Virginia Criminal Defense Legal Questions

The punishment for Underage Possession is found in the same statute as the charge.  Virginia Code 4.1-305: "C. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor; and upon conviction, (i) such person shall be ordered to pay a mandatory minimum fine of $500 or ordered to perform a mandatory minimum of 50 hours of community service as a condition of probation supervision and (ii) the license to operate a motor vehicle in the Commonwealth of any such person age 18 or older shall be suspended for a period of not less than six months and not more than one year; the license to operate a motor vehicle in the Commonwealth of any juvenile shall be handled in accordance with the provisions of § 16.1-278.9. The court, in its discretion and upon a demonstration of hardship, may authorize an adult convicted of a violation of this section the use of a restricted permit to operate a motor vehicle in accordance with the provisions of subsection E of § 18.2-271.1 or when referred to a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1. During the period of license suspension, the court may require an adult who is issued a restricted permit under the provisions of this subsection to be (a) monitored by an alcohol safety action program, or (b) supervised by a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, if one has been established for the locality. The alcohol safety action program or local community-based probation services agency shall report to the court any violation of the terms of the restricted permit, the required alcohol safety action program monitoring or local community-based probation services and any condition related thereto or any failure to remain alcohol-free during the suspension period. " That being said, some jurisdictions have a first offender type disposition. 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

Being identified in handcuffs is not necessarily in and of itself prejudicial.  It is certainly one factor that should be considered.  If the victim otherwise knew the offender, the handcuffs may be irrelevant.  There is a legal test set out by case law that can help a judge assess whether that pre-trial identification should be thrown out as tainted.  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 these charges are more than 10 (or maybe 30) days past their court date unfortunately the answer is no.  A person can only have charges expunged for which they are found not guilty, are nolle prossed, or are otherwise dismissed.  If a person is found guilty the offenses cannot be expunged. Please see: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-392.2 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

Driving on a Suspended License is a Class 1 misdemeanor, which means that it carries up to 12 months in jail and up to a $2500 fine.  What will really determine his punishment is how many priors he has and why his license is suspended.  As for the plates, there are a couple different charges that could be taken out for that offense, so I cannot adequately answer the question without knowing the exact offense he is charged with. 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

Your question is unclear whether the matter has already been appealed or if it is to be heard on the probation violation itself.  If the matter has already been appealed, the next step is the filing of the appeal notice, filing of transcripts, and then the drafting of a brief to the appropriate appellate court.  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

There are a lot of collateral consequences to a Possession of Marijuana charge in Virginia - a record, suspension of driver's license, possible jail sentence, fines..... it is really important to know all the different sentencing options.  There is also a first offenders statute.  But there are things to think about in choosing to do that as well.  An attorney can advise you to the positives and negatives to each option.  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 Code section that governs the rules for convicted felons is:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2.  Your facts did not make clear if they charged you for something that happened five years ago or something new that happened.  Unfortunately, ignorance of the law is not a defense.  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 terms of bond are completely up to the judge.  The judge decides whether a person is a flight risk or a danger to society as the criteria.  There are also certain charges that carry a presumption against bond.  If a person is charged with an offense that carries a presumption, it is much harder to prove eligibility for bond.  The Code Section is: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-120.  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 Code Section for Assault and Battery is: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-57 .  Generally speaking a Battery is any offensive touching or touching done in anger.  Whether the charge can be proved to be a battery or not, is another issue.  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 Code section that governs expungment is 19.2-392.2.  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-392.2 .  While the Code reads that any matter that is ultimately dismissed should allow for an expungment, case law holds differently.  There are cases that say, in essence, that if a charge is taken under advisement where guilt is essentially admitted, the charges may not be expunged.  Whether your charges can be expunged is going to be very, very fact specific and order specific.  The charge for which you were found guilty may not be 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

