Frequently Asked Questions
Below are some frequently asked questions answered by a criminal attorney in Virginia.
There are numerous ways to find a criminal lawyer in Virginia. Many people who find themselves charged with a criminal offense and have no experience with the criminal justice system do research by looking online, looking in the local phonebook, or talking to friends, family, and co-workers for referrals. Personal referrals don’t happen quite as often in the criminal lawyer context as they may in other areas of law like trusts and estates or family law because sometimes people want to keep a criminal charge confidential. Because they want to keep it a secret and maintain their privacy, they oftentimes go on the Internet and do online research to find a criminal lawyer. There are some really good online tools out there. Avvo, Google places, and Martindale-Hubbell are all resources where prospective clients can put in their geographic area to look for attorneys that practice criminal defense and see reviews and more information about that attorney.
That is a very subjective question and requires a very subjective analysis. The best attorney for you as the potential client might not be the best attorney for other clients or other people. As far as criminal defense, the specific relationship, style, and attitude of a criminal defense attorney matters a lot for the specific client and their needs. People have different expectations of what their criminal lawyer will be, how they will present their case, and how they will communicate with them. I recommend vetting several different criminal defense attorneys until you find someone that is good for you as far as meeting your needs and communicating well. Something that is really important is to find that connection. A lot of criminal defense attorneys can give you the proper information and explain legal rights and potential defenses. As a client, you are going to have to put your trust in them and connect with them on that level to really establish a good attorney-client relationship.
There is the old adage that you get what you pay for and that is certainly true in the context of criminal defense attorneys. That isn’t to say that the cheapest attorney is any better or worse than any other attorney depending on the circumstance, but typically attorneys charge fees based upon their experience, the amount of time they put into a given case, and their particular training and experience.
How much time they are going to dedicate to the case is based upon the evidence they see and analyze, and the personal attention the attorney gives to the case. When a client hears a very low number, it very well could be that the attorney does not expect to have as much personal contact or something like that. The prospective client should understand it is acceptable for some kind of vetting to go into legal services as another resource or purchase because you want to make sure that you’re getting top quality service rather than just focusing solely on the price point.
As soon as you feel like you’re the subject of a criminal investigation, even if you have not been arrested yet, it’s a great idea to contact a criminal defense attorney to find out what your next step should be and how your rights can be protected. If you have been charged, you should contact a criminal defense attorney right away. If you have been charged, you’re expecting indictment, or there is some other indication that there is going to be a charge coming, absolutely contact an attorney as soon as possible. That doesn’t necessarily mean that you should hire the first attorney you call. Any prospective client should go through the process of talking to attorneys to find out who they’re most comfortable with, who they can place their trust in, and who they feel has the requisite knowledge and experience in their geographic area to provide the best services.
That is really case specific. It really depends upon what the client needs to have done. If you hire the attorney before sitting down and having a face-to-face meeting, then that’s probably the next step. If you have already had the in-person consultation and then you decide to make the decision to hire the attorney, my preference as a criminal defense attorney is to then sit down with the client and map out what is expected of the client and what is expected of the attorney during the timeline of the case. I like to explain to them what they can expect and what the timeline looks like so that everyone knows what tasks are expected of them. The client will have reasonable expectations of when to expect follow-ups from the attorney and when to expect certain things to happen. It also gives the clients a chance to ask questions.
If you have been accused of a crime, that means that either an officer or some other law enforcement official has contacted you. If you haven’t been arrested or indicted, that may mean that the case has not been presented to a grand jury (in the case of very serious charges). It is still a great idea to contact a criminal defense attorney because you want to be very particular about who you share the information about the accusation with and who you talk to about other facts and information. You want to be sure that the evidence that proves your innocence is preserved. There are a lot of things that a criminal defense attorney can help you with prior to charges coming down, including doing some initial investigation, potentially contacting law enforcement on your behalf, and giving you peace of mind as far as the process. It is certainly important that you contact a criminal defense attorney as soon as possible.
