Virginia Criminal Defense Legal Questions

In Virginia a felony can be expunged if you were found "not guilty" (in other words the case was dismissed) or if the case was disposed of through motion "nolle prosequi" by the Commonwealth's Attorney.  The Code section is 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

Lie detector tests are generally inadmissable as evidence of guilt in court.  However, any statements you make during the process may be admissible.  Anytime you speak to law enforcement in a way that might incriminate you, you have a right to have an attorney present. 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 get access to your criminal record by going to the Virginia State Police with identification and requesting your VCIN/NCIC criminal history.  There may be a fee to receive a copy.  The Virginia State Police are the keepers of the Criminal Records Exchange for 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

In Virginia, when a person is found guilty of a crime as an adult it stays on their record as "guilty".  Any charge that is "nolle prossed" or dismissed as not guilty may be expunged.  Otherwise, it remains.  You may apply for clemency and/or restoration of civil rights 5 years after you are free from all court conditions.  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

UPDATE (information obtained post publish date)"On October 27, Maine U.S. District Court Judge D. Brock Hornby ruled the reductions in the Fair Sentencing Act must be applied to those awaiting sentencing. on and after August 3, 2009. He acknowledged the Savings Clause law that other courts have relied on in rejecting application of the law to those whose conduct occurred before the law went into effect. but he said it "does not command special attention." He believes Congress did not intend for judges to continue to impose the harsher punishment based on the date of the offense." ---------------------------------------- In an effort to reduce the disparity between federal crack and powder cocaine sentences, Congress passed "The Fair Sentencing Act of 2010." The Act reduced penalties for some cocaine base ("crack cocaine") offenses, eliminated the mandatory minimum sentence requirement for simple possession of crack cocaine, and directed the U.S. Sentencing Commission to amend the sentencing guidelines to reflect certain aggravating and mitigating factors in a variety of drug cases. The new law became effective on August 3, 2010, the date it was signed by President Obama. The law is silent as to whether it can be applied to crimes committed before that date. The Department of Justice has taken the position that the law applies only to conduct occurring on or after August 3, 2010. Courts that have considered the issue since August 3 have agreed, ruling that under a law known as the "General Savings Statute," courts must apply the penalties in place at the time the crime was committed, unless a new law is enacted that expressly provides for its retroactive application. These courts have held the law's silence on the issue prevents them from applying the law retroactively. Thus, at this time, the law does not apply to someone already convicted or, like your friend, who was still awaiting trial or sentencing on August 3, 2010. It also would not apply to someone charged in the future with a crime that occurred before August 3, 2010. Also, since your friend received a 25 year sentence, it's possible the amount of crack cocaine involved in his offense exceeded 280 grams. The law didn't reduce statutory penalties for amounts greater than 280 grams. On the other hand, the law directed the Sentencing Commission to formulate new guidelines consistent with the law's new penalty provisions. The Commission has submitted temporary guideline changes, and has until 2011 to enact permanent new guidelines consistent with this law. If the commission's new guidelines lower the sentencing range for the amount of crack cocaine on which your friend's sentence is based, and specify that the change deserves retroactive application, at least for those who were awaiting sentence on August 3, 2010, he may be entitled to seek a sentence reduction in the near future. In addition, the sentencing guidelines are no longer mandatory and courts consider a variety of other factors pertinent to the offender and the offense in determining the appropriate sentence. An attorney experienced in federal post-conviction matters or criminal appeals (assuming your friend filed a timely Notice of Appeal) should be able to review the sentencing documents and transcript of the sentencing hearing in your friend's case and advise him as to whether the judge made legal errors in determining the sentence, such as improperly calculating the guidelines, refusing to consider a departure from the guidelines or a variant sentence outside the guidelines; or gave short shrift to arguments pertaining to his personal history and characteristics or other factors the sentencing statute requires judges to consider. ... Read More

