A new law changes hundreds of years of law in Virginia.  Every Criminal Lawyer Fairfax County Virginia needs to know about this. In Virginia there is no “diminished capacity defense.”  What that means is that the only way a person can be found not guilty for not fully understanding what he is doing is to be found “not guilty by reason of insanity.”  In short, that means that at the time of the offense, the Defendant did not know what he was doing nor the consequences of his act.  So, if a person killed someone and said, “a little man on my shoulder made me do it” that would NOT be a valid insanity offense.  In that situation, the defendant know he was killing someone and knew that his actions would result in the person’s death.  Sure, he had mental illness.  Some would call this “diminished capacity.”  But that is not enough to excuse his conduct.

In recent years, this issue of diminished capacity has come up quite often in the school setting.  Kids with autism get in trouble in school by pushing a teacher or throwing a trash can.  While that is not the right thing to do, autistic kids get frustrated and acting out is basically a result of their disability – or their “diminished capacity.”  In the past, if a defendant who was autistic got charged with destruction of private property by a school resource officer, a Criminal Lawyer Fairfax County Virginia may argue, “This is why he is in special education!  The school is supposed to teach him, not arrest him!”  And while that is a good public policy argument for changing the law, it would not have resulted in an acquittal … until now.

The new law, that takes effect on July 1, 2020, allows a court to do a “deferred disposition.”  A deferred disposition is where the Court continues the case and usually requires either mental health / substance abuse counseling, community service or both.  If the defendant complies with the counseling and community service, the case is dismissed.  So even if the person is guilty of the offense, this gives the defendant a second chance and will result in no conviction.  (Note:  the criminal record would say “Charged with Offense X – Dismissed.”

The new law says that for any person, except those for certain violent felonies, upon a plea of guilty (or an admission by the defendant that the facts are sufficient to find him guilty) can have his case dismissed by a deferred disposition arrangement discussed above.  However, to get this, the Court has to find that the defendant (a) has been diagnosed by a psychiatrist or psychologist with either autism or an intellectual disability, (b) that autism or intellectual disability is so severe that it causes sub average IQ and significant limitations in behavior or skills, and (c) that the autism or intellectual disability cause or substantially contributed to the criminal conduct.  Maybe an example of how this statute could be used will help.  So, if a kid with autism gets charged with destruction of property for throwing a trash can across the room at school, his/her Criminal Lawyer Fairfax County Virginia can use this statute by showing that his client has autism, and that the autism caused him to get frustrated and throw the trash can.  Then the Judge may continue the case for a period of time, require the defendant to continue counseling and treatment and then dismiss the case if there are no further violations.  Here is the actual statute.  Italicized language is new language. 

§ 19.2-303.6. Deferred disposition in a criminal case; persons with autism or intellectual disabilities.

1. In any criminal case, except a violation of § 18.2-31, an act of violence as defined in § 19.2-297.1, or any crime for which a deferred disposition is provided for by statute, upon a plea of guilty, or after a plea of not guilty, and the facts found by the court would justify a finding of guilt, the court may, if the defendant has been diagnosed by a psychiatrist or clinical psychologist with (i) an autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or (ii) an intellectual disability as defined in § 37.2-100 and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person’s disorder or disability, without entering a judgment of guilt and with the consent of the accused, after giving due consideration to the position of the attorney for the Commonwealth and the views of the victim, defer further proceedings and place the accused on probation subject to terms and conditions set by the court. Upon violation of a term or condition, the court may enter an adjudication of guilt; or upon fulfillment of the terms and conditions, the court may discharge the person and dismiss the proceedings against him without an adjudication of guilt. This section shall not limit the authority of any juvenile and domestic relations court granted to it in Title 16.1.

One thing that jumps out to an experienced Criminal Lawyer Fairfax County Virginia is sub-section B.  All other deferred disposition statutes say that the deferred disposition can only be given one time.  So if you commit a crime and get a deferred disposition which results in no conviction, then you cannot use it again for future charges.  Under this new section, people with autism or intellectual disabilities, the can use this new law again and again.  Here is subsection B

• Deferred disposition shall be available to the defendant even though he has previously been convicted of a criminal offense, been adjudicated delinquent as a juvenile, or had proceedings deferred and dismissed under this section or under any other provision of law, unless, after having considered the position of the attorney for the Commonwealth, the views of the victims, and any evidence offered by the defendant, the court finds that deferred disposition is inconsistent with the interests of justice.

To get this disposition is not as easy as just going to court, saying “I have an intellectual disability” and then get the charge dismissed.  You have to provide the diagnoses by the psychologist or psychiatrist, which must meet the definition in the statute.  And while many prosecutors will accept a letter, testimony by the psychologist or psychiatrist may be needed.  Thus, most people will want to hire a Criminal Lawyer Fairfax, Virginia from the office of Dave Albo – Attorney to handle a case such as this.