You need to either hire an attorney who handles expungements and is familiar with the process, or you can get a copy of the petition from the Circuit Court website and try to file yourself.  It can be a contested process with the Commonwealth as the opposing party.  The statutory authority is found here:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-392.2 The process involves, at a minimum, 4 steps or stages as well as filing fees.  If you do not follow them exactly the judge can reject your petition.  If, however, you are eligible and follow the process correctly, then it is a very valuable tool  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 would probably be tough to get a criminal charge taken out and proved - the only one I can think of is: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-152.7C1.  or http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-417.  There would certainly be civil causes of action that the person could file.   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

In Virginia, if you have a matter expunged under the state law, what the court order effectively does is directs the Virginia State Police and the Clerk of Court to destroy the records of the event.  This includes removing them from electronic databases.  The question you really need answered is whether the federal background search is pulling from the state record.  If they pull from the state record - there shouldn't be one there to pull once the expungement went through.  It is all linked through your fingerprints.  Just in case, you should consider getting a copy of the expungement order from the court granting it. 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

You didn't say whether you were convicted.  Under Virginia law if you are found guilty of an offense, you cannot have that matter expunged.  Please see: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-392.2.  You can apply for a pardon if eligible:  http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/clemency.cfm.  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 post-release supervision is something that can be imposed by the judge at any time where there is not a suspended sentence and "regular" probation imposed.  Please see: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-295.2  You can't decide you are "sick of it" and just ask to quit.  What you need to know is whether the judge imposed suspended post-release time as well.  That will tell you what your liability is if you violation the post-release.... Read More

Possession of Marijuana, first offense, has the option of a "first offenders" program.  That is under Code section 18.2-251.  If you participate in that program, the status of your offense is "under advisement".  That may still violate your probation and/or good behavior in the misdemeanor animal cruelty.  Whether a show cause or capias issues for that violation is up to the prosecutor and the judge.  Whether you receive jail time for that is also up to the judge.  There is no hard and fast rule about the amount of time the judge can "give back".... Read More

Yes, it is legal in Virginia to record telephone conversations as long as one party in the conversation is doing the recording - hence Virginia is considered a "one contact " state. To tape conversations automatically without participating is "wiretapping", a felony, unless it involves the simple process of leaving a message, where the person speaking is aware their conversation or message is being recorded.... Read More

Virginia does not automatically expunge or seal records.  You would have had to have a court hearing for records of your convictions to be expunged ("erased"), and only things for which you are found "not guilty" or the charge is "nolle prossed" can be expunged.  Otherwise, anything for which you are convicted in Virginia stays on your criminal record.  If you want to see what your record contains, you can obtain your record from the State Police.  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

Assuming you are in Virginia, you can go to the Court Services Unit of the jurisdiction where this happened (For example if this happened in City of Richmond - go to the Court Services Unit that services City of Richmond).  They can take a complaint and issue a petition against the juvenile who committed the assault.  The Court Services Unit of a City or County is the equivalent of a magistrate for juveniles.  They are the ones that decide whether a juvenile will be charged with a crime.  If the attack was committed by a child who was 18 at the time, you need to go to the adult magistrate.  Make sure to take documentation of the injuries, dates, times, as much information about the offender as you know, and witnesses' information with you.  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

You can file a civil suit for malicious prosecution in Virginia.  There is no criminal charge for malicious prosecution.  Whether she can be sued will be determined by a number of factors that can be assessed by a civil 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

You can certainly file suit to recoup legal fees for fighting to get your license straight, however it is unlikely that you will win.  You need to speak to a civil litigation attorney about this. 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

Under Virginia Code 19.2-392.2 the only things that may be expunged are charges for which a person is acquitted, when a motion nolle prosequi is made, or the charge is "otherwise dismissed" in a way that does not indicate the evidence was sufficient to find the person guilty.  So if you were convicted (found guilty) then the charge cannot be expunged in Virginia.  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

A person can be violated on probation if they remain on unsupervised probation after supervised probation ends.  In other words, a person may be "released" from supervised, but still be on unsupervised probation which generally consists of record checks.  There may be another way that a person could be violated that is specific to that person's court order. 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