The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel to every person charged with a crime that carries possible jail or prison time. When you are charged with a crime and cannot afford an attorney, the Court will appoint counsel to represent you at no charge (or in some states, for a modest administrative fee.) Most often, this will be the public defender. However, if the public defender's office has a conflict, such as in multi-defendant cases where it represents another defendant, or in jurisdictions without a public defender's office, the court will appoint private counsel to represent you. In addition to paying your lawyer's legal fee (usually at a reduced rate) the court will also pay for necessary expenses. Upon the application of your attorney, the court may approve payment for the services of a private investigator, forensic experts to test or retest evidence, expert witnesses and even discovery duplication expenses. In the event your attorney deems a transcript of a particular pre-trial hearing in your case necessary for trial, he or she can also request the Court to approve payment to the the court reporter, so that your lawyer can obtain it at no cost to you or your lawyer. If you have been convicted and are appealing your conviction, once you have been declared indigent and counsel has been appointed for you in the appeal, the court will approve payment for transcripts of your trial and any pre-trial proceedings requested by your attorney. Similarly, if you have been appointed counsel to litigate post-conviction motions such as a motion for a new trial or motion for reduction of sentence, the court will approve requests for transcripts made by your court-appointed attorney.... Read More

No. Federal law prohibits any person with a state or federal felony conviction from possessing a firearm. The penalties are steep. Only if your rights have been restored under both state and federal law, may you possess a firearm. In Virginia, the ban applies unless: "You have been pardoned or have had your political disabilities removed pursuant to Article V, Section 12 of the Constitution of Virginia, and if the executive order does not place any conditions upon the reinstatement of your right to ship, transport, possess or receive firearms." or "You have been granted permission by the Circuit Court of the jurisdiction in which you reside to possess or carry a firearm (with no restrictions on the type of firearm) and one of the following: you have had all other political rights restored by the Governor, or, you have had your federal disabilities removed by the Bureau of Alcohol, Tobacco and Firearms" or "You have had your political rights restored by the Governor of Virginia or the Governor of the State in which you were convicted and one of the following: the reinstatement of rights included the right to ship, transport, possess or receive firearms, you have had your firearms rights restored by the Virginia Circuit Court in the jurisdiction in which you reside, or you have had your federal disabilities removed by the Bureau of Alcohol, Tobacco and Firearms." Every state has different rules about whether and how you can have your rights restored. Your best bet is to check with a criminal defense lawyer in your jurisdiction to see if you are eligible for the restoration of your right to possess a firearm. ... Read More

Federal courts differ from state courts in making bail determinations. In most state courts, except for murder in the first degree, some amount of bail will be set, even if it's very high. Federal law provides for pretrial detention, which means for some crimes and persons arrested, no bail will be set and the defendant is ordered held in custody until trial. If a defendant is charged with a drug offense that carries a possible penalty of ten years or more, or a crime of violence, a presumption arises that he is both a flight risk and a danger to the community. If the Government seeks pretrial detention, the court will hold a hearing. The defendant is allowed to present evidence to rebut the presumption and show that he or she is neither a flight risk nor a danger to the community. The court must order an accused's pretrial release, with or without conditions, unless it "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and community. Initial appearances in federal court are before a Magistrate Judge. If he or she orders you detained pending trial, you have the right to seek review of his or her decision with the District Court Judge presiding over your case. If the District Court Judge agrees with the Magistrate Judge, you can appeal that decision to the Circuit Court of Appeals for your federal district. There are specific statutes that govern bail and detention in the federal courts, and you should ask your lawyer to explain them to you and assess your chances on review and if need be, appeal. As for options available to the court, home monitoring is one, and placement in a half-way house is another. ... Read More

Yes. Any sexual offense is very serious. If you are convicted, in addition to jail time, you will be required to register as a sex offender, perhaps for life. You should not speak to the police unless your lawyer advises it and is present with you. Anything you say to the detective can, and likely will be used against you. Even though you are under investigation and not charged as yet, a lawyer can be your conduit to the police and the District Attorney's office. Your lawyer can insist they stop contacting you for interviews since you are represented by counsel. He or she can also present information, if you have such, that would be helpful in convincing them a molestation did not occur. The jails are filled with people who thought if they could only tell their side of the story to the police, the police would see it their way. You have a right to remain silent for a reason. Use it. And seek out the best criminal defense attorney you can find in your area to represent you.... Read More

No. The statute of limitations pertains to the period of time within which a person must be charged with an offense. The principal theory behind the statute of limitations is that after a certain period of time, it isn't fair to make someone stand trial because witnesses who could support a defense may have moved or died or their whereabouts may be unknown. Even witnesses who are still around will find their memories of the crime have faded. Also, there needs to be closure at some point. None of these reasons apply to someone who has already been tried and sentenced. Once a person is convicted and sentenced, if he flees, the time he owes the government never goes away. If the feds catch him 30 years from now, he will still have to serve the sentence.... Read More

