West Virginia Domestic Battery and Domestic Assault: A Defense Guide
By J. Brandon Shumaker · Slavey & Shumaker PLLC · Morgantown, WV · Last updated October 28, 2026
Table of Contents
- Who Counts as a Family or Household Member
- Domestic Battery vs. Domestic Assault
- Penalties for First, Second and Third Offenses
- Arrest Without a Warrant and Weapons Seizure
- Bail and No-Contact Conditions
- Consequences Beyond Jail and Fines
- How a Domestic Case Moves Through Court
- Building a Defense
- Frequently Asked Questions
A domestic battery or domestic assault charge often begins with a single phone call and an arrest the same night. Within hours, a person can be barred from going home, ordered to have no contact with a spouse or partner, and facing the loss of the right to own a firearm.
At Slavey & Shumaker PLLC, our Morgantown criminal defense attorneys defend people charged with domestic offenses in Monongalia, Preston, Marion and Harrison Counties. Our office is on Chancery Row, beside the Monongalia County Courthouse. This guide explains the law as it is written today. For an overview of all domestic charges, see our domestic offenses page.
1. Who Counts as a Family or Household Member
What makes an assault or battery “domestic” is the relationship between the people involved. Section 61-2-28 uses the definition of “family or household members” in W. Va. Code § 48-27-204 (§ 61-2-28(e)). That definition covers people who:
- Are or were married to each other
- Are or were living together as spouses
- Are or were sexual or intimate partners
- Are or were dating, although a casual acquaintance or ordinary fraternization in a business or social setting does not establish a dating relationship
- Are or were residing together in the same household
- Have a child in common, whether or not they ever married or lived together
- Are related as a parent, stepparent, brother or sister (including half and step siblings), parent-in-law or step parent-in-law, child or stepchild, son- or daughter-in-law (including step), grandparent or step grandparent, aunt or uncle (including in-law and step), niece or nephew, or first or second cousin
- Have one of those family relationships to a person in the first six categories
2. Domestic Battery vs. Domestic Assault
| Charge | What the State Must Prove |
|---|---|
| Domestic battery | The person unlawfully and intentionally made physical contact of an insulting or provoking nature with a family or household member, or unlawfully and intentionally caused physical harm to a family or household member (W. Va. Code § 61-2-28(a)). |
| Domestic assault | The person unlawfully attempted to commit a violent injury against a family or household member, or unlawfully committed an act that placed a family or household member in reasonable apprehension of immediately receiving a violent injury (§ 61-2-28(b)). |
In plain terms, domestic battery involves actual contact or harm, while domestic assault involves an attempt or a threat of immediate violence without contact. A person charged under § 61-2-28 may not also be charged with simple assault or battery under § 61-2-9(b) or (c) for the same act (§ 61-2-28(f)).
3. Penalties for First, Second and Third Offenses
| Offense | Classification | Penalty |
|---|---|---|
| Domestic battery, first offense | Misdemeanor | Jail up to 12 months, a fine up to $2,000, or both (§ 61-2-28(a)) |
| Domestic assault, first offense | Misdemeanor | Jail up to six months, a fine up to $500, or both (§ 61-2-28(b)) |
| Domestic battery, second offense | Misdemeanor | Jail from 60 days to one year, a fine up to $4,000, or both (§ 61-2-28(c)) |
| Domestic assault, second offense | Misdemeanor | Jail from 30 days to six months, a fine up to $1,000, or both (§ 61-2-28(c)) |
| Third or subsequent offense within 20 years of a prior conviction | Felony | Two to 10 years in a state correctional facility, a fine up to $5,000, or both (§ 61-2-28(d)) |
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4. Arrest Without a Warrant and Weapons Seizure
Police do not need a warrant to arrest for domestic battery or domestic assault when the officer has observed credible corroborative evidence that an offense occurred and either has received an oral or written allegation from the alleged victim or a witness, or has observed credible evidence that the accused committed the offense (W. Va. Code § 48-27-1002(a)). Corroborative evidence can include visible injuries, the condition of the scene, statements by the accused, and written witness statements (§ 48-27-1002(b)).
