The news story is here:

During fingerprinting [after being arrested for drunk driving], [the defendant] then allegedly moved closer to one of the officers and passed gas, the station reported. In the complaint, the investigating officer wrote that police noticed a "very strong" odor. The alleged stunt led [the defendant] to be charged with another offense — battery on an officer . . . .

If you think this story reeks of police overreaching, I agree. The West Virginia battery-on-an-officer statute is § 61-2-10b(c), and it states:

Any person who unlawfully, knowingly and intentionally makes physical contact of an insulting or provoking nature with a police officer . . . acting in his or her official capacity, or unlawfully and intentionally causes physical harm to that person acting in such capacity, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one month nor more than twelve months, fined the sum of five hundred dollars, or both.

So this raises a critical question of statutory interpretation that I'm sure many of you wonder about from time to time: does farting "make physical contact" or "cause physical harm"?

  There are no West Virginia cases that I could find that are really relevant to the question. More broadly, I couldn't find a single case in which passing gas led to battery charges. However, if we assume that West Virginia's statutory terms of "physical contact" and "physical harm" are meant to incorporate the usual elements of criminal battery, then farting in a police officer's general direction shouldn't constitute battery. According to 6 C.J.S. Assault and Battery s 70, relied on in a number of cases:

It is essential to the offense of battery or assault and battery that there be a touching of the person of the prosecutor, or of something so intimately associated with, or attached to, his person as to be regarded as a part thereof.

This touching, however, need not be in the form of a blow but may consist of any sort of contact; it may include every touching or laying hold, however slight, of another or his clothes in an angry, revengeful, rude, insolent, or hostile manner; or the direct or indirect application of force either by the aggressor himself, or by some substance or agency placed in motion by him. Hence it may consist in the beating, striking, or whipping of a person, striking him with a thrown missile, or pouring or throwing vitriol or other corrosive chemical upon him. It may also take the form of merely pushing or shoving him, or detaining him, or snatching or wrestling something from his possession.

On the other hand, if there is no actual physical touching, then no battery occurs. See Reese v. State, 457 S.W.2d 877 (Tenn. Cr. App. 1970) (firing a bullet into officer's car but missing is not a battery because no physical touching occurs). It seems pretty tough to argue that adding a smelly gas into the area near an officer constitutes actual physical touching. As a result, it shouldn't be criminal battery.

  UDPATE: The rule of law has prevailed! The government has dropped the charge. The freedom to pass gas lives on.