Possession of any amount of ecstasy is a felony which carries a potential jail sentence. However, most states have programs by which first offenders charged with a small amount of an illegal drug can enter a diversion program whereby you would be placed on probation, and if at the end of the probationary period, you have not committed any other crimes, the offense will not remain on your record. If the prosecution will not offer such a program to you, you might still be eligible for a sentence to probation that does not involve jail. Your best bet is to contact an experienced criminal defense attorney in your county that can advise you of your options and the possible alternatives to jail. He or she can also review the facts of your case and advise you whether you have a defense to the possession charge. If you cannot afford an attorney, you can ask the court to appoint an attorney at no charge to you at your first court appearance.... Read More

A change of venue motion is one that asks to have the trial moved to a different county. The motion usually is made when there has been extensive negative publicity about the case and the defendant fears that a fair and impartial jury will not be able to be seated. In some places, if the change of venue request is granted, the original trial judge stays with the case and travels to the new place of trial. If you believe that the trial judge is not going to give you a fair trial, you might consider a motion to recuse the judge rather than change venue. These motions are not often granted. In order to recuse the judge, you would have to establish that the judge is biased or prejudiced against you. The judge would consider your motion and rule on it. A recusal motions should be made well in advance of trial. It should be in writing and some states require that it be accompanied by a sworn affidavit setting forth the specific reasons for believing the judge is biased or prejudiced. I recommend you consult with your attorney and seek his or her advice on whether such a motion is warranted in your case.... Read More

A felony conviction does not prevent a person from testifying as a witness. Depending on how long ago the conviction occurred, the witness could be confronted with it in front of the jury. This is called "impeachment." In many states, the judge can instruct the jury that they may consider the witness's prior felony conviction in deciding how much credibility to give the witness's testimony. If the witness lies and denies the existence of a prior felony conviction, he or she could be charged with perjury.... Read More

In essence, felony murder means that all persons engaged in a felony are liable for murder if one of them kills a person during the crime. The precise definition and elements of "felony-murder" vary from state to state, but generally, it is a principle of criminal liability which holds someone legally liable for murder if, during the course of committing a serious felony with another person, the death of someone other than one of the participants in the crime is caused. A "serious felony" is one like arson, robbery, burglary, kidnapping, or rape. Most states also apply the felony-murder rule to situations where the death occurs during the immediate flight from the crime. It can also be applied if the perpetrators didn't complete the underlying crime and thus only attempted to commit the crime, if someone dies during the attempt. Some states provide that it is a defense to felony murder if the defendant was unarmed and had no reason to believe that any of his confederates was either armed or intended to engage in any conduct dangerous to life. An example: Two people rob a bank, one sits outside in the getaway car. The actual robber ends up shooting and killing someone in the bank during the robbery or while running away. The driver of the getaway car is liable for murder under the felony-murder rule, even though he had no knowledge his accomplice was going to kill someone and even though he didn't participate in the killing, if he knew his accomplice had a gun which he was intending to flash inside the bank when demanding the money. ... Read More

Usually, the answer is no. Once you have been sentenced for a crime, the issue as to guilt is considered resolved. However, there are "post- conviction remedies" available in certain situations to persons who have been convicted and sentenced for crimes, both on the state and federal level. The laws vary from jurisdiction to jurisdiction, but generally, they permit the Court to set aside a guilty plea if the plea or sentence was imposed in violation of a constitutional right; if the sentence imposed was illegal (as opposed to merely harsh, such as if it exceeded the maximum allowed by law for the crime); if the law under which they were convicted is unconstitutional; if the court didn''t have proper jurisdiction over the person or the offense; or if new evidence of material facts have come to light since the conviction, which could not have been learned of at the time of the plea and sentence, and as a result of these new facts, the conviction and sentence should be set aside in the interest of justice. There are varying but strict time limits for requesting such post-conviction relief, both at the state and federal level. If you think you fall into one of the listed categories, contact a lawyer in your state to advise you specifically of any remedies available to you and the applicable time limit for requesting relief.... Read More