Your Virginia Criminal Law Questions Answered
After being charged with a crime in Virginia, most people have many concerns. What do I do now? Do I have any options? Do I need a lawyer? How do I find the right lawyer? Our experienced legal team offers their take on these questions and many more to help you understand more about your rights and options under the law. Don’t see your question here? Don’t hesitate to reach out and ask. Call our Fairfax office at (703) 352-0100, or fill out our online contact form today.
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What’s The Difference Between Reasonable Suspicion and Probable Cause?
“Reasonable articulable suspicion” (RAS) and “probable cause” (PC) are two of the most important concepts in criminal work. However, reading those two phrases does not provide much information about what they mean, how they work, or when they apply. However, having a clear understanding of both concepts and when they apply is essential in defending criminal charges. Below is a discussion of RAS and PC, but it is far from every detail you would need to consider when applying these concepts in a case.
RAS and PC have been interpreted many times across many jurisdictions and judges, and they are often phrased in similar, but different, ways. RAS is commonly understood as objective, specific information known by a police officer or other governmental law enforcement agent that leads them to suspect a person has, or is about to, commit a crime. RAS is the easiest burden to establish in the law. It takes less information to demonstrate an officer had RAS than to show PC, proof by the preponderance of the evidence, or proof beyond a reasonable doubt.
PC is a close relative of RAS. However, PC is viewed as a slightly higher hurdle to clear, though it is still below proof beyond a reasonable doubt or proof by the preponderance of the evidence. PC is commonly understood as facts and circumstances known to a police officer that would lead a “prudent man” to believe that a particular suspect has committed or was committing an offense or has evidence of an offense. When officers’ actions are challenged because they either lack PC or RAS, courts must look to the totality of the circumstances known to the officer to determine whether that officer’s actions were proper.
The definitions of reasonable articulable suspicion and probable cause are very similar and difficult to distinguish. However, the circumstances in which RAS and PC apply help courts impose the proper burden on the investigating officer when RAS or PC for an officer’s actions are challenged. Thus, it is extremely important to know which concept applies to which situations.
Reasonable Articulable Suspicion: How it Works
Reasonable articulable suspicion is what an officer needs to perform an “investigatory” stop. An investigatory stop can include pulling over a car, stopping a person on foot to engage in a conversation, and conducting a pat down or frisk for weapons. The most common example of reasonable articulable suspicion is when an officer pulls over a car for a traffic offense.
For example, if a suspect is pulled over for having a taillight out, that would be RAS for purposes of conducting the stop. Once the stop is justified, if the officer smells marijuana in the car, or if the individual had signs of intoxication, then the officer can extend the stop to further investigate.
Another common scenario is the stop and frisk. A police officer may see a suspect standing on a street corner having numerous brief interactions with apparent passersby. While watching the suspect, the officer may observe him shifting an object underneath his clothes near his beltline. In this scenario, the officer may have sufficient RAS to stop the suspect from walking away and even to frisk him. Whether the officer is entitled to remove things from the suspect’s person is a different question.
Probable Cause: How it Works
Probable cause on the other hand, applies to arresting an individual for a crime, searching them or their vehicle, and requesting a warrant to search their home or other tangible property (like a cell phone). One of the most common examples of PC for a search is the vehicle stop scenario. If, for example, an officer pulls a suspect over for speeding or some other minor traffic offense but smells marijuana emanating from the vehicle, they may have PC to search the vehicle. Thus, whether the suspect agrees to a search or not, their car may be thoroughly searched to find the suspected evidence.
The foregoing examples are just a few common scenarios in which PC and RAS play a role. There are numerous other scenarios in which these legal concepts play a role. It is important to know the concepts of PC and RAS and how they are applied by courts because a suspect can suppress certain aspects of the government’s case when an officer does not have the required level of information.
Assume that a suspect is pulled over for a taillight that has gone out. If during the stop the officer does not smell marijuana, but suspects there is marijuana in the car because he has pulled this particular suspect over before and found marijuana on him, the subsequent search of the car could be found illegal. Searching a car on the basis of prior conduct alone is usually not enough to support a PC finding, though in some cases that may be possible.
No matter what type of offense you have been charged with, you need to know whether the officer had sufficient PC or RAS to stop you, frisk you, search you or your property, or take other action that leads to finding evidence against you or arresting you. Our experienced criminal defense attorneys routinely evaluate and argue issues related to PC and RAS in a wide variety of cases. Call Greenspun Shapiro today to discuss whether you can challenge the arrest, search, or other conduct of the police, and to find out how raising such a challenge may help your case.
What is a protective order? What are the different types of protective orders?