This question is for someone who is thinking about either hiring an attorney or asking the court to consider them for court-appointed counsel. In Virginia, court-appointed counsel is appropriate when the Commonwealth Attorney, the prosecutor, is not waiving their ability to seek jail time. In some cases, the Commonwealth does waive their ability to seek a jail sentence. That often occurs for first offense misdemeanors that are minor in nature, such as trespassing or a fender bender type of reckless driving case. Cases in which the Commonwealth is never going to waive their right to seek a jail sentence that are also misdemeanors typically include marijuana possession, larceny offenses or other property crimes, as well as DUI cases.
When the person is deciding that, they’ve already reached the stage of being arrested, coming before a court, and deciding between a court-appointed public attorney versus a private attorney and what the best use of their resources is. It is important to consider that a private attorney is generally going to have fewer clients and be able to provide more individual attention, both prior to court and on the day of court. They are able to have more interaction and the client is going to be able to have more access to that attorney. For example, the public defender’s offices in Loudoun County and Fauquier County handle a large volume of cases on any given docket. Whereas a private attorney may only have one or two clients, a public attorney on that same docket may have eight or 10, so their attention is going to be stretched. That’s not to say they don’t do a great job, but many times a client seeking a private attorney is looking for individual attention, including an individual response to telephone calls or emails as well as some potentially creative solutions to their legal issues that may not be available for a public attorney.
If you’re in a situation where you’re arrested and detained without bond, which would typically happen for a serious charge or someone with a prior criminal history, it is important to contact a criminal defense attorney right away. Often this may be through a family member or trusted friend acting on your behalf until the attorney can communicate with you. In some jurisdictions you can hire a private attorney just for the bond hearing. This is called a special appearance. It depends upon the circumstances of the case, but oftentimes you or relatives acting on your behalf can assist in securing an attorney who can then file a bond motion and present that to the court. Bond motions are very important. They have preference on the docket, meaning they can get turned around and heard faster than most other motions. An experienced criminal defense attorney can visit you in jail, communicate with you, discuss when a bond motion is appropriate, see whether your case has a good chance for success in a bond motion, and let you know what to expect from that bond motion.
That is going to be unique to the individual case. Your attorney is going to prepare with you, let you know what to expect, and let you know what information you need to gather before the court date. They will tell you what to expect or what not to expect on your court date depending on the local jurisdiction. Any evidence you can gather, including the little things like where to go, where to sit, what to bring, where to park, and how to dress, are sometimes not quite known to persons that don’t have prior experience with the criminal justice system. The criminal defense attorney will certainly go over all of that with you prior to your court date.
That depends on the case. The expectations for any case will be different depending on the procedural posture of the case. Procedural posture is what indicates whether the case is set for trial, whether there is going to be a preliminary hearing, or whether the case will involve some sort of a plea negotiation. Based on the procedural posture, everyone knows where the case is. Your attorney will let you know what to expect regarding that prior to the court date.
Felony and misdemeanor are old English terms. A lot of Virginia law, especially Virginia criminal law, has been brought over from English common law because Virginia was initially an English colony. A lot of those old laws from England have been taken into our law. Originally, felonies in England were punishable by death. That is not the case anymore, but the term ‘felony’ lives on to refer to more serious offenses. In Virginia, a felony is anything punishable by prison time. The differentiation between prison and jail is that jail is local, while prison is part of the Department of Corrections system. There are six categories of felonies and they are all punishable by actual prison time. Misdemeanors, of which there are four classes, are less serious offenses. Typically the most serious misdemeanor offenses are assault, petit larceny, and DUI. Those types are only punishable by up to 12 months in jail, up to a $2,500 fine, or a combination thereof, as well as potential other special conditions depending on the nature of the offense.
In general, felonies are much more serious. Misdemeanors are less serious in terms of the court procedure standard. Lesser criminal cases originate in the general district court, which can make a finding of guilty or not guilty. That court does not make the final adjudication of a felony offense. Only the circuit court of a given jurisdiction can make the final adjudication decision for a felony if the case proceeds to trial or entry of a plea.
Typically when someone is found guilty of an offense, or there has been a factual finding similar to guilt in the case of deferred disposition, as part of the punishment or sentencing phase, probation is an option. Probation means that the person has to complete some requirements or else they run the risk of having further fines or further jail time imposed by the court. Typically probation is there to make sure the person is keeping up their end of the bargain, is living life on the straight and narrow, is not committing any further crimes, and is not using illegal drugs or substances. If mental health, restitution, or other special conditions are involved, then the probationary staff would monitor payment of restitution, completion of programs, and completion of community service. All of that is typically a part of the probationary process. It is not to punish people but to make sure that they don’t commit further acts like those that caused them to be in court in the first place.
