What Is Probable Cause in Virginia Domestic Abuse Cases?

Domestic Violence Law Book With a Pen and Scales of JusticeA police officer should not arrest you just because the officer thinks you might have broken the law. An officer may detain you if the officer has reasonable suspicion that you committed a crime, but the officer may not arrest you. Instead, Virginia law requires police officers to have probable cause that you violated the law before taking you into police custody.

What Is Probable Cause in Virginia Domestic Violence Cases?

The Fourth Amendment to the United States Constitution establishes the probable cause standard and provides that no warrants shall be issued without probable cause. This standard applies to all criminal law cases, including domestic violence cases.

While probable cause is necessary before a domestic assault and battery arrest, an arrest warrant is not always required in Virginia.

Virginia Code §19.2-81.3 allows a law enforcement officer to arrest someone without a warrant when certain laws are allegedly violated. Specifically, probable cause is required, but a warrant is not necessary if a police officer has cause to believe that you:

  • Committed an Assault and Battery Against a Family or Household Member. Virginia Code §18.2-57.2 makes it a crime to commit an assault and battery against a relative or household member.
     
  • Violated a Protective Order. Virginia Code §18.2-60.4 makes it a crime to violate any provision of an emergency protective order, preliminary protective order, or protective order issued according to Sections 19.2-152.8, 152.9, or 152.10 of Virginia law.
     
  • Violated Provisions of a Juvenile or Domestic Protective Order. Virginia Code §16.1-235.2 makes it a crime to violate any provision of a protective order issued according to Sections 16.1-253, 253.1, 253.4, 278.14, 279.1, or 20-103(B) of Virginia law. Generally, these laws apply to protective orders in juvenile and domestic abuse cases.

If, based on all of the facts, a police officer has probable cause to believe that you violated one of these statutes and that you were the predominant physical aggressor, then the officer will arrest you unless special circumstances require a different course of action.

Prominent Aggressors

When deciding whether or not you are the prominent aggressor, the police officer should consider:

  • Who was the first aggressor
     
  • The protection of the health and safety of family and household members
     
  • Prior complaints of family abuse against you involving the family or household members
     
  • The relative severity of any injuries suffered in the incident
     
  • Whether the injuries may have been inflicted in self-defense
     
  • Witness statements
     
  • Other observations

Determining Probable Cause

While the officer does not need a warrant to arrest someone for the alleged violation of the law described above, the officer still needs probable cause before making an arrest. Probable cause may be based on the officer’s observations, a reasonable complaint from someone else who observed the alleged crime, or the officer’s investigation.

After an officer responds to an alleged domestic violence incident, the officer must file a written report with the police department. This report must be filed regardless of whether or not an arrest was made and must describe whether the officer has probable cause to believe domestic violence occurred.

Contact a Virginia Domestic Violence Defense Lawyer Quickly After an Arrest

An arrest is not the same as a conviction. You may feel like the case against you is already decided by the government, but you still have the opportunity to defend yourself.

Your Fairfax domestic violence defense lawyer will consider all of the evidence against you and develop a strategic defense plan. One of the things that we will consider is whether the police had probable cause to arrest you. If the police never had probable cause to arrest you, then you should not be convicted.

Domestic abuse and violation of protective order charges carry significant legal penalties and may change your family relationships. Don’t take a risk with your future. Contact our Fairfax violent crime defense lawyers today to find out more about your rights, how a Virginia criminal law case works, and what we can do together to protect you. Call us or fill out our online contact form to have us contact you at any time.