When referencing restraining orders or court orders prohibiting contact between individuals, you have probably heard the terms “emergency protective order,” “two-year protective order,” and “preliminary protective order” used interchangeably. However, while they are all forms of restraining orders, they each have a different meaning.
Why Do People Get Protective Orders?
Protective orders are necessary and highly beneficial in a lot of abusive relationships, but people will often seek protective orders unnecessarily to gain leverage in domestic disputes. Protective orders are civil matters; therefore, if you are served with a protective order it is not a criminal charge and you will not have a criminal record. However, protective orders often go hand-in-hand with criminal matters. Regardless of the reason, it is important you seek counsel if you need a protective order or have been served with one.
Where Are Protective Order Hearings Held?
Hearings will be held in the Juvenile and Domestic Relations District Court if the alleged abuse is committed against a family or household member; otherwise, the hearing will be held in the General District Court.
What Are The Different Types of Protective Orders?
1. Emergency Protective Order
An emergency protective order pursuant to Virginia Code § 16.1-253.4 is typically issued by a magistrate or judge upon the request of a law enforcement officer who issued a warrant for domestic assault and battery. In other words, if someone is arrested for domestic assault, an emergency protective order will be issued to protect the victim. These protective orders are short and only last for 72 hours. The purpose of an emergency protective order is to provide the victim a safe window of time to file for a preliminary protective order.
2. Preliminary Protective Order
Preliminary protective orders pursuant to Virginia Code § 16.1-253.1 are the first step toward obtaining a permanent protective order. Preliminary protective orders are issued by a judge if the victim can establish probable cause that he or she was recently abused or is in reasonable fear of being abused. If abuse has been established, the judge will grant a preliminary protective order, which lasts for 15 days. Because the respondent, or person against which the preliminary protective order is filed, has the right to have his or her side heard, a full hearing on the matter is set within those 15 days. A judge will hear the evidence and then determine whether or not to grant a permanent protective order.
3. Two-Year Protective Order
A two-year protective order may be issued pursuant to Virginia Code § 19.2-152.1. While many people refer to this as a “permanent” protective order, it is not permanent because it can only be issued for a maximum of two years in Virginia. To grant the two-year protective order, a judge must find by a preponderance of the evidence that the victim has suffered an act of family abuse (Virginia Code § 16.1-228) or an act of violence, force or threat (Virginia Code § 19.2-152.7:1), placing him or her in fear.
What Kind of Protection or Relief Can I Get with a Protective Order?
Virginia Code § 16.1-279.1 provides the remedies and relief the court can grant with the issuance of a two-year protective order. This can range from exclusive use and possession of a residence and/or car, to temporary visitation, custody and/or child support related to couples’ children.
What is a Protective Order Violation?
Violation of a protective order can have serious consequences such as mandatory jail time and misdemeanor or felony convictions (Virginia Code § 16.1-253.2). In other words, although the issuance of a protective order does not mean you have a criminal record, if you violate the order, you will be charged criminally. You can violate a protective order simply by sending a text message or email, if the order requires absolutely no contact. It is possible to fashion a protective order to allow for some communication if necessary (such as in cases of parents with shared custody of children); however, the court’s order must be strictly followed.
Can I Extend the Protective Order for More Than Two Years?
Virginia Code § 19.2-152.10:B allows a protective order to be extended prior to the expiration of the two years if the court finds the victim needs further protection.
Each order provides a source of safety and protection to someone who has been abused; however, it is important to consult with an experienced attorney at Greenspun Shapiro if you would like to petition for a protective order or have been served with a protective order.
Firearm Rights: When and How They May Be Lost and Restored
While the Second Amendment to the United States Constitution gives individuals the right to bear arms, the states have wide discretion in regulating who can own, use, or otherwise handle firearms, the scope of such privileges, and how to regain those privileges if they have been lost. One of the most common ways to lose your firearm privileges is to be convicted of a felony. This article discusses what issues arise concerning firearm possession, use, and handling after being convicted of a state-level felony. However, there are other ways that an individual who is not convicted of a felony may lose his right to own, possess, use, or otherwise handle firearms in Virginia.
The main provisions disqualifying individuals in Virginia from gun possession, use, or handling are concentrated in Code §§ 18.2-308.1 through 18.2-311. It may surprise you to find out that you do not even have to be convicted of a crime to lose your right to possess a firearm. For example, Code § 18.2-308.1:1 through § 18.2-308.1:3 all deal with situations involving mental health issues. If a person is acquitted of a crime by reason of insanity at the time the offense was committed, they cannot own a firearm. Likewise, if someone was involuntarily committed or declared incompetent, they cannot possess, use, or otherwise handle a firearm. A violation of any of these provisions can be punished as a class 1 misdemeanor.