The conditions of probation are different for everybody. There will be a general list of probationary conditions that the assigned probation officer goes over with the person. Depending on the jurisdiction, there is typically a set of rules that applies to every probation case. In addition to those set rules that apply to every case, there will be specific rules based upon that particular situation. Terms of probation will vary, but generally they include no further violations of the law, meaning general good behavior. They don’t want you to come back to court again. The terms usually also include not using illegal substances. In the case of a crime that involves a victim, the person cannot have contact with the victim. The terms also include having communication with the probation department, answering their phone calls or emails, and things of that nature. It also generally means following up on any requests that the probation officer may have. Those requests are often to return their calls, have meetings, or potentially have random drug screenings. All those are examples of things that are required for probation.
The particular punishment for a criminal offense can be set in a bunch of different ways. First, the statute is going to dictate what the minimum and maximum penalties are for every offense in Virginia. For example, a Class 1 misdemeanor is punishable by 12 months in jail, up to a $2,500 fine, or a combination thereof. Likewise, a Class 5 felony is punishable by one to 10 years in prison or, at the court’s discretion, up to 12 months in jail and/or a fine of up to $2,500. There are a lot of different punishments that are available according to the statutes.
Virginia is unique in that there are no subclasses to that. There is no Class 1A misdemeanor, for example. Depending on the facts of the case, the judge or the jury has very broad discretion in terms of what punishments they can give. In the majority of cases, as long as they don’t violate the statute by giving an illegal sentence or giving a sentence that is more severe than what the statute authorizes, there are very few sentencing requirements. The judges use their discretion. For a misdemeanor case in general district court, they often use their experience in similar types of cases, the person’s criminal record, and the specific factual circumstances of the case in question to decide what punishment is appropriate. For a felony case where a person has entered a plea or has been found guilty by a judge, there are the Virginia sentencing guidelines. The federal system also has sentencing guidelines, but the Virginia guidelines are different. They are purely discretionary and the court considers them but is not obligated in any way to follow them. It gives the judge an idea of other similar sentences across the state so that a punishment in Fairfax County or Loudoun County is arguably the same as it is in Hampton, Richmond, or Lynchburg. The sentencing guidelines are discretionary, but they give the accused some expectation about what may happen to them given the circumstances of their case and their criminal history.
Felonies are a totally different ball game because felonies are not adjudicated in general district court, but they may originate there. Felony cases often originate in general district court by a warrant of arrest and then a preliminary hearing is heard. At that level, that person can’t be found guilty of a felony and they couldn’t even plead guilty if they wanted to. The court adjudicates whether or not there is sufficient evidence to certify the case to circuit court and then the case goes to circuit court for further action. Then the circuit court is responsible for adjudicating that felony either by having a bench trial, having a jury trial, making a plea, making a finding, or potentially having the case dismissed. Circuit court is the only court that can do felony sentencing.
Whether or not there is going to be a trial is a decision that is made between you and your attorney once the full circumstances of the case, the position of the Commonwealth, and the positions of any witnesses are known. All those are factors as to whether or not the case goes to trial. The client is the one that ultimately makes the decision of whether or not the case goes to trial after hearing the sound advice of their counsel.
In Virginia, for certain driving offenses the court may impose a suspension of someone driver’s license. If they are Virginia driver, that is a suspension of their physical driver’s license, so they have to surrender it to the court. If the person is an out-of-state driver, they cannot lose their out-of-state license to the Virginia court, but they can lose their privilege to operate a motor vehicle in the Commonwealth of Virginia. That license suspension can also be in addition to other penalties. License suspension is often related to driving offenses such as DUI, hit and run, reckless driving, driving on a revoked or suspended license, and other serious driving offenses. However, Virginia is also unique in that Virginia imposes a mandatory six-month license suspension for any drug-related offense conviction, including a deferred finding. That includes possession, distribution, possession with intent to distribute, and manufacture of either marijuana or any scheduled substance. In addition to driving-related offenses, even a drug offense that didn’t involve a vehicle at all could result in a driver’s license suspension or loss of driving privileges.
