Morgantown Domestic Battery and Assault Defense Lawyers

By J. Brandon Shumaker and J. Tyler Slavey  ·  Slavey & Shumaker PLLC  ·  Morgantown, WV  ·  Last updated November 2, 2026

Quick Answer: In West Virginia, a first offense of domestic battery is a misdemeanor punishable by up to 12 months in jail, a fine of up to $2,000, or both, and a first offense of domestic assault is a misdemeanor punishable by up to six months in jail, a fine of up to $500, or both (W. Va. Code § 61-2-28(a), (b)). A third offense within 20 years of a prior conviction is a felony carrying two to 10 years (§ 61-2-28(d)). A conviction generally bars firearm possession (§ 61-7-7(a)(8)) and cannot be expunged under the general expungement statute (§ 61-11-26(c)(5)). Slavey & Shumaker PLLC defends domestic charges in Monongalia, Preston, Marion and Harrison Counties. Call (304) 212-5791.

A domestic battery or domestic assault charge usually begins with a single call to the police, often during an argument, and the consequences start right away: an arrest, bond conditions that can keep you out of your own home, and a case that can affect your gun rights, your job and your family.

At Slavey & Shumaker PLLC, our Morgantown criminal defense attorneys defend people charged with domestic offenses in Monongalia, Preston, Marion and Harrison Counties. Your first consultation is free and confidential. For a deeper look at the statutes, see our Domestic Battery and Domestic Assault Defense Guide.

1. Who Counts as a Family or Household Member

What separates domestic battery and domestic assault from simple battery and assault is the relationship. The offense must be committed against a “family or household member” as defined in W. Va. Code § 48-27-204 (§ 61-2-28(e)). That includes people who:

  • Are or were married to each other, or are or were living together as spouses;
  • Are or were sexual or intimate partners, or are or were dating;
  • Are or were residing together in the same household;
  • Have a child in common, whether or not they ever married or lived together; or
  • Are related, including parents, stepparents, children, siblings, in-laws, grandparents, aunts, uncles, nieces, nephews and first or second cousins, or have one of those relationships to a family or household member.
Why this matters. A casual acquaintance or ordinary fraternization in a business or social context does not establish a dating relationship (§ 48-27-204(4)). If the relationship does not fit the statute, the charge should not be domestic battery or domestic assault.

2. Domestic Battery vs. Domestic Assault

Offense What the State Must Prove Source
Domestic battery Unlawfully and intentionally making physical contact of an insulting or provoking nature with a family or household member, or unlawfully and intentionally causing physical harm to a family or household member § 61-2-28(a)
Domestic assault Unlawfully attempting to commit a violent injury against a family or household member, or unlawfully committing an act that places a family or household member in reasonable apprehension of immediately receiving a violent injury § 61-2-28(b)

In short, battery involves actual contact or harm, while assault involves an attempt or a threat of immediate violent injury. A person charged under § 61-2-28 may not also be charged with simple battery or assault under § 61-2-9(b) or (c) for the same act (§ 61-2-28(f)).

3. Penalties for First, Second and Third Offenses

First Offense: Misdemeanor
§ 61-2-28(a), (b)

  • Domestic battery: up to 12 months in jail, a fine of up to $2,000, or both
  • Domestic assault: up to 6 months in jail, a fine of up to $500, or both

Second Offense: Misdemeanor
§ 61-2-28(c)

  • Domestic battery: 60 days to 1 year in jail, a fine of up to $4,000, or both
  • Domestic assault: 30 days to 6 months in jail, a fine of up to $1,000, or both

Third or Later Offense: Felony
§ 61-2-28(d)

  • Applies if the offense occurs within 20 years of a prior conviction of a qualifying offense
  • 2 to 10 years in a state correctional facility, a fine of up to $5,000, or both
Prior offenses count more broadly than many people expect. For second and third offense purposes, the statute counts prior domestic battery and assault convictions, certain other assault, battery and related convictions where the victim had a close relationship with the defendant, and a prior period of pretrial diversion for one of these offenses (§ 61-2-28(c), (d)).

