Withdrawing a Statement in a West Virginia Domestic Battery Case

Attorney Answer

You cannot drop this case. Once the report was made, the decision whether to charge and prosecute belongs to the State, not to you — and the warrant will not go away because you changed your mind.

The offense is defined by W. Va. Code § 61-2-28. Domestic battery is punishable by up to 12 months in jail and a fine up to $2,000; domestic assault by up to 6 months and a fine up to $500. Second offenses are enhanced, and a third or subsequent violation within 20 years is a felony carrying two to ten years. The statute applies where the victim is a "family or household member" as defined in W. Va. Code § 48-27-204, which includes a current or former sexual or intimate partner — so a boyfriend is covered.

What § 61-2-28 does not do is say anything about what happens when the complaining witness wants to take it back. That is because it does not depend on you. Whether the case continues rests on the prosecuting attorney's discretion, and the State can proceed on other evidence — the 911 recording, photographs, what officers saw and wrote down, medical records — without your cooperation.

There is a line here you need to understand before you do anything. You may tell the prosecutor you do not wish to proceed, and you may decline to volunteer testimony. What you must not do is give a new statement you know to be false. A knowingly false statement to police or a prosecutor can expose you to charges of your own for false swearing or obstruction. If what you originally reported was true, the safe course is to say you do not want to participate — not to say the incident never happened.

What you can do

1. Find out which court has the case and who the prosecuting attorney is. The magistrate clerk in the county can tell you the case number and the assigned prosecutor. 2. Ask to speak with the victim-witness coordinator in that office. Tell them, in your own words, what you want and why. That is the person whose job is to bring your position to the prosecutor. 3. Be honest rather than clever. Saying "I do not want to go forward with this" is safe. Saying something you know is untrue is not. 4. Do not sign anything drafted by him, his family, or his lawyer. An affidavit prepared by the defense can create problems for you that you did not intend. 5. If a protective order is in place, do not contact him — even to tell him about this. Violating it is a separate offense, and the violation would be yours. 6. If you are worried about your own exposure for anything you said or are being asked to say, talk to your own lawyer. The prosecutor is not your lawyer, and neither is his.