Virginia Criminal Defense Legal Questions

I am not sure from the question whether the terminology you are using is correct so please keep that possibility in mind.  But as a general principle if the Commonwealth of Virginia has filed a detainer it is because the Commonwealth of Virginia has a case it wants to bring to Court against someone.  Thus, unless and until the Commonwealth either drops that case or the case is successfully challenged in Court or otherwise concluded, they will keep the detainer in place until the person they want is brought before the Court.  The ICE detainer is somewhat similar in that it basically means that ICE has a matter that they want the person to answer for and thus, until that matter is concluded the detainer remains outstanding.... Read More

The lack of a prior record will always help but embezzlement is a serious charge and you most definitely should be seeking a criminal attorney and directing questions about the case to that person.  What I advise any person in this situation is that you should not be discussing the case with anyone other than your attorney.... Read More

The license suspension is unfortunately mandatory under Virginia law.  But it sounds like the Judge may have given you a fairly standard first offender result.  That may mean that so long as you do everything the Court told you to do and stay out of trouble then at the end of the six month period your charge will be dismissed and there will be no conviction on your record.  Without having actually been in Court it is hard to be sure, but it sounds likely.  Your other possible option then would have been a likely fine and suspended jail sentence without the community service but in that event, you'd have a conviction on your record.  If you had an attorney with you I would recommend calling that person and clarifying what happened.... Read More

It depends what you wrote about drugs in your text message.At the federal level, if your text related to engaging in an illegal felony drug transaction, you could be charged with the crime of using a communication facility in furtherance of a drug offense. The statute, 21 USC 843(b), states that is unlawful for any person “knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission” of acts constituting a felony drug offense.  A “communication facility” includes “ "all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.” Thus, text messages are included. The maximum penalty is four years in prison, and each text message would be a separate crime. If you were texting someone to obtain drugs for your personal use, you would not be violating this statute. The Supreme Court held in 2009 that using a telephone to make a misdemeanor drug  purchase does not facilitate felony drug distribution. Under federal law, illegal possession of controlled substances for personal use is a misdemeanor. The Court said it was clear that Congress meant to treat purchases of drugs for personal use more leniently than felony distribution, and only intended those who facilitate a felony to be subject to this charge.Virginia, where you are from,  does not have a comparable offense. However, depending on the circumstances, texting someone  about engaging in an illegal drug transaction could be considered aiding and abetting the commission of a drug offense or  attempting or conspiring to commit a drug offense. If you are charged with a crime resulting from your text message, you should consult an experienced criminal defense attorney in your area who can advise you as to a potential challenge to  the validity of the means  by which your message was obtained, and other potential defenses. Jeralyn Merritt, Ask a Lawyer Panelist since 1998 ... Read More

You do not need to seek him out.  The main thing you need to do is to show up for all the court hearings, and file all the required petitions to extend the Order.  If he does not show up - the judge will proceed in his absence.   This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

Since he is still incarcerated he still has the right to file a Habeas Corpus petition.   The requirements can be found here:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-327.11.      The pro-se form can be found here under the "Appendix of Forms":  http://www.courts.state.va.us/courts/scv/rulesofcourt.pdf  This motion can only be filed for very limited reasons.   He can also petition for delayed appeal in either the Court of Appeals:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-321.1.    Or the Supreme Court:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-321.2 This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

If you sincerely have no knowledge, then you are not sharing in their criminal intent.  However, if you pack their bags for them and buy the plane ticket to Zaire - then you might have a problem. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

Unfortunately it is very tough to tell.  What kind of sentence you will receive is dependent on a large number of factors.  You should know that the maximum penalty is: For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

The store is not required to allow him the opportunity to pay for the item.  The law says that the slightest asportation (movement) of an item can be sufficient to constitute at least an attempted theft.  From their perspective, he picked up an item, concealed it along with paid items, and left without paying.  He can certainly take the matter to trial and present his side of the story.  If there is a witness that was with him, that would be helpful.  You might consider consulting an attorney to help with preparing the case. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

It depends on what kind of traffic ticket.  If it was a misdemeanor traffic offfense, that could potentially violate it.  That is because a traffic misdemeanor is technically also a criminal offense.  If it is a traffic infraction, that is generally not treated as a serious enough violation. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

Please understand that addressing your situation will be a multi-step process.  Based on the limited information you have provided, it would appear that you are eligible to take the first step, which is petitioning the Governor of Virginia for a Restoration of Rights.  We would of course need to see your conviction and sentencing order, as well as documentation of your probation history to confirm eligibility.  Assuming you are eligible, we can assist you by filing a petition with the Governor, which he and his office will take anywhere from four to twelve months to review and decide upon.  If the petition is successful, you will regain all of the rights you lost when you when convicted (right to vote, right to sit on a jury, right to hold elected office, right to serve as a notary public, etc.) EXCEPT that you will still be ineligible to buy, sell, possess or own firearms.  If the petition is successful, you will then be eligible to seek a Pardon from the Governor for your crime.  The pardon does not erase or expunge the conviction from your record; rather, the pardon is simply executive forgiveness for your criminal offense against Virginia.  The pardon process typically takes just as long, if not longer, than the Restoration of Rights process (i.e. 4-12 months).  The issuance of the pardon will enable you to restore your firearm rights by then petitioning the court in which you were originally convicted of embezzlement.  You can expect the circuit court process to take a similar timeframe as well. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. ... Read More

I would need to review the citation to be certain, but it sounds like this is a criminal summons and that is the topic area you selected, as well.  Therefore, it seems you need a criminal defense attorney. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. ... Read More

