention, any further prosecution would be pretty futile.

    If it does go further, Virginia Code §19.2-151 allows for the dismissal of an assault and battery warrant upon meeting certain conditions. This is called an accord and satisfaction. The requirement typically involves the injured party appearing in court and acknowledging in writing that he has received satisfaction, usually in the form of monetary compensation, for any injury he sustained. If the judge is satisfied with the agreement between the accused and the victim, then the judge has discretion to enter an order superseding any commitment, discharging any recognizance or dismissing the prosecution altogether. This provision does not apply to assaults against law enforcement officers or against household members.

    Do you live together? If you do, it can get tricky. Regardless, since you are in a relationship with him and there was physical contact, the state may prosecute as some kind of domestic assault.

    Domestic Assault cases can be very tricky, both legally and emotionally. And unfortunately, even in a case that seems like a minor matter that was blown out of proportion, it can be difficult to unwind the process. Even if you don't want to follow through with charges, it may not be simple or easy to get the prosecution to back off.

    If he is found guilty of a Domestic Assault in Virginia, he can face up to 12 months in jail and a fine of up to $2500. He may also be required to attend anger management classes or domestic violence counseling.

    If the facts of the case are weak (as they appear to be), I would simply argue that there is no real evidence to support the charge, and motion for a dismissal.

    It's a sticky situation, and the first thing to take away from this: talk with your bf and solve your issues about jealousy. Not talking about them is going to lead to more shit like this.

    Number 2: try not drinking so much when you're out with him so that situations like this don't arise.

    Number 3: DON'T let the drunks get what they want!!!! Unless it's food or something like that. Calling the police for a dumb argument, even if he wants you to.

    Good luck and hope that the public defender is half decent.
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    Apr 11, 2011 7:05 PM GMT
    redbull saidVa is a fucked up state with greedy & power hungry district attorneys. Once you called the police & the state becomes involved in a case like this they will push it to the limits no matter what you say. ...

    Don't blame the DA, blame feminists. In 9 out of 10 family violence cases the complainant (the victim) will want the charges dropped as soon as the arrest is made. Unfortunately feminists and battered-women groups put huge pressure on prosecutors not to dismiss family violence cases no matter what the wishes of the complainants are. This is because the groups believe that if a complainant recants it must be because she's been so battered she can't make reasonable decisions.
    So these cases have to go to trial.
  • TrentGrad

    Posts: 1541

    Apr 11, 2011 7:26 PM GMT
    TexDef07 said
    redbull saidVa is a fucked up state with greedy & power hungry district attorneys. Once you called the police & the state becomes involved in a case like this they will push it to the limits no matter what you say. ...

    Don't blame the DA, blame feminists. In 9 out of 10 family violence cases the complainant (the victim) will want the charges dropped as soon as the arrest is made. Unfortunately feminists and battered-women groups put huge pressure on prosecutors not to dismiss family violence cases no matter what the wishes of the complainants are. This is because the groups believe that if a complainant recants it must be because she's been so battered she can't make reasonable decisions.
    So these cases have to go to trial.


    I don't know...I don't think it's such a bad thing to have an automatic process in these situations.

    I have my suspicions that, if the OP actually explains the situation in a court room, including the fact that to some degree, he was invading his bf's space, trying to force him to calm down, and his drunk bf accidentally struck him not with his fist or even an open hand, but with an elbow, I can't imagine this not getting dismissed.

    I don't actually think that feminists or battered-women's groups are wrong in having the law require a DA to take something to trial, even if the victim wants to drop the charges because battered person syndrome is a very real psychological condition...and society is ultimately better off in setting an example where it can!

    My advice to the OP or anyone else for that matter would be that, when someone is drunk AND angry, talk to them...but as long as they aren't going to do something totally destructive (ie. drive drunk, hurt themselves or someone else), keep your hands off them and let them be!

    Perhaps talking gently to him as he was packing, and maybe offering to walk him back to his dorm would've been better for both of you than gently but forcibly setting him on the bed, and trying to control him while he was angry!

    BTW, I thought the drinking age in the USA was 21...is that different in Virginia?
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    Apr 11, 2011 8:24 PM GMT
    The drinking age is set by each state.
  • TrentGrad

    Posts: 1541

    Apr 11, 2011 8:30 PM GMT
    PaulNKS saidThe drinking age is set by each state.


    Ah...well I guess this may pose a problem.

    According to wikipedia, in 1974 the drinking age was lowered to 18 in Virginia...but just for beer. Then it was raised to 19 in 1981 for off premises consumption, then raised to 19 in 1983 for all beer sales, and finally raised to 21 again in 1985.

    Anyone else think this might pose something of a headache??? Though as the law apparently thinks people under 21 are incapable of being responsible while consuming alcohol, perhaps the OP's 18 year old boyfriend might have an out in that regard???

    Maybe the law will want to go after the bar that served him!
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    Apr 11, 2011 9:03 PM GMT
    PaulNKS saidThe drinking age is set by each state.