If you have lost the ability to possess a firearm for a reason concerning your mental competence, you can seek to regain those rights. A person who falls into this situation must seek reinstatement from the General District Court for the jurisdiction in which they live. Or, if the person is not Virginia residents, in the General District Court for the jurisdiction that last heard a matter concerning the proceedings that led to disqualification. The person seeking reinstatement of their rights must show to the Court that they “will not be likely to act in a manner dangerous to public safety and that the [reinstatement of rights] would not be contrary to the public interest.” Code § 18.2-308.1:1. In deciding whether restoration is appropriate, the Court must consider the individual’s criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence.
Another way an individual may lose the right to possess, use, or otherwise handle a firearm is by having a protective order in place. Protective orders, which are civil cases, have the ancillary consequence of depriving individuals the right to possess, use, purchase, or otherwise handle firearms. Violating this law can lead to a class 1 misdemeanor conviction. There is also no way to restore the right to possess a firearm while a protective order is in place. However, upon expiration of the protective order, the right to possess, use, or otherwise handle firearms is automatically restored.
In Virginia, a person who is not legally present in the United States and is not a citizen also cannot possess, use, or otherwise handle a firearm. If a person who is not here legally is in possession of a firearm, they can be convicted of a class 6 felony. This will have additional negative consequences for the person.
A third and less commonly known way to have one’s firearm rights limited is after being convicted of two or more misdemeanors within 36 months. For this law to disqualify an individual, the two misdemeanor convictions must be drug-related. Even if a person falls within the provisions of this statute, they are only ineligible to “purchase or transport a handgun.” There is no limitation on using or continuing to own handguns that were previously obtained by the individual. Additionally, this statute only puts a prohibition on handguns, but not rifles, shotguns, or other types of guns. Moreover, five years after the last conviction, this restriction is automatically removed.
If you need clarification on whether you can possess, use, or otherwise handle a firearm, we are here to help. If you need help restoring your rights because they were lost or restricted because of one of the circumstances above, we can help you with that too. Give us a call to find out what can be done to preserve your constitutional rights.
I’ve Been Convicted of a Felony: What Does This Mean for My Gun Rights and What Can Be Done About It?
The most common reason someone could lose their right to possess, use, transport, or do anything else with a firearm is a felony conviction. Virginia Code § 18.2-308.2 sets out the laws regarding firearm possession, use, and handling for convicted felons. Despite having lax gun laws, Virginia imposes stiff punishments on individuals who lose their right to possess, use, or otherwise handle firearms.
Doing a prohibited act as defined by Code § 18.2-308.2 is considered a class 6 felony. If a violator’s last felony conviction was within the last 10 years, he will receive a mandatory minimum prison sentence of two years. If someone violates this section and was previously convicted of a violent felony set out in Code § 17.1-805, then he faces a mandatory jail sentence of five years in prison.
It does not matter if the felony conviction has anything to do with guns or violence. Any type of felony conviction is enough to disqualify a convicted felon from owning, using, or otherwise dealing with firearms. If you lose your rights due to a Virginia or other state-level conviction, however, you may be able to get them back. The information below does not apply to people who have been convicted of federal felonies.
First of all, even if you’re a convicted felon, there are certain circumstances under which you may still be able to possess, use, or otherwise handle a firearm. In Code § 18.2-308.2(B) there are five exceptions to the general rule that one cannot possess, use, or otherwise handle a firearm after being convicted of a felony. Furthermore, in Code § 18.2-308.2(C2), convicted felons who are not convicted of certain violent felonies may possess, use, or otherwise handle antique firearms and black powder as defined in Code § 18.2-308.2:2(G).
If, however, you want to get unrestricted firearm privileges after being convicted of a felony, you must go through several steps. First, you would need to have your civil rights restored by the governor of the state in which you were convicted. Each state has different procedures for civil rights restorations.
Next, if the governor has restored your rights, then you may petition the Circuit Court for the area in which you live, if you live in Virginia, or the Circuit Court that last held proceedings concerning your most recent felony conviction, if you live outside of Virginia. The Circuit Court will then hold a hearing, and you must explain to the court why there is “good cause” to reinstate your ability to possess, use, or otherwise handle firearms. The court has wide discretion in determining whether good cause was shown, but it is not required to consider any specific criteria in reaching this decision. If the court agrees to grant you firearm-related privileges, it can impose various conditions related to gun possession, use, or handling.
