Virginia law enforcement officers are required to make an arrest in almost every domestic violence case. Virginia law requires that when police officers are called to a domestic dispute that they are to determine who the primary aggressor is and arrest that person.
Occasionally, police are not able to determine who a primary aggressor is. In the vast majority of cases, because of the way the law is written as well as the standing orders that are given to officers by the local law enforcement agencies, they do in fact arrest someone the vast majority of the time.
To best understand the arrest process surrounding a Virginia domestic violence charge, consult with an experienced attorney as soon as possible. A knowledgeable domestic violence lawyer in Virginia can help an individual understand the proceedings surrounding an arrest as well as how to act to help lessen any consequences they may face.
Probable cause refers to reliable facts which would allow law enforcement or a magistrate or a judge to conclude that something has happened. In most cases, probable cause is referring to probable cause for arrest, but probable cause can also be probable cause for a search.
Reasonable fear of serious imminent injury or death is a concept that relates to whether a person objectively believes that one of those things is about to happen to them. That is different than a determination of whether someone believes that, in the person’s situation, they individually believe that.
Rather, it is a determination about whether a reasonable person given all of the facts and circumstances would believe that one of those things are true.
In most senses, the Virginia domestic violence arrest process is similar to a standard arrest. The arrest is similar to other arrests in the sense that a person is going to be taken into police custody. They are going to be brought before a magistrate, they will be processed, and an initial determination will be made as to whether they are going to be admitted to bail.
The primary difference is that in most domestic violence arrests, the magistrate is also empowered to issue a temporary protective order which will last 72 hours and then automatically expire. In the vast majority of cases, not only will a person have a criminal charge, but they may have a temporary protective order as well.
After the person’s arrest for domestic violence in Virginia, the person is going to be taken to the police station and be processed. The person can expect to go in front of a magistrate judge who is going to issue any warrants against the person that they believe that there is probable cause to issue. The magistrate will also make an initial determination about bail.
If the person is admitted to bail, whether there is going to be a bond required of the person is a condition of that determination. In most cases, unless the person is charged with a serious felony or has a bad criminal record, they are going to be given a bond and released.
From that point on, the person can expect that there will be an initial hearing with the judge to advise the person that they have the right to counsel. Then subsequent to that, there will be a substance of hearing which will either be a trial in the case of a misdemeanor or a preliminary or, what sometimes is called, a probable cause hearing in the case of a felony.
It is important not to talk to the police at any phase because the function of law enforcement is not to help the person in that situation. Law enforcement’s function is to gather evidence and to build the best case against the person that they can. It is often true that the police will attempt to have a conversation with the person; they may do it in a friendly way or they may do it in a taunting way, asking the person what they have to hide.
In either case, the only thing that will happen in the course of that conversation is that the person will incriminate him or herself or the person will make statements that police may say later are inconsistent with what the person may testify to a trial. Everyone has a right under the Fifth Amendment to remain silent and during the course of an investigation or arrest, it is critically important that they stand on that right and make absolutely no statements to the police.
It is important to have a lawyer involved in the person’s case as early as possible. There are two main reasons for this.
The first is that there are a number of things that a domestic violence defendant can be doing proactively to help build the defense in their case, as well as to generate mitigation in the case. The second reason is that there are a number of common pitfalls which people get trapped in when proceeding through the arrest process.
This can be anything from making statements to the police to making statements to the alleged victim. Even talking to friends about the case can be dangerous. Having a lawyer intercede early will keep the prosecution from creating new evidence or doing anything that can damage the case moving forward.
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