Whether or not you have a right to sue for false arrest or false imprisonment depends on a variety of factors which are fully elaborated on in your question.  Essentially, false arrest or false imprisonment is a kind of kidnapping.  It happens when police, store detectives, private security or loss prevention personnel act in response to what is perceived as criminal activity when in fact that person has no good faith basis for doing so.  For example, a plainclothed store detective concludes that a young male, based solely on his manner of clothing, is a gang member and is shoplifting.  The young man has not engaged in any suspicious behavior and comes under the watchful eye of the detective solely based on how he is dressed.  If the detective were to then seize that person, prevent him from leaving and/or search him for concealed merchandise, that would certainly amount to false imprisonment.  In your case, the manager observed you on camera "picking up makeup and walking around the corner of a aisle and not having it in my hand on the next aisle's camera."  It is not unreasonable for the manager to suspect, at that point, that you have concealed the merchandise.  You further state that you would not show him the contents of your purse until police arrived.  Had you done so prior to the arrival of the police, he would have had no good faith basis to continue to hold you.  However, a reasonable person could conclude that your refusal to open your purse for inspection was because you were in fact concealing merchandise.  Although it turned out that you were not in fact shoplifting or concealing merchandise, the actions of the manager seem reasonable in light of the facts you describe, and unless you can provide other details relevant to the analysis, I do not see a basis for suit against the store or its personnel. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. ... Read More

I am surprised that you were eligible for the drug court treatment program, and that your lawyer recommended it to you.  Even though you are not a drug dealer, it is very easy for a person in possession of prescription and other drugs to be charged with distribution.  Generally speaking, those charged with distribution are excluded from the drug court programs as the programs are designed to help users combat their own addiction and substance abuse.  In addition, most drug court programs involve a screening process where the potential participant is evaluated for substance problems and eligibility for the program.  Broadly speaking, schedule III offenses are not punished harshly as 1st offenses, and I note you indicate you might have been eligible for probation with no incarceration on a straight up conviction.  In all likelihood, you cannot appeal your case, but we may be able to modify your sentence by filing a motion with the court.  We would ask that you be removed from the program and sentenced accordingly. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. ... Read More

It is unfortunate that you were told by someone (a probation officer, a lawyer, etc.) that once your probation ended, your obligation to register as a sex offender would also end.  This is simply not correct.  In fact, failing to register can be treated as a violation of good behavior requirements and may result in the imposition of some or all any suspended jail/prison time previously imposed in your case.  Moreover, failing to register is also punishable as misdemeanor, and a second or subsequent offense is a felony and in our experience is almost a guaranteed trip to prison.  A person who is required to register can petition the court to be removed from the registry.  Depending on the nature of your conviction(s), you must wait 10, 15 or 25 years from the date of conviction (or date of release from incarceration, whichever is later) before you are eligible to file.  All court ordered treatment, counseling, and restitution must also be completed before you can file a petition.  If the petition is denied, you must wait 24 months from the date of denial before filing a new petition. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. ... Read More

  In most cases, when a person is arrested, that person is entitled to be released pending trial with certain conditions that will ensure the person comes to all court appearances.  This is fair and sensible, since our system assumes a person is innocent of all charges until proven guilty.  A bond is a common condition imposed, and it can be revoked at any time.  Most commonly, bond is revoked for failure to comply with the conditions of release or once the person has been found guilty of the underlying charge.  Again, this is fair and sensible.  If the person cannot comply with conditions of release, that person should be held in jail until the conclusion of the case.  Likewise, if the person has plead guilty or been found guilty, he is no longer innocent and should be held until sentence is imposed.  In this situation, your husband had a bond, his bond was revoked for noncompliance, and he has now been found guilty.  If it is likely that a sentencing the court will impose an active jail/prison sentence that is longer than the time he has already served plus the time between now and sentencing, then the court will probably not reinstate his bond.  In other words, if he has already been in jail for three months, has two more months between now and sentencing, and he's looking at twelve months in jail from the court, he won't get bond.  The court is not going to release him for two months just to send him back again.  On the other hand, if it looks like he is facing less time than he has already served, then a bond motion might be successful. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. ... Read More

In short, maybe.  Some parts of what he did were not in violation of your rights, but other parts seem strange.  Either way, your parents would have to act on your behalf because you are a minor.  You might have a civil action and as such need to consult a civil litigation attorney.  They might consider filing an "Internal Affairs" complaint as well. This is not legal advice, nor is any attorney-client relationship formed.  This post does not represent the views of the parent company LexisNexis.... Read More

In Virginia, only matters for which a person is found "not guilty" or are "otherwise dismissed" can be expunged.  Please see Virginia Code section 19.2-392.2.  If you were found guilty of the misdemeanor, generally speaking you cannot have the matter expunged. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

Not necessarily.  If the matter is not related, and the knowledge that the former public defender has does not unduly benefit the Commonwealth, then there may be no conflict.  This is tricky - you should advise your current defense attorney. This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More

Generally speaking, the defendant does not have the right to demand that the Commonwealth present certain information.  If you believed that the detective and arresting officer would have presented information that would have been beneficial to your case, then you had an obligation to subpoena those witnesses.  If you did not subpoena the witnesses and did not object and ask for a continuance at the very beginning of the trial then most likely the objection would be considered waived.  If this is "after discovered" evidence (you did not know about it before the trial) then you could have a basis for a motion.  This response is general in nature and is not legal advice. No attorney client relationship is formed by it. Further, the response does not represent the opinions or views of LexisNexis or its affiliated companies.... Read More