If you have been disqualified from gun ownership due to a felony conviction and wish to have those rights restored, contact us to see what can be done in your case.
What are the pros and cons of agreeing to entering into a plea bargain in my criminal case?
The reality is that most criminal cases are resolved through a plea agreement between the prosecutor and the defendant. If you face criminal charges, you will most likely have to decide at some point in your case whether or not to accept a plea agreement. This is a very important decision in your criminal case since a criminal conviction can have long-term consequences. An experienced criminal defense attorney can help you make this important decision.
What Is a Plea Agreement?
A plea agreement is an agreement between the prosecutor and the defendant to resolve the criminal case where the defendant agrees to plead guilty or no contest to a certain crime and the prosecutor agrees to provide the defendant a benefit for doing so. Plea agreements come in many different forms. In some cases, no actual "plea agreement" is reached with the prosecutor, but the prosecutor agrees to recommend a certain sentence to the judge in exchange for the defendant's agreement to plead guilty either to the original charged offense or to a lesser offense. In other cases, the prosecutor may agree to reduce the charged offense to a lesser offense in exchange for the defendant's agreement to plead guilty. There may or many not also be an "agreement" on a specific sentence, or an agreement by the prosecutor to recommend a specific sentence to the court.
In cases where there is no actual "agreement" between the parties regarding sentencing but only a recommendation by the prosecutor of a particular sentence, the court may or may not follow the prosecutor's recommendation. It is important to keep in mind that the judge's decision not to follow a "recommendation" on sentencing following the entry and acceptance of a guilty plea is generally not a basis to withdraw the guilty plea.
On the other hand, when the prosecutor and defendant enter into a plea agreement, the judge must first approve it. There would be a court hearing where the parties present the terms of the plea agreement to the judge. The judge would then question the defendant to be certain that he fully understood the terms of the agreement and voluntarily agreed to it. Then the judge would decide whether or not to approve the plea agreement.
What Are the Pros and Cons of Entering Into a Plea Agreement?
As with any agreement between parties where there is a dispute, a plea bargain involves a compromise. For the prosecutor and the judge, there are clear benefits of resolving a case through a plea bargain, including judicial economy and efficient resolution of their caseloads. In addition, prosecutors may gain the cooperation of the defendant as part of a plea agreement, which may assist their investigation or prosecution of other individuals. Judges have a similar incentive for wanting a criminal case to be settled—reduction of an already congested docket of court cases.
For you as the defendant, the decision whether to accept a plea agreement is more complicated and has more long-term ramifications. Here are some of the benefits of entering into a plea agreement:
- Remove uncertainty. One of the benefits of entering into a plea agreement is removing the uncertainty of the outcome of the case, which may result in you being found guilty of a more serious offense at trial.
- Lesser sentence and charges. A plea agreement may either result in a reduction in the charges against you, or a less severe sentence. This could affect more than just the penalties that could be imposed. For example, if you hold a professional license, you may risk its revocation if you are convicted of a felony. However, if you plead guilty to a misdemeanor offense, you may reduce the risk the losing your license and your job.
- Cost and time. Taking your case to trial can be time consuming, expensive, and very stressful. You must pay your attorney to thoroughly investigate the crime, prepare for trial, and conduct your trial. In addition, you may need to pay expert witness fees for the experts you might need to help prove your innocence. You avoid these costs when you enter into a plea agreement. More importantly, you avoid the stress and anxiety of trial.
There are also disadvantages to entering into a plea agreement. You should consider the disadvantages as well as the benefits when making your decision. Some of these include:
- Innocence. Unfortunately, being completely innocent of committing the offense you are being charged with does not guarantee a not guilty verdict at trial. When you are innocent and feel you must plead guilty to a lesser offense, it can feel unjust and immoral that you are being forced to do this for practical reasons.
- Coercion. You could face strong pressure from the prosecutor, the judge, and possibly your attorney to accept a plea agreement. You may feel unreasonable pressure to enter into the plea agreement that you are not certain is in your best interests. If this is how you feel, you should take a step back, reevaluate your options, and consult with an experienced attorney who will properly advise you on your options and the best path forward for you.
- Lack of investigation. Because police officers, prosecutors, and defense attorneys know most cases are settled through a plea agreement, there may not be sufficient investigation of the crime by the police or even your own attorney. This could result in an important defense that may result in dismissal of the charges against you being overlooked. You need to retain an experienced attorney who understands the importance of conducting a thorough investigation and fighting the charges when doing so is in your best interest.