Having a warrant out for your arrest is the first step in the criminal process, meaning the case is going to go to court. A warrant means that a judge, a prosecutor, a police officer, or a civilian witness has executed an affidavit affidavit attesting to certain facts. A magistrate judge has then reviewed that affidavit (also called a criminal complaint) and determined there is probable cause that the person named committed the offense. A warrant of arrest is then issued. Any active warrant means that the named person could potentially be arrested at any time through any encounter with law enforcement. Depending on the severity of the case, that warrant could result in being detained or it could simply result in being served with the warrant, and thus notice of the court date.
Yes, but it depends on the circumstances. It often depends upon the specific circumstances in which you encounter law enforcement. If it’s a situation where the encounter is consensual, then a person has the ability to decline or refuse to allow their person, their possessions, or their home to be searched. If the officer has a search warrant, that’s a different scenario. Refusing to obey a valid search warrant could result in an arrest for obstruction of justice, so that’s something you want to be aware of. Additionally, if you’re being searched because the officer is stating that there is probable cause, then law enforcement is going to continue with their actions despite your potential disagreement. That does not mean you need to consent to the search but it does mean that the search may happen against your will.
If you are convicted of an offense in Virginia, and by convicted I mean a court finds you guilty of the offense and it’s not a dismissal of the case, that is typically not eligible for sealing or expungement. The limited circumstance where that may differ is in the case of an offense that is committed by a juvenile.
If you are convicted of an offense in Virginia, and by convicted I mean a court finds you guilty of the offense and it’s not a dismissal of the case, then that is typically not eligible for sealing or expungement. The limited circumstance where that may differ is in the case of an offense that is committed by a juvenile.
That is a very interesting question. The answer is really that it depends. You are certainly under no legal obligation to talk to law enforcement or participate in an investigation that maybe against your interests. The Supreme Court has said that if an officer asks you to provide identifying information during an investigation, you have to give your information but you are not required to say anything regarding your whereabouts or any other facts that they may have. It is really up to the person who is dealing with law enforcement whether or not they want to participate and answer questions. Typically if a person is nervous about talking with law enforcement or feels that they may be under some sort of investigation, that is a perfect indicator that they should be talking to a criminal defense attorney and not to law enforcement.
There are a lot of reasons why Virginia criminal laws are unique. There are a lot of interesting nuances to Virginia law. The fact that a conviction is forever under Virginia law makes Virginia criminal law very high stakes. We also have some of the most serious penalties for drug offenses and drunk driving offenses than anywhere else in the United States.
As someone who practices only in Virginia, something else that I did not realize was unique about our laws until recently is that we have jury trials that also include sentencing. A lot of states have active criminal jury dockets, but Virginia is one of the few states where a jury does the punishment phase as well as the guilt phase. That certainly creates a different dynamic for the decisions that criminal defendants make in choosing between types of trials because if they are found guilty by a jury then a jury will do the sentencing as well. Judges still ratify the jury’s recommendation, but the jury makes the initial decision without the benefit of sentencing guidelines.
Yes. As a matter of right, any misdemeanor conviction in the general district court is appealable de novo. A de novo appeal means that the case starts over as a brand new case in the circuit court. General district court may or may not have a record, meaning there will not necessarily be a court reporter unless the defendant supplies one. That is something to keep in mind, that if you do decide to have a trial in a general district court, the attorney should discuss with you whether or not you want to have court reporter present to create a record for future court dates in circuit court if necessary. Often times as part of the plea agreement in general district court, the defendant will waive that right, meaning that they give up the right to the appeal. When making that decision, you would want to be conscious of what you are giving up. If you waive the appeal, you give up the ability to give the case to circuit court.
Not necessarily, but that also depends on the case. It depends on a lot of factors, including the nature of the offense, whether there is a lot of media publicity, and whether or not your employer has reporting requirements. Many government jobs or federal contracting jobs have requirements about reporting arrests or convictions. Your employer might find out about a criminal offense if they do active criminal background checks. Many background checks only check for convictions, but if the person doing the background check is looking for an arrest record either by going to the NCIC database (National Crime Information Center) or by searching through the local court records, an arrest may show up as well.