Charged With Domestic Battery or Assault?

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4. Arrest, Bond and No-Contact Conditions

Arrest without a warrant. An officer may arrest for domestic battery or assault without a warrant if the officer has observed credible corroborative evidence that an offense occurred and either received an allegation from the alleged victim or a witness, or observed credible evidence that the accused committed the offense (W. Va. Code § 48-27-1002(a)). Statements by the accused admitting an element of the offense are listed in the statute as corroborative evidence (§ 48-27-1002(b)(4)).

No-contact bond conditions. When the charge is a crime against a family or household member, the court may make it a condition of bond that the defendant have no contact of any kind with the alleged victim (§ 62-1C-17c(a)). If the court finds the defendant poses a threat or danger to the alleged victim or another family or household member, it must order the defendant to stay away from the alleged victim’s home, school and workplace (§ 62-1C-17c(b)).

Follow the bond conditions exactly. A violation can lead to forfeiture of bail, a bench warrant, being taken back into custody or stricter conditions (§ 62-1C-17c(b)). An officer who sees a violation, including the defendant’s presence at the alleged victim’s home, must immediately arrest the defendant (§ 62-1C-17c(d)). This is true even if the alleged victim invites the contact.

A domestic violence protective order is a separate civil case under Chapter 48, Article 27 of the Code. What you say in that case can be used in the criminal case, so talk with a lawyer before any protective order hearing. See our Bail and Bond page for more on the bond process.

5. Firearms

  • After a conviction. A person convicted of a misdemeanor assault or battery under § 61-2-28, or under § 61-2-9(b) or (c), where the victim was a current or former spouse or intimate partner, a co-parent, a person the defendant lived with, a parent or guardian, the defendant’s child or ward, or a household member, may not possess a firearm (W. Va. Code § 61-7-7(a)(8)). Federal law separately prohibits firearm possession after a conviction for a misdemeanor crime of domestic violence (18 U.S.C. § 922(g)(9)).
  • Protective orders. A person subject to certain domestic violence protective orders issued after a hearing may not possess a firearm (§ 61-7-7(a)(7)).
  • Restoring the right. A person barred under § 61-7-7(a) may petition the circuit court of the county of residence to regain the ability to possess a firearm, but the court may grant the petition only if possession would not violate federal law (§ 61-7-7(f)).

6. Other Consequences

  • No expungement of a conviction. Convictions under § 61-2-28 cannot be expunged under the general conviction expungement statute (§ 61-11-26(c)(5)). Charges for these offenses that were dismissed after deferred adjudication also cannot be expunged under § 61-11-25(a).
  • Diversion limits. Pretrial diversion is not available for a felony crime of violence against a family or household member (§ 61-11-22(e)(1)), and a prior diversion counts as a prior offense for enhancement (§ 61-2-28(c), (d)).
  • Family, work and housing. A domestic charge can affect custody and family court matters, employment and professional licensing, and housing.
  • Immigration. Domestic violence convictions can carry serious immigration consequences. Anyone who is not a United States citizen should speak with both criminal defense and immigration counsel before resolving a case.

7. How We Defend a Domestic Case

1We Test the Relationship Element

The State must prove the alleged victim is a family or household member under § 48-27-204. If the relationship does not fit, the charge cannot stand as a domestic offense.

2We Look at What Actually Happened

Many cases arise from mutual arguments, conflicting accounts or allegations made during a breakup or custody dispute. Self-defense, lack of intent and the absence of physical evidence can all matter.

3We Examine the Evidence and the Arrest

We review 911 recordings, body camera video, photographs, medical records and witness statements, and whether the arrest and any statements were lawfully obtained.

4We Challenge the Prior Offenses

Because a prior conviction or diversion can turn a misdemeanor into a second offense or a felony, we check whether each prior actually qualifies under § 61-2-28(c) and (d), including the relationship and the 20-year window for a third offense.

5We Protect Your Rights in the Related Cases

Protective order hearings, family court matters and bond conditions often run alongside the criminal case. We coordinate the defense so what happens in one does not damage the other.