- Loss of constitutional rights. When you enter into a plea agreement, you give up important constitutional rights, such as the right to have a jury decide your case, the right to plead not guilty and persist in that plea, the right to confront and cross-examine witnesses against you, and the right to testify in your own defense or to remain silent.
- Sentence. By entering into a plea agreement, you would be pleading guilty or no contest to some offense that will result in the imposition of a sentence of some sort, even if it is probation or the payment of fines.
- Criminal record. If you plead guilty to any charge, even a misdemeanor, you will have a permanent criminal record that may affect your ability to obtain employment, a loan, security clearance, and more.
If you have been charged with a crime, let our experienced criminal defense attorneys investigate the charges against you, build a strong defense, and help you decide whether a plea agreement is in your best interests. To schedule your free case evaluation, call our office or fill out our convenient online form today.
Will I go to jail if I am convicted of a crime in Virginia?
If you are charged with committing a crime, your main worry is most likely the sentence that you could face and fears about being sentenced to prison or jail. However, the Commonwealth of Virginia has a number of sentencing alternatives to jail in many localities. These may allow you to continue in your employment or offer you drug or alcohol treatment options where appropriate.
What Are Alternative Sentences to Jail Time in Virginia?
Your eligibility for an alternative sentence will depend on many factors, including the crime that you were convicted of, your criminal record, and the specific circumstances of your case. An experienced criminal defense attorney will understand the available options and your eligibility for them. Some alternative sentences could include the following:
- Suspended jail time. A suspension of jail time means that you do not have to serve your prison or jail sentence as long as you comply with the conditions set by the judge. You are placed on probation instead. You are placed on probation instead, which may involve active supervision or simply unsupervised probation. Conditions that are commonly set include not committing any other crimes, paying fines and court costs, completing a substance abuse treatment program, paying restitution to the victim of the crime, and completing community service. If you violate the terms of your probation, you will be required to attend a hearing where the judge could order you to serve some or all of the suspended sentence.
- Jail served on weekends. Some jails permit people to serve their sentences on weekends so that they can remain employed. Each jurisdiction has its own requirements and application processes. Space can be limited. The Fairfax County weekend confinement program requires you to report by 6:00 p.m. on Friday and be released at 8:00 a.m. on Monday. You could be subject to random blood, breath, or urine tests. You must pay a fee of $2.00 per day for the program. If you fail to arrive by 6:00 pm on Friday, you are violating the terms of your sentence, and it could be reported to the judge. Not all defendants are eligible to serve their sentences on the weekend, and your attorney can advise you on whether you may be eligible to do so.
- Work release. You may be eligible for a work release program by which you are released from jail to go to work each day. Like weekend jail programs, each county has its own program and qualification requirements. In Fairfax County, for example, the requirements are having 30 to 180 days remaining on your sentence, having no pending warrants or charges, no violent crimes, not being convicted of sex crimes or crimes involving children, never escaping from custody, and not violating a work program rule. You must live in Virginia, Maryland, or Washington, DC. You may also be required to complete a substance abuse treatment program first.
- House arrest. This is also known as an electronic incarceration program and allows you to remain at home and continue your employment instead of serving your sentence in jail. In Fairfax County, the rules are similar to those of the work release program except for a few additional requirements. You must wear an ankle or other electronic device, pay a portion of the fee for the program, be subject to random home inspections, and live in Virginia. People who have committed certain felonies, such as murder, voluntary manslaughter, and felony sex crimes, are not eligible for the program. You should consult with your attorney regarding whether you may be eligible for home confinement.
- Community service. In some cases, a person may be sentenced to perform community service instead of jail time. The judge usually sets a specific number of community service hours that the person must perform. Additional penalties, such as costs and fines, may be assessed as well.
- Community Labor Force Offender Program (CLFO). People convicted of misdemeanors or traffic violations may be placed in this short-term program in Fairfax County. To avoid jail time, low-risk offenders perform manual labor, such as removing graffiti, cleaning streams and rivers, and participating in other revitalization projects.
- Fines Option Program (FOP). This is another Fairfax County program that allows people to report to a pre-release center on weekend mornings to perform community service that is applied to court costs and fines that they owe. Work that may be assigned includes painting buildings, cleaning up litter, and moving furniture.
If you are charged with a crime, you need the help of an experienced criminal defense attorney who understands the programs that you could be eligible for to avoid jail time if you are convicted or enter into a plea agreement. Call our office today to schedule a free consultation to discuss your situation and learn how our trusted attorneys can help you achieve the best possible outcome.
How will the jury be selected in a criminal case in Virginia?
