Legal Question in Criminal Law in Virginia

Hello. My 10 year old son got choked to unconsciousness by another child in the nieghborhood. When I arrived my son was on the ground with snot covering his face, incoherent, and could not get up and walk by himself. After carrying him home in my arms and calling the doctor, I went to confront the mother of the accused child. This confrontation resulted in us arguing and spitting at each other. I flagged down the police, who were already in the neighborhood, and they went to my house and asked my son if he was ok, then proceeded to the other child's house to talk to his mother. I am unsure of who they talked to as far as the choking situation goes. They gave me a case number only in case I wanted to press charges. After trying to press charges on the child, the intake officer advised me that it was actually a felony, and in that case the police officer would have to take out felony charges. The officer now says that she can't do that because while on the scene, she was not informed that the other child rode up on a bike and immediately started choking my son, as in an "attack". I would like to obtain the police report that was filled out by the police, but am told that only an attorney can get that information. It seems to me that the job of a police officer would be to investigate a choking first and an argument between the parents second. I would like to know why the officer did not question my child further as to details of what happened, and why they did not press charges on the other child as a felony, regardless of whether it was an "attack" or not. The fact is that the child choked my son to unconsciousness, no matter what the reason or how it happened. Now I am in the position where I can only press simple assault charges myself, and would like to know 1) how can I obtain a copy of the report and 2) how can I handle the incompetent officer situation?

Asked on 6/18/10, 3:09 pm

1 Answer from Attorneys

Michael Sprano The Sprano Law Firm, LLP

With respect to the intake officer, whether to charge the case as a misdemeanor assault and battery or a felony is really up to the Commonwealth's Attorney and/or the police officer. The only question the intake officer should be asking is whether there is probable cause to support the petition you are seeking - assault and battery. The answer to that is clearly yes. Whether it was an unprovoked attack or not is really irrelevelant. As long as there was an unlawful touching done out of anger, it is at least an assault and battery. In order to constitute a felony, the government would have to prove that the defendant was specifically intending to kill your son, or permanently disable or disfigure him -- unlikely on these facts. In addition, they would have to prove that there was an actual "wound", which is not what you described.

My advice - (1) tell the intake officer that all you are seeking is a misdemeanor charge, and if the Commonwealth's Attorney feels differently when the case comes to court they can always amend the charge to a felony at that time; (2) talk to the officer again, tell her that all you want is a misdemeanor charge but the intake officer won't issue it, and ask for her help; (3) if all else fails, call the Commonwealth's Attorney's office and ask to schedule an appointment with an Assistant Commonwealth's Attorney. Tell them that another child attacked your son for no reason and choked him into unconsiousness, and that you have tried to get both the police officer and the intake officer to press charges but no one seems to want to do anything about it.

Remember that the Commonwealth's Attorney is an elected official who is responsible to his/her constituents - the public. The last thing they want is an angry mother talking to the press (or political opponent) about the lack of justice for her child.

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Answered on 6/18/10, 7:58 pm

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