Virginia Criminal Defense Legal Questions

Yes — you should absolutely seek legal representation right away. Being accused of stealing credit card information is a serious matter that could lead to criminal charges, even if you are completely innocent. Do not try to explain yourself to your employer, investigators, or law enforcement without an attorney present, as anything you say could be misinterpreted or used against you later. A criminal defense attorney can contact your employer or the police on your behalf, find out whether formal charges have been filed, and help protect your rights during any investigation. If this allegation involves your job in health care, it could also affect your professional license, so an attorney can advise you on that as well. In the meantime, gather any documents, timecards, or communications that may show your innocence or access limits, but don’t share them until you’ve spoken with your lawyer. The most important step right now is to hire a defense lawyer or request a public defender if you can’t afford one.... Read More

I practice in Minnesota.  A good criminal defense attorney in your neck of the woods is the right person to get definitive advice.  You are correct.  A man v. wife case becomes a Man v. State of Virginia once the cops are called.  I don't know if VA has a continuance without prosecution disposition or a stay of adjudication disposition.  If they don't, the only thing you can do to keep it off your record is to go to trial and beat the case.  I really think the best thing you can do is find a local attorney.  And don't let price be your sole issue.  Lawyers are like wine-its hard to find a good one that isn't a bit pricey.  Good luck.... Read More

The law changed July 1 to allow for a "First Offender" program for first offense theft.  The prosecutor has to agree to it.  So there is a chance, depending on your jurisdiction and the prosecutor assigned to the case.  ** This is not intended to constitute legal advice, nor does it create an attorney-client relationship... Read More

The short answer is probably no, she cannot refuse to testify.  Unless she has some privilege, such as that she is being asked to testify against a spouse, a patient, or she is a lawyer testifying against a client, or she is being asked to incriminate herself in which case she could invoke the 5th Amendment.  Otherwise, if she is subpoenaed to court she is required to show up and to answer questions under oath or risk being held in contempt of court.  If she thinks she has some privilege or the subpoena as issued in bad faith, such as that she has no knowledge of the case at all, she could move to quash the subpoena.... Read More

Unfortunately under current Virginia law, any charge or offense where you are found guilty cannot be expunged from your criminal record.  Only matters that are dismissed, nolle prossed, or otherwise disposed of in a way where guilt is not determined may be expunged.  You may be eligible for clemency through the Secretary of the Commonwealth.   ** This post does not create an attorney client relationship and is not designed to constitute legal advice.... Read More

You have three separate courses of action. You can meet with police about filing a criminal action or you can file a small claims suit, or both.  I would not anticipate that if you file a criminal action that he would finish the job. In fact, he would probably either be held in jail or be ordered to have no contact with you. So my opinion is that a criminal action isn't the way to compel him to finish. Also, you should be aware that you may not be permitted to withdraw the criminal charge once you take it out. That decision will be up to the Commonwealth's attorney's office.  I hope that helps.... Read More

Unfortunately without a little more information it is difficult to answer that question.  The broad answer is that when someone is arrested, the magistrate assesses whether they are a candidate for bond/bail.  That is dependent on the charge, their record, and the law.  If the magistrate denies bail then an attorney representing them can file for a bond hearing in the appropriate court.  ... Read More

If I understand the situation correctly, you were most likely violated for getting new convictions. Also on known as a "condition 1" violation, aka Failure to Be of Good Behavior. A condition 1 violation does not use the sentencing guidelines so the Judge has full discretion in deciding how much time to give you back.  ... Read More

It depends. There is more than one section for sodomy. The main one is this:  https://law.lis.virginia.gov/vacode/title18.2/chapter4/section18.2-67.1/ This is another possibility:  https://law.lis.virginia.gov/vacode/title18.2/chapter4/section18.2-67.2/ Assault is a class 1 misdemeanor assuming it is a simple assault.  ... Read More

If it is a misdemeanor charge then in all likelihood they probably will not even want to interview you about it. They will most likely just want to serve you with the paperwork and set an arraignment date. But you should keep in mind that if they do wish to interview you about it, that you are required under the law to assert your right against self-incrimination. So that means that you have to tell them that you do not wish to say anything that might incriminate you. Typically an attorney is not an appointed until you go to your arraignment date. The magistrate typically will not allow an attorney to go with you in the "booking" area. At your arraignment date the judge will consider your financial status and determine whether you're eligible for court-appointed counsel.... Read More

While your charge is technically not eligible for expungment under the law, I have seen judges allow it in rare cases such as yours.  The Virginia Code allows for expungment of arrest records and charges, not actual convictions.  It is intended for those who were actually innocent.  Since you were convicted you are assumed to not be innocent.  Also, while juvenile records are expunged automatically after 5 years, unfortunately since you were over 18 this is part of your permanent record.  Because of the sympathetic facts of your situation if you get a really nice judge on a good day they may take some pity on you and grant the expungment, even though the code does not authorize them to do that.  If you get a by-the-book judge who feels constrained by the rule of law then they will probably deny it on the grounds that they don't have the authority to grant it, especially if you get a prosecutor who objects to it.... Read More