Cases that cannot be resolved through a plea agreement are set for trial. Trials will be decided either by a judge in a bench trial, or by a jury. If your criminal case will be decided at a jury trial, it is important to understand how a criminal jury trial works so you know what to expect. Here, we discuss how jury selection works in Virginia.
Who Can Be on the Jury?
In order for a person to be eligible to be a juror in Virginia, he or she must meet certain requirements. Jurors must be at least 18 years old. In addition, a juror cannot be a convicted felon; however, if the juror was convicted of a felony, he must have had his voting rights restored and lived in the jurisdiction for at least two years in order to be eligible to serve as a juror.
The jury commissioner for each jurisdiction will create a master jury list of eligible residents who reside in the jurisdiction of the court. This list, often generated from voter registration lists, is sent to the court clerk. Potential jurors are randomly selected from this list.
How Many Jurors Are Selected?
On the day of your trial, a randomly selected panel of potential jurors will be present. In Virginia, the number of jurors picked for trial will depend on whether your case is a felony or misdemeanor. Generally, the following rules apply:
- In a felony case, 20 prospective jurors are called from those in the courtroom, and 12 members will be selected.
- In a misdemeanor case, 13 prospective jurors are called, and the final jury will include 7 jurors.
- One or more alternate jurors may be selected to be on the jury in case a juror becomes too ill to serve or is removed from the jury during the trial for other reasons.
How Does Jury Selection Work?
The process of selecting a jury is called voir dire. During this process the judge, prosecuting attorney, and criminal defense attorney ask the potential jurors, known as the jury panel, questions in order to pick appropriate jurors for the case. Often the judge will begin the process by asking basic questions to determine each individual's competence to serve on the jury and any obvious biases. Some of these questions will focus on the following:
- Whether sitting on the jury would cause the person an undue hardship
- Whether the person is related to the parties by blood or marriage
- Whether the person is being represented by either attorney or their law firms
- Whether the person has any preconceived opinions about the case
- Whether the person has a financial stake in the case
- Whether there is any other reason, such as a medical condition, that would prevent the person from sitting on the jury and making a fair decision
The prosecuting attorney and criminal defense attorney will then have an opportunity to question potential jurors. Often the court will send a questionnaire to the jury pool to complete before the trial date in order to obtain basic information about the jury pool. The attorneys may have reviewed these questionnaires before the trial date. In some cases, attorneys will hire experts to review these questionnaires and assist in jury selection.
The attorneys will question potential jurors more thoroughly than the judge. The prosecutor and the criminal defense attorney will ask questions to determine biases, backgrounds, and pre-existing knowledge of the case. They are looking for characteristics and experiences that could cause a prospective juror to side more favorably with either side.
How Challenging a Juror Works
The attorneys have the right to remove a certain number of prospective jurors from deciding a case. There are two types of challenges:
- Challenges for cause. An attorney can challenge a person’s right to sit on a jury for cause if he or she is not qualified to sit on a jury either because that person does not meet the basic qualifications, is not competent, or is biased and cannot be impartial. Bias can be actual bias if the juror admits in some way that he or she cannot be fair. Implied bias is where the juror has characteristics or prior experiences that make it unlikely that he or she can render an impartial decision. Generally, there is not a limit on for cause challenges.
- Peremptory challenges. A peremptory challenge is used when there is no reason for cause to exclude a juror, but an attorney does not want the person to be seated as a juror. The attorney does not have to give any reason to excuse the juror when using this type of challenge. However, there is a limit to the number of peremptory challenges an attorney can make. Generally, an attorney is only allowed three peremptory challenges, but the precise number could vary depending on whether the case is a misdemeanor, felony, or death penalty case.
When retaining an attorney to represent you in your criminal case, it is critical that you hire an experienced criminal defense attorney who has conducted criminal trials and has a track record of success. If you are facing criminal charges, review our case results to see how we have helped other clients and then call our office to schedule your free consultation.
How is my jail time determined in Virginia?
If you have been convicted of a crime and you are sentenced to prison or jail, one of your major concerns after worry about surviving the ordeal is how much of your sentence you will need to serve. In Virginia, calculating the time that you must serve can be complicated. There are many factors that may affect your release date, and different counties calculate the time served differently. In addition, you may be entitled to time off for good behavior. Here, we discuss some of the basics of how your jail time could be calculated.
Is There Mandatory Prison Time in Virginia?
Some crimes in Virginia carry mandatory minimum prison sentences. This is the jail time that a judge must sentence you to, and he cannot suspend any portion of it. If you are sentenced to a mandatory prison sentence, you are required to serve it in active jail or prison. You are not entitled to have the minimum prison time reduced for good behavior. Common crimes that come with mandatory minimum prison sentences include:
- Second, third, and fourth DUI
- DUI conviction where the BAC was .15 percent or higher
- Third offense of driving on a suspended license
- Assaulting a police officer
How Is Jail Time Calculated for Misdemeanors?