    "The National Minimum Drinking Age Act of 1984 (23 U.S.C. § 158 ), also called the Federal Uniform Drinking Age Act, was passed on July 17, 1984 by the United States Congress as a mechanism whereby all states would become thereafter required to legislate and enforce the age of 21 years as a minimum age for purchasing and publicly possessing alcoholic beverages. Under the Federal Aid Highway Act, a state not enforcing the minimum age would be subjected to a ten percent decrease in its annual federal highway apportionment.
    While this act did not outlaw the consumption of alcoholic beverages by those under 21 years of age, seven states and Washington D.C. extended its provisions into an outright ban. These states are: Alabama, Idaho, Indiana, Kansas, North Carolina, and Pennsylvania. However, most states still permit "underage" consumption of alcohol in some circumstances. In some states, no restriction on private consumption is made, while in others, consumption is only allowed in specific locations, in the presence of consenting and supervising family members as in the states of California, Colorado, Montana, New York, Texas, Virginia , West Virginia, Wisconsin, and Wyoming. The act also does not seek to criminalize alcohol consumption during religious occasions."

    It's 21 in the Commonwealth of VA.
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    Apr 11, 2011 9:32 PM GMT
    I am a licensed attorney in several U.S. jurisdictions but I can't give you any legal advice because there's no attorney-client relationship between us and, thus, there's no attorney-client privilege. I would suggest consulting a criminal defense attorney, not a civil litigator. I have included a link to the Virginia State Bar (see below), which should have some information on pro bono legal services, attorney referrals, etc. Best of luck.

    http://www.vsb.org/

    Also: http://www.vsb.org/site/pro_bono/resources-for-the-public/

  • SwimmingDoc

    Posts: 115

    Apr 12, 2011 1:40 AM GMT
    rcspeeder said
    Swimmerboy said-Thanks Doug I already did that though they said that since we cohabited togeather and I have physical marks it's out of my hands and goes to the state for prosecution. I told police and magistrate that I did not want to press any charges.


    I am not an attorney, nor do I play one on TV. I also don't know the laws in your state, but I didhave a very similar experience in Florida. Since the state was adamant about pursuing the charges we ended up going to trial. (I was the defendant; my sister in law was the "victim"). My attorney ended up getting the judge to dismiss the case based on the following Florida statute:

    784.03 Battery; felony battery.—
    (1)(a) The offense of battery occurs when a person:
    1. Actually and intentionally touches or strikes another person against the will of the other; or
    2. Intentionally causes bodily harm to another person.

    When my sister in law was on the stand and stated (in response to questioning by my attorney) That any contact between me and her was NOT against her will, the judge seemed rather perturbed that the state even took the case to trial. Especially since their "witness" was testifying for the defendant.

    If you research the VA statutes perhaps you can find something similar that will help.


    VA is a commonwealth and they will procecute any and everything I have went to so many people to tell them that this is misunderstanding but I keep hear that I am making excuses for him. He was drunk and when the officer asked him things he just agreed... he wont make other statement because he didnt want any more trouble he thought that I would get into trouble for supplying a minor
  • SwimmingDoc

    Posts: 115

    Apr 12, 2011 1:49 AM GMT
    TrentGrad said
    TexDef07 said
    redbull saidVa is a fucked up state with greedy & power hungry district attorneys. Once you called the police & the state becomes involved in a case like this they will push it to the limits no matter what you say. ...

    Don't blame the DA, blame feminists. In 9 out of 10 family violence cases the complainant (the victim) will want the charges dropped as soon as the arrest is made. Unfortunately feminists and battered-women groups put huge pressure on prosecutors not to dismiss family violence cases no matter what the wishes of the complainants are. This is because the groups believe that if a complainant recants it must be because she's been so battered she can't make reasonable decisions.
    So these cases have to go to trial.


    I don't know...I don't think it's such a bad thing to have an automatic process in these situations.

    I have my suspicions that, if the OP actually explains the situation in a court room, including the fact that to some degree, he was invading his bf's space, trying to force him to calm down, and his drunk bf accidentally struck him not with his fist or even an open hand, but with an elbow, I can't imagine this not getting dismissed.

    I don't actually think that feminists or battered-women's groups are wrong in having the law require a DA to take something to trial, even if the victim wants to drop the charges because battered person syndrome is a very real psychological condition...and society is ultimately better off in setting an example where it can!

    My advice to the OP or anyone else for that matter would be that, when someone is drunk AND angry, talk to them...but as long as they aren't going to do something totally destructive (ie. drive drunk, hurt themselves or someone else), keep your hands off them and let them be!

    Perhaps talking gently to him as he was packing, and maybe offering to walk him back to his dorm would've been better for both of you than gently but forcibly setting him on the bed, and trying to control him while he was angry!

    BTW, I thought the drinking age in the USA was 21...is that different in Virginia?
    '

    You are correct I should of never put my hands on him even to try and calm him down - I broke the law by unlawfully holding him against his will... Ill take that charge if it will release him. The drinking age is 21 I supplied.