- A person arrested this way must be taken before a magistrate in the county where the offense allegedly occurred (§ 48-27-1002(c)).
- The arresting officer must seize any weapons alleged to have been involved or threatened in the commission of domestic violence, and may seize weapons in plain view or found in a consensual search when necessary for safety (§ 48-27-1002(e)).
5. Bail and No-Contact 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, direct or indirect, with the alleged victim (W. Va. Code § 62-1C-17c(a)). If the court determines 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 residence, school and workplace and to have no further contact (§ 62-1C-17c(b)).
6. Consequences Beyond Jail and Fines
West Virginia prohibits a person convicted of misdemeanor domestic assault or battery under § 61-2-28, or of assault or battery under § 61-2-9(b) or (c) where the victim had one of the listed domestic relationships, from possessing a firearm (W. Va. Code § 61-7-7(a)(8)). Possessing a firearm in violation of that prohibition is a separate misdemeanor punishable by 90 days to one year in jail, a fine of $100 to $1,000, or both (§ 61-7-7(a)). A person may petition the circuit court to regain the ability to possess a firearm, but the court may grant relief only if possession would not violate federal law (§ 61-7-7(f)), and federal law separately prohibits firearm possession by people convicted of a misdemeanor crime of domestic violence (18 U.S.C. § 922(g)(9)).
A person charged with a violation of § 61-2-28 is not eligible for a pretrial diversion agreement under W. Va. Code § 61-11-22(e)(5). The same is true for a charge under § 61-2-9 where the alleged victim is a family or household member (§ 61-11-22(e)(6)).
Convictions under § 61-2-28, and certain assault and battery convictions under § 61-2-9(b) or (c) involving a spouse, co-parent or former cohabitant, are excluded from expungement under W. Va. Code § 61-11-26(c)(5). See our expungement page for the offenses that can be expunged.
A domestic charge often comes with a separate protective order case in family court. A qualifying domestic violence protective order can also prohibit firearm possession (§ 61-7-7(a)(7)). A conviction can affect employment, professional licenses, housing and custody decisions.
7. How a Domestic Case Moves Through Court
First and second offense domestic battery and domestic assault are misdemeanors, and magistrate courts have jurisdiction over misdemeanors committed in their county (W. Va. Code § 50-2-3). A third offense charged as a felony under § 61-2-28(d) proceeds in circuit court, and the magistrate court conducts the preliminary examination on the felony warrant and sets bail (§ 50-2-3). For a step-by-step look at what happens after an arrest, see our guide to the West Virginia criminal trial process.
8. Building a Defense
Every case depends on its facts. Issues we examine in domestic cases include:
- Self-defense or defense of others, when the accused was protecting himself or herself or someone else
- The relationship, whether the people involved meet the definition in § 48-27-204
- The elements, whether there was intentional contact or harm for battery, or a real attempt or reasonable fear of immediate violent injury for assault
- Credibility and motive, including inconsistent statements and allegations made during a divorce, separation or custody dispute
- The evidence, including 911 recordings, body camera video, photographs, medical records, texts and witness accounts
- Prior offense allegations, whether a claimed prior conviction or diversion actually qualifies for second or third offense penalties
Even when the State’s evidence is strong, an experienced defense attorney can negotiate to resolve the case on terms that limit its long-term consequences.
Defending Domestic Charges in Monongalia, Preston, Marion and Harrison Counties
We defend people charged with domestic battery and domestic assault in Morgantown and all of Monongalia County, Preston County, Marion County and Harrison County. If you cannot travel to Morgantown, we offer consultations by telephone.
9. Frequently Asked Questions About Domestic Battery and Assault in West Virginia
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Slavey & Shumaker PLLC, 174 Chancery Row, Morgantown. Serving Monongalia, Preston, Marion and Harrison Counties.
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.