The sheriff’s department is often responsible for calculating jail time for people convicted of misdemeanors. However, if you are sentenced for more than one year in jail, the Virginia Department of Corrections could calculate your time. Under Virginia law, sheriff’s departments must require inmates to serve 50 percent of their sentences unless there is a mandatory minimum sentence. In most Northern Virginia jails, people will only serve 50 percent of their sentence conditional on their good behavior.
How Is Jail Time Calculated for Felonies?
If your felony sentence is for less than a year, your jail or prison time would be calculated by the local sheriff’s department. For a sentence of more than a year, the Virginia Department of Corrections would calculate your time and release date. Under the law, you are required to serve 85 percent of a non-mandatory felony sentence. How much of the 15 percent credit you receive would depend on the policies of the individual jail. Many in Virginia will give an inmate the full 15 percent credit while a few may not give as much credit.
Differences in How Jail Time Is Calculated
Different jails calculate a day or month of jail time differently, making it more difficult for you to be certain their calculations are accurate. For example, in Fairfax County, your time would be calculated using a calendar day. If you were serving jail time in Prince William, your time would be calculated based on a 24-hour day. Here is how these systems work. If you were incarcerated at 4:00 pm, at 12:00 midnight, you would have served the first day of your sentence in Fairfax County. However, in Prince William, you would not have served a full day until 4:00 pm the following day.
Do I Get Credit for Time Served?
In Virginia, you are entitled to credit for any time that you served for the crime you were convicted of while in the jurisdiction. If you were arrested in another jurisdiction, you would not get credit for the time period you were waiting for extradition. In many cases, the credit is calculated automatically. If not, a judge may give the credit for time served if you file a motion requesting that he do so.
What Should You Do If You Believe There Is an Error in Your Jail Time Calculations?
It is important that you understand how your time served in jail or prison is calculated to ensure that you do not spend more time incarcerated than required under your sentence. You also want to get the credit that you are entitled to for good behavior. If you have questions about your jail time or believe an error was made in calculating your time, you need the help of an experienced criminal defense attorney. Call our Fairfax office today to schedule a free consultation to learn how our criminal defense team can assist you.
What are common grounds to suppress evidence in criminal cases?
If you have been charged with committing a crime, you must raise all possible defenses you can and take any other helpful steps to fight the charges against you. You have too much at stake not to. One way to do this is to file a motion to suppress evidence. This can be an extremely useful strategy in your criminal defense. However, you cannot expect to successfully file these motions on your own. You will need the help of an experienced criminal defense attorney.
What Is a Motion to Suppress Evidence?
A motion to suppress evidence asks the judge not to allow certain evidence to be used against you by the prosecutor in your criminal case. In criminal cases, the police and prosecutors are not allowed to use evidence against you that was illegally obtained. This is known as the Exclusionary Rule and ensures that your Fourth Amendment rights against unlawful searches and seizures and other constitutional rights are not violated.
Another helpful doctrine that also can result in the suppression of evidence is the fruit of the poisonous tree doctrine. Under this legal theory, evidence that would be otherwise admissible would be excluded if it was obtained through the violation of your constitutional rights. For example, a suspect may confess to a crime and tell the police where the murder weapon is. However, if the police did not inform him of his Miranda rights when required to or continued to question him after he asked for an attorney, the confession and the murder weapon may be suppressed and not allowed to be used against the suspect.
What Are Common Grounds to File a Motion to Suppress Evidence?
Even if you know you are guilty of the charges, you can file a motion to suppress evidence if you have proper grounds to do so. If the evidence is important enough to the police’s case against you, the charges against you may be dismissed. When the evidence is suppressed, but the case against you continues, you may have significantly weakened the prosecutor’s case, which could result in a favorable outcome down the road. Common grounds to file a motion to suppress include:
- Unlawful search and seizure. The Fourth Amendment protects you against unlawful search and seizure of your property and yourself. The police must have a valid search warrant or arrest warrant or probable cause to believe a crime was committed in order to stop you and search for evidence. If evidence was illegally obtained, it cannot be used against you.
- Failure to give Miranda warnings. When the police take you into custody, they are required to inform you of your Miranda rights. This includes informing you of your right to remain silent, that anything you say can be used against you, and that you have a right to an attorney. If the police fail to give you this warning, any statements or confession you made or other evidence the police obtained due to this failure could be suppressed.
