Domestic assault or battery in West Virginia is a simple assault or battery against a victim who is a family or household member including:
- a current or former spouse of the offender
- person with whom the offender resides or previously resided
- person who is or was a sexual or intimate partner of the offender
- person who the offender is dating or previously dated
- person with whom the offender has a child, and
- person with whom the offender is related by blood, adoption or marriage including first and second cousins and aunts and uncles. (W. Va. Code Ann. §61-2-28, §48-27-204.)
Simple assault in West Virginia consists of attempting to cause violent injury to another person or causing another person – by threats, words or actions – to feel afraid of impending violence. (W. Va. Code Ann. §61-2-9(b).)
Battery in West Virginia is unlawful, intentional physical contact that is insulting or provoking or results in physical harm. (W. Va. Code Ann. §61-2-9(c).)
Simple assault and battery are misdemeanors in West Virginia because the crimes involve only threats to injure, insulting or provoking contact or minor bodily injury like a cut, scrape or bruise. Injury such as a broken bone, disfigurement, loss of a limb, or requiring surgery or hospitalization is a “serious bodily physical injury.”
If an offender commits a violent crime against a family or household member and the crime is more serious than misdemeanor assault or battery, the crime is addressed under the general assault and battery statutes.
Domestic Violence Subsequent Offense
Domestic assault and battery in West Virginia also are misdemeanors unless the crime is the offender’s third domestic violence offense. For a second offense, the court is required to impose more severe penalties, and for a third or subsequent offense, the assault or battery is charged as a felony.
In determining that a domestic assault or battery is a subsequent offense, the court can count any combination of prior domestic assault or battery misdemeanor offenses and prior convictions for two other crimes – felony unlawful assault or battery and unlawful restraint crimes – if those crimes were committed against a family or household member. A person commits an unlawful assault by shooting, stabbing cutting, wounding or causing serious bodily injury to another person but without the intent to cause serious harm or death. (W. Va. Code Ann. §61-2-9(a).)
For more information on the crime of unlawful assault in West Virginia, see Malicious or Unlawful Assault in West Virginia.
The crime of unlawful restraint is a misdemeanor and involves restraining a person either by actual physical force or by threat of violence. (W. Va. Code Ann. §61-2-14-g(a).)
In addition to actual prior convictions, the court also can count prior domestic violence cases in which the defendant participated in a pre-trial diversion or pre-prosecution program. This allows the court to count cases that did not result in a conviction because of a deferred sentence or diversion program.
Penalties for Domestic Assault and Battery in West Virginia
The penalty for domestic assault in West Virginia is up to six months in jail or a fine up to $100, or both.
If the domestic assault is the offender’s second domestic violence offense, the defendant must serve a minimum of thirty days or up to six months in jail or pay a fine up to $500, or both.
The penalty for domestic battery in West Virginia is up to one year in jail or a fine up to $500, or both.
If the domestic battery is the offender’s second domestic violence offense, the defendant must serve a minimum of sixty days or up to one year in jail or pay a fine up to $1000, or both.
Domestic assault or battery – third offense
The penalty for the felony of a third or subsequent domestic violence offense is a minimum of one year or up to five years in prison, or a fine up to $2,500, or both.
Courts in West Virginia are required to order a defendant to pay restitution. This is reimbursement to the victim for any expenses or financial losses resulting from the crime, such as the cost of medical treatment or counseling or repair or replacement of damaged property.
Pre-Trial Diversion, Suspended Sentence and Probation
Pre-trial diversion programs and suspended sentences are alternatives to jail or prison that are available in some cases.
Before trial, the prosecuting attorney can enter into a pre-trial diversion agreement with a defendant charged with a first-time domestic violence offense, but only if a specific domestic violence pre-trial diversion program is available. The agreement usually provides that the defendant will not be prosecuted for the crime if he complies with certain conditions over a period of time, up to 24 months. The conditions can include not committing any further criminal acts, participating in treatment, maintaining a permanent residence or employment, observing a curfew, drug testing and, in some cases, complying with supervised probation. Probation normally involves similar conditions, as well as reporting to a probation officer on a regular basis.
The arrest and diversion will be part of the defendant’s criminal record. If the defendant fails to satisfy the conditions of the pre-trial diversion agreement, the agreement usually requires an automatic guilty plea for the offense charged and whatever sentence the court decides to impose.
Pre-trial diversion is not available for subsequent offenses because of the mandatory minimum jail and prison sentences.
In some cases, the pre-trial diversion agreement may involve only an agreement that the defendant will comply with conditions in exchange for the opportunity to plead guilty at the end of the conditional period to a lesser offense.
If the court suspends a sentence, the court imposes a jail sentence after the defendant is convicted or pleads guilty to domestic assault or battery, but allows the defendant to serve all or a portion of the time on probation rather than in jail. For instance, the court might impose the mandatory minimum jail sentence for a second domestic violence offense and then impose additional jail time, which is suspended. Probation can include the conditions listed above. The defendant must successfully complete probation and any other conditions the court imposes or he will be required to complete the sentence in jail or prison.
The Value of Good Representation
A conviction for domestic assault or battery becomes part of your permanent criminal record. If you are convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. A conviction for a domestic violence crime – even a misdemeanor – can hurt you when you are looking for a job or applying to rent a house or apartment. A convicted felon loses the right to vote and carry firearms and can lose certain professional licenses.
An experienced attorney can determine whether you have any grounds for dismissal of the charges against you, explore plea options an defenses, or represent you at trial.
Only someone familiar with the local criminal court system and cases like yours will know how good your chances are for a favorable outcome in court or at the negotiating table. A knowledgeable attorney will take all of the circumstances of your case into consideration, assist you in making decisions, and protect your rights.