You are obviously going to want to hire a lawyer to represent you in this, since there is so much at stake.  Your attorney may be able to work something out with the prosecutor so that you can keep your record clean.  This is such a minor charge that it seems likely your lawyer will be able to resolve it.  If not, there may be grounds to fight it at trial.   ... Read More

If your son has been sentenced, then that would mean that there has been a trial and he has been found guilty based on the evidence presented.  If there was the possibility of jail time, your son should have been appointed an attorney, or you could have hired your own attorney, who would have been present at the trial.  I suggest you speak with that attorney about what you might do at this point, and what sort of evidence you have that it was the cousin who actually did the crime.  There are some time limits on what can be done so I would suggest you speak with that attorney as soon as you can.... Read More

It depends on how you want to proceed with the case. If you want to proceed criminally, which I assume you do since you went to the magistrate, the statute of limitations is one year pursuant to VA Code section 19.2-8 since assault and battery in violation of VA code section 18.2-57 is a misdemeanor. The code you cited is for a civil claim.... Read More

If you are charged under 46.2-391 there is a subsection that may give the court some discretion in your case. That subsection is: "b. However, in cases wherein such operation is necessitated in situations of apparent extreme emergency that require such operation to save life or limb, the sentence, or any part thereof, may be suspended."  Based on your facts, it is unlikely that you were in an "extreme emergency." the car may have been pulled off the road and a cab or tow truck called. Further, you do not indicate that anyone was seriously in peril or injured.  When the court hears your case, it will weigh the facts of your situation against the elements laid out in the statute.     NOTE: This material is for information only. It does not constitute legal advise nor create an attorney-client relationship. Always consult and retain a competent Attorney when facing legal opportunities and challenges.... Read More

This is a serious charge and you need a lawyer to represent you in court to make sure your rights are protected.  This is not something that can be easily advised on-line.  If you cannot afford a lawyer, the court will appoint one for you. 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. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

Hi There, In Virginia, an expungement can only be obtained if: you are found not guilty by the court (acquittal or dismissal); the charges are withdrawn (nolle prosequi) by the Court on a motion by the Commonwealth; where an individual’s name is used in error; or the individual obtained an absolute pardon from a Virginia Governor.  Because of your conviction, unfortunately, you cannot seal or expunged criminal record convictions in Virginia; it truly is a record for life.  For more information, I published a Guide on criminal record expungements, pardons and restoration of rights, which may be of limited use to you. The link is: http://www.avvo.com/legal-guides/ugc/what-you-need-to-know-about-criminal-record-expungement-in-virginia. Good luck! Susan... Read More

The Miranda rights only have to be read before a custodial interrogation can take place.  This means he has to both be in custody (such as under arrest or another situation where he is not free to leave) AND they have to be questioning him.  Any admissions he makes during a custodial interrogation where he has NOT been read his Miranda rights first cannot be used against him in court.  Other than that, there is no requirement that he be read his rights.... Read More

Without knowing what your boyfriend was charged with I cannot say what he is facing in terms of punishment.  Domestic assault and battery is usually a Class 1 misdemeanor, which is punishable by up to a year in jail, a $2,500 fine, or both.  But assault and battery can also be charged as a felony.  Since this is not his first offense and since he is already on probation, he could be looking at serving some jail time.  Also, if he is has a suspended sentence hanging over him from the prior charge, that could be imposed on him.  It is obviously imperative that he obtain a lawyer to represent him in court, to ensure that his rights are protected and that he gets the best deal possible.  He may have to attend an anger management course, if he has not already.  If he can't afford a lawyer, one will be appointed for him. As for you, you are required to comply with the subpoena and show up for court, or you could be charged with failure to appear.  If you are called to testify, you are required to truthfully answer any questions they ask you, but you do not have to embellish beyond answering the bare minimum of what they ask.  Because you are not married to him, you cannot claim spousal immunity from testifying, as you could if you were his wife.  Just like he cannot compelled to testify against himself, spouses cannot be compelled to testify against each other.  But as unrelated person, you can made to testify. 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. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

There is no waiting period.  As long as the charge was nolle prossed or you were otherwise found not guilty and did not plead guilty, then you can expunge the record at any time.  Some people choose to wait as year after a nolle pros because that's how long the Commonwealth has to bring back the charges, but there is no requirement to wait.  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. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

It is not clear to me whether you voluntarily complied with the officer's request to empty your pockets or whether you objected and he searched you against your will.  If you complied, there is no issue.  In either case, even if you were illegally searched, the remedy for that is that any evidence they find the incriminates you cannot be used in a criminal prosecution against you.  It does give you some kind of legal claim against the police. 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. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More