Legal Question in Criminal Law in Virginia

I was recently charged and arrested for domestic assault. The story is this, my teen daughter who is in her 1st year of college has a slight emotional disorder that was untreated. She had had a bad day getting in a fight with her sister and her boyfriend earlier. Not knowing this and forgetting about her history of "losing it" and becoming irrational, loud and sometimes violent, I took away her college credit card because she was abusing it. Well, long story short, she went off started cussing, hitting and being threatening towards me, her sister and her mom. I told her to leave my room and then she started throwing things and getting physical. I ended up grabbing her wrists and wrestling around with her (She is insanely strong for a girl 100 lbs lighter than me) until I could restrain her (sit on her) so she could calm down. During the tussle she got an abrasion on her lip, neither of us know how it happened and it was very minor. Long and short, 30 minutes later she started up again, this time with her mother. During that altercation she hit her mother in the face (by accident, but hard) and ended up pushing the number "9" on her phone and that number dials 911. When I heard them answer I snatched the phone and said we have an out-of-control teen here. I ended up being arrested when they came because she was still out of it and told all kinds of embellished and untrue story. They asked me about her lip and I told them I had no idea how it occurred. My wife (her mother), my daughter (her sister) were both present during all of this and were witnesses. The police questioned everyone and we all stated that I only restrained her and that she was the aggressor. They took me away all the same. My daughter has since written an affidavit stating that she had not told the truth when the police came. My wife and daughter have also written affidavits saying that I did nothing wrong and that I was just restraining her and that I was protecting them and our home. My older daughter (after this event) agreed to get treatment and 2 days later she was in the doctors office and was prescribed a medicine that has completely helped her cope and deal with what appeared to be a chemical imbalance and depression. I was arraigned and waived my right to counsel (can't really afford one, don't want public counsel and feel that this is a waste of taxpayers money and the courts time) and am going it alone because I feeling there is NO CASE at ALL and it should be dropped or dismissed. After the full story, here is my question. How should I approach this with the ADA or prosecutor for him/her to agree prior to court to drop or dismiss the case. This is un-winnable, but I don't want to be found innocent/not guilty, I want it dropped/dismissed for insufficient evidence. They arrested me on the word of a (at the time) crazed lunatic teenager against the words of 3 eye witnesses. BTW: The police office was a rookie out of the academy and had to call his Sargent to find out what to do. So on the irate words of an out of control teen I was arrested. It would appear that the whole case will be the testimony of the responding officers, of course that is based on lies.

So a brief description of how I should proceed, what catch phrases, etc. The wording the request the dismissal and on what basis. I mean should I attempt to get it revolved before court? I don't want to go to court, I did nothing wrong and courts kinda scar me. One last thing, I have a family of 7 and between all of us we have had a few traffic tickets. I have had 6 dismissed by knowing how to proceed in court, but I am completely unsure in criminal court though. I am being wronged and it is criminal, so it takes on a new light for me. Any help, any phrases or law codes to quote or study, etc.

Thank you

P.S. I have only a few days to prepare. The trial date came up very quickly after the arraignment hearing.

P.P.S. My daughter is normally very sweet and pleasant and gets good grades, but had these episodes of uncontrolled rage. If this goes to trial is will split my family terribly, but my daughter has recanted anyway


Asked on 4/18/10, 10:19 pm

2 Answers from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Your decision to "go it alone" in this criminal matter is ill-advised and

could result in your conviction on the pending charge. (And, merely because

you've apparently had some success in getting some traffic tickets

dismissed is in no way indicative that you will achieve a similar outcome

with this crimnal case.)

Better get yourself a competent criminal defense counsel to represent

you who is experienced in the court where this matter is scheduled to

be prosecuted.

Furthermore, I will warn you that if you deign to approach the ACA assigned to

prosecute the case with the attitude that the Commonwealth has "NO CASE

at ALL and it should be dropped or dismissed", you will likely merely

stiffen their resolve to make sure that they in fact do have a case that can be

successfully prosecuted and won.

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Answered on 4/24/10, 4:44 am
Jonathon Moseley Moseley & Associates Law Firm

No matter what the case, the charge, or the facts, it is extremely unlikely that any case in Virginia will be dropped before the court date.

One of the reasons is that the prosecutor (Assistant Commonwealth Attorney) probably will not even open or look at the file until the day before the court date or perhaps even the morning of.

It is possible that the only time the prosecutor will have talked to the police officer (as one of the main witnesses) is the day of the court hearing. In fact, in the morning the prosecutor and the Court deal with AGREED plea deals first and resolve the vast majority of cases with a plea deal. So I have even seen it that the prosecutor cannot squeeze in enough time to talk the case over with the police officer, and any witnesses, until late morning on the day of the court hearing. They are in a rush dealing with plea deals and agreed dispositions during the early morning.

However, the affidavits of teh supposed "victim" and your wife will be extremely helpful.

NOTE that in general you must have a LIVE witness. Affidavits are often not admissible in court, even though they are sworn.

However, the prosecutor will know (and you could piont it out) that IF your daughter or your wife as the other witness were called as witnesses, they COULD NOT testify differently from what they said in their affidavit.... at least not with any credibility.

If the prosecutor tried to call them as witnesses, you would put the affidavit in front of the witness, and the prosecutor could never get any testimony that he needs to win the case.

I don't quite agree with Michael that you can't tell the prosecutor that the Commonwealth has no case.

However, I do think you should not try this alone.

For example, if you do it alone, you may say things that can be used as evidence against you. If you have an attorney, the attorney will speak and this CANNOT be used as evidence against you.

Whatever you do, I assume that this is in General District COurt or JDR. If you are found guilty, YOU HAVE 10 DAYS TO APPEAL and you will get a whole new trial in Circuit Court, with a JURY. Ask for a jury.

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Answered on 4/24/10, 6:17 am


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