- Chain of custody errors. Chain of custody refers to the proper procedures the police must use in handling pieces of evidence from the moment it is collected until it is used at trial. For example, if evidence is mislabeled or mixed with evidence in another case, it could lose its credibility and not be admissible in your criminal court hearings.
There are other reasons that your attorney may decide to file a motion to suppress evidence. Other common grounds for these motions include:
- Field sobriety tests were not administered according to the National Highway Traffic Safety Administration (NHTSA) standards as required under the law.
- DUI or drug test evidence was compromised in its testing, handling, labeling, transport, or storage.
- Breathalyzer tests were inaccurate or the testing device was not maintained properly or malfunctioned.
- The search warrant was invalid or was not specific enough.
- Independent expert witness testimony raises reasonable doubts about a certain piece of evidence.
- Evidence was acquired in another unconstitutional fashion.
An experienced criminal defense attorney will be trained to spot the constitutional grounds that can be used successfully file a motion to suppress evidence. These motions often involve complex constitutional issues, and you want an attorney who has experience filing and arguing them on your side. If you have been arrested, call our Fairfax law office today to schedule a free consultation to learn how our legal team can help build your defense and fight the charges you face.
What are my rights to discovery in a criminal case in Virginia?
If you have been charged with a crime, you have the right to certain kinds of evidence and other information before your scheduled trial. These materials are known as discovery. Each state has its own rules on what discovery must be provided by the prosecution and the defense. Unfortunately, Virginia’s rules on disclosing evidence favors the prosecutor. However, even with the limitations on what you can obtain through the discovery process, receiving and reviewing any information that you can obtain from the prosecutor is essential to building a strong defense.
What Are Your Rights to Discovery in Virginia?
Discovery is the process by which defendants find out about the prosecutor’s case against them. This information can be crucial for a criminal defense attorney to build a strong defense to the charges and to help the person charged with the crime decide whether entering into a plea agreement is in his interests. Discovery is an ongoing obligation. If you are a defendant in a criminal proceeding, the prosecution has a duty to provide you with the following:
- Any statement made by you
- Your prior criminal history
- Information on any expert witnesses the prosecution intends to use at trial
- The results of any scientific tests performed
- Books, papers, documents, photographs, and other tangible evidence that the prosecutor has and that is material to your case
- Exculpatory evidence
The prosecutor has no duty to disclose his strategies, legal theories, and notes regarding your criminal case. This is known as his work product and is not required to be provided to you. Discovery is now reciprocal, which means that you as a criminal defendant have obligations to disclose certain information to the prosecutor. In general, the information that you are required to share is similar to what the prosecutor must provide to you.
What Is Exculpatory Evidence?
Under the U.S. Constitution, the prosecutor is required to provide the defendant’s attorney with any exculpatory evidence in his possession or control. This is known as Brady information and is named after a famous U.S. Supreme Court case that established the requirement that the prosecution turn over exculpatory evidence. It is usually defined as evidence that tends to dispute the defendant’s guilt or would suggest a lesser punishment. In addition, the evidence does not have to strongly suggest innocence. It must be provided if it provides significant aid to the defendant’s case, including providing any doubt as to the defendant’s guilt.
In order to ensure that they receive this required information, criminal defense attorneys often formally request this evidence in a written request or motion early on in the criminal proceeding. In addition, the attorney may interview other parties that could be aware of other exculpatory evidence.
If there are Brady violations by the prosecutor, the court could overturn a conviction and set a new trial date. The judge is more likely to find a violation if the defense counsel made a written request for the information. This is one reason a thorough discovery is so important to a defendant’s defense.
Special Rules Regarding Discovery in Misdemeanor Cases
In district courts in Virginia, which is where misdemeanor criminal cases are heard, there are special rules regarding discovery. The prosecutor is only required to provide the following information:
- Any statement that the defendant has given to the police
- The defendant’s criminal record
Under this rule, criminal defense attorneys must make a formal request for this information at least 10 days before the trial date. In some instances, the prosecutor may not provide it until the morning of the trial.
In the Commonwealth of Virginia, the discovery process can be slightly different depending on the jurisdiction where a criminal case is being heard. Different prosecutors can have a different interpretation of what they are required to disclose. In addition, having an experienced criminal defense attorney who has experience working with the prosecutor can make the discovery process in your case go more smoothly.
At Greenspun Shapiro PC, our criminal defense attorneys have over 100 years of combined experience handling criminal cases for our clients, fighting for their rights, and working with prosecutors in many jurisdictions. If you are facing criminal charges, do not delay in scheduling your free consultation. Start an online chat today to schedule your appointment.