8. What to Do After an Arrest

  1. Do not talk about the incident with police without a lawyer. Politely say you want to speak with an attorney.
  2. Follow every bond condition. Do not contact the alleged victim, directly or through others, if a no-contact condition is in place, even if the alleged victim reaches out to you.
  3. Do not post about the case on social media or send texts or messages about it.
  4. Write down what happened and the names of any witnesses while it is fresh, and keep any texts, photos or messages that may matter.
  5. Call a lawyer early, especially before any protective order hearing.

9. Frequently Asked Questions About Domestic Charges in West Virginia

What is the penalty for domestic battery in West Virginia?
A first offense of domestic battery is a misdemeanor punishable by up to 12 months in jail, a fine of up to $2,000, or both (W. Va. Code § 61-2-28(a)). A second offense carries 60 days to one year in jail, a fine of up to $4,000, or both (§ 61-2-28(c)). A third or subsequent offense within 20 years of a prior conviction is a felony punishable by two to 10 years, a fine of up to $5,000, or both (§ 61-2-28(d)).
What is the penalty for domestic assault in West Virginia?
A first offense of domestic assault is a misdemeanor punishable by up to six months in jail, a fine of up to $500, or both (W. Va. Code § 61-2-28(b)). A second offense carries 30 days to six months in jail, a fine of up to $1,000, or both (§ 61-2-28(c)). A third or subsequent offense within 20 years of a prior conviction is a felony (§ 61-2-28(d)).
Who counts as a family or household member?
W. Va. Code § 48-27-204 includes people who are or were married, living together as spouses, sexual or intimate partners, dating, or residing in the same household; people who have a child in common; and a long list of relatives, including parents, children, siblings, in-laws, step-relatives, grandparents, aunts, uncles, nieces, nephews and first or second cousins. A casual acquaintance or ordinary fraternization in a business or social context does not establish a dating relationship.
Can police arrest me for domestic battery without a warrant?
Yes, in some circumstances. Under W. Va. Code § 48-27-1002(a), an officer may arrest without a warrant if the officer has observed credible corroborative evidence that an offense occurred and either received an allegation from the alleged victim or a witness or observed credible evidence that the accused committed the offense. Statements by the accused admitting an element of the offense are listed as corroborative evidence (§ 48-27-1002(b)(4)).
Can the alleged victim drop the charges?
The case is brought by the State, not by the alleged victim, so the prosecutor decides whether to proceed. The alleged victim's wishes can matter, but they do not end the case on their own. Do not contact the alleged victim if a no-contact bond condition is in place.
Will I lose my gun rights if convicted?
Generally, yes. W. Va. Code § 61-7-7(a)(8) prohibits firearm possession after a misdemeanor assault or battery conviction under § 61-2-28, or under § 61-2-9(b) or (c), when the victim had one of the relationships the statute lists, and federal law separately prohibits possession after a misdemeanor crime of domestic violence. A state court petition to regain the right under § 61-7-7(f) can be granted only if possession would not violate federal law.
Can a domestic battery conviction be expunged?
Not under the general conviction expungement statute. W. Va. Code § 61-11-26(c)(5) excludes convictions under § 61-2-28. Charges for certain domestic battery and assault offenses that were dismissed after deferred adjudication also cannot be expunged under § 61-11-25(a).
Do I have to come to Morgantown to meet with a lawyer?
No. We offer consultations by telephone if you cannot travel to Morgantown. Call (304) 212-5791 for a free, confidential consultation.
Our Attorneys
J. Brandon Shumaker
Managing Attorney
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J. Tyler Slavey
Managing Attorney
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Scott B. Harris
Associate Attorney
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Kasey Libby
Associate Attorney
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Charged With a Domestic Offense?

Slavey & Shumaker PLLC, 174 Chancery Row, Morgantown. Defending domestic battery and assault charges in Monongalia, Preston, Marion and Harrison Counties.

Call (304) 212-5791

This page is provided for general informational purposes about West Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and past results do not guarantee a similar outcome.