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The Wilson Law Firm

Are police required to make an arrest when in an Assault and Battery case?

When police respond to a report of any crime, whether it is an Assault and Battery, Drug Possession, Burglary, Rape, Murder or any other offense, the police investigate the alleged criminal activity in an attempt to determine whether they think the evidence amounts to probable cause to believe a particular person committed a particular offense.  If the opinion of the police is that there is probable cause to believe a certain person committed an offense, then the facts and circumstances of the alleged offense dictate the next step taken by police. 

In some cases police can take a person into custody even though they do not yet have a warrant.  In other cases police are not permitted to make an arrest without a warrant so the officer must either go get an arrest warrant and return to arrest the person or persuade the accused to voluntarily accompany the police to the station to be served with the warrant.  For some this is an attractive option becasuse it avoids the embarrassment and disruption of having the police return to make the arrest at a later time which is almost certainly going to be less convenient. 

Although the normal rule under Virginia law is that officers should not make warrantless arrests for misdemeanor offenses which were not committed in the presence of the officer, the crimes of Assault and Battery (A&B) and Assault and Battery of a Family or Household Member (Domestic A&B) are exceptions to that general rule and Virginia law allows officers to do so.  In fact, Virginia law says that in  most cases if an officer has probable cause to believe a Domestic A&B has occurred, the officer "shall arrest and take into custody the...predominant physical aggressor."  Therefore, officers in Virginia are not required to make an arrest if investigation reveals that an Assault and Battery has occurred, but if the Assault and Battery was against a family or household member then Virginia law does require officers to arrest the "predominant physical aggressor."    

If you have been issued a summons, or were arrested and taken into custody, and are accused of an Assault and Battery, a Domestic Assault and Battery against a Family or Household Member, or any other Criminal, DUI / DWI or Traffic offense and would like to speak with a Virginia Criminal, DUI / DWI & Traffic Defense Lawyer, call The Wilson Law Firm at 703-361-6100 and we'll be happy to discuss your situation with you in more detail.

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