Basic Questions on Virginia Criminal Law

There are a number of things that make Virginia unique. The two most controversial ones are limited discovery and jury sentencing. Unlike in many states, the prosecutor is not required to turn over very much information about your case to you. Remarkably, your lawyer does not even get to see the police report! Some prosecutors, recognizing how unfair this is and truly wishing to avoid erroneous convictions on their watch, adopt an “open file” discovery policy. This permits the defense attorney to see the police report and other important information. However, most prosecutors only turn over the mandatory minimum.
Jury sentencing is the relatively unique Virginia procedure whereupon our juries have two functions. First, they determine whether a defendant is “guilty” or “not guilty.” This is what juries do in all states. However, second, if they find the defendant “guilty,” they deliberate a second time and recommend the sentence — how much prison or jail time. Despite the existence of Sentencing Guidelines that would give context to sentencing, jurors do not get to see them and, thus, make sentencing recommendations in the absence of this important context.

: A person need not commit a crime to be criminally liable. One could be an “accomplice” who helped another commit the crime — such as a “lookout.” Or, one could help another who committed the crime as an accessory before or after the fact — such as one who hides the person.

Criminal defense lawyers usually start from the back and work backwards. They will review the alleged crime and list the “elements.” Elements are the several things that the government must prove in order to win a conviction. Can each element be proven beyond a reasonable doubt? Seeing that Constitutional rights have been protected are also common defenses. For example, if the police violate the Constitution by illegally searching one’s home, the penalty is that they can’t use any evidence obtained during that search. Defenses are different based on the case. For example, an alibi defense necessarily requires some proof that the accused was not at the crime scene.

Misdemeanor prosecutions commence on a Summons or Warrant of Arrest. The accused is given a court date for an “arraignment” wherein he is formally read the charges and told to get a lawyer. The accused is given a second date for the trial. Motions may be heard on the day of trial or sometime in advance, depending on the court and issue. Misdemeanor trials are before a single judge in the General District Court. If convicted in that court, the accused can appeal to the Circuit Court for a new trial before a jury. In some instances, a misdemeanor trial begins in the Circuit Court.

: Felony prosecutions commence on a Warrant of Arrest or an Indictment. In most cases, the accused is called before the General District Court for a Preliminary Hearing. This is a truncated trial on the issue of whether the government can prove that there is “sufficient cause” to prosecute him. If the case proceeds, it goes to the Circuit Court for an arraignment, motions, and trial.

We are one of Virginia’s largest firms that defends criminal law cases. We feature three former prosecutors and regularly teach criminal law to other lawyers. We are proud of our work and think that the accolades we have received in the media really set us apart.

An “assault” is an overt act intended to do bodily harm to another together with the present ability to cause such harm.  It is also an overt act intended to place a person in fear or apprehension of bodily harm that creates in him a reasonable fear or apprehension.

A “battery” is the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting, or vengeful manner.

The more violent the assault and battery, the worse the potential punishment.  At some point, an assault can be “murder,” punishable by death or “malicious wounding,” punishable by up to 20 years in prison or 5 years in prison, depending upon the severity  At a minimum, Assault and Battery is a Class 1 misdemeanor, punishable by a jail sentence of up to 12 months and a fine of up to $2,500.00

In addition, there is a special class of cases involving family members — Assault and Battery Against a Family or Household Member — which could affect one’s civil rights in ways much different than ordinary Assault and Battery.  Also, there are special punishments that apply depending on the identity of the alleged victim.  For example, if one is convicted of Assault on a Law Enforcement Officer, the punishment includes a mandatory minimum prison sentence of at least 6 months.

“Larceny” is stealing, theft, or shoplifting. It is different from Robbery because there is no use of force. To convict, the prosecutor must prove (1) that the defendant took personal property belonging to another and carried it away; (2) that the taking was against the will and without the consent of the owner; and (3) that the taking was with the intent to steal.
If the value of the allegedly stolen property was worth $500.00 or more (Note: after July 1, 2020 the new legislation makes the level $1000.00 or more), or the item was a firearm, the crime is felony “Grand Larceny,” with a maximum punishment of 20 years in prison and no mandatory minimum punishment. Otherwise, the crime is “Petit Larceny,” a misdemeanor with a maximum punishment of up to 12 months in jail and a fine of up to $2,500.00.

To prove a drug charge, the prosecutor must prove that the defendant knowingly and intentionally possessed the drug. The type of drug determines the seriousness of the charge. Unsurprisingly, “Possession of Marijuana” is not nearly as serious as “Possession of Cocaine.” The key here is “knowing and intentional” possession. This can be hard for a prosecutor to prove and is the main defense in drug cases.
“Possession with Intent to Distribute” (PWID) marijuana, cocaine, ecstasy, or heroin are frequently charged drug crimes. Items such as scales, baggies, and larger quantities of drugs become the basis of such charges, even if the use was personal. To prove PWID, a prosecutor must prove that the defendant possessed with intent to distribute the drug. With the exception of Marijuana, the possession of which is a misdemeanor, almost all drug charges are felonies in Virginia. The maximum punishment for simple possession is up to 10 years in prison.
Oddly, whether a motor vehicle is involved in a drug case or not, most convictions of a drug offense also results in a mandatory driver’s license suspension for at least 6 months.

: To convict one of DUI or DWI, a prosecutor must prove (1) that the defendant was operating a motor vehicle; and (2) that at the time of operation he either (a) had a blood alcohol concentration (“BAC”) of 0.08 or more, (b) he was “under the influence of alcohol,” (c) he was “under the influence” of a narcotic or other self-administered intoxicant or drug or a combination of such drugs to a degree which impaired his ability to operate a motor vehicle safely; or (d) he was under the combined influence of alcohol and any drug or any combination of such drugs to a degree which impaired his ability to operate a motor vehicle safely.
There are related offenses, such as “Involuntary Manslaughter,” where an alcohol-impaired individual is in an accident that results in death of another. Also, “Refusal of Tests” results in a civil penalty. One commits this violation by refusing to submit to a blood or breath test after being arrested for DUI. The punishment is a one year license suspension in addition to any punishment for the underlying DUI.
Typically, however, DUI is a Class 1 misdemeanor. The punishment is up to 12 months in jail and up to a $2,500 fine. The mandatory minimum punishment, for a first offense with a low blood alcohol level from a breath or blood test is (1) a one year driving license suspension; (2) successful completion of a substance abuse program called the Virginia Alcohol Safety Action Program (VASAP); and a fine of at least $250.00. Regarding the license suspension, the judge is authorized to reissue a restricted license, allowing one to drive to and from work and other limited trips during the license suspension period.
If one’s blood alcohol level tests at 0.15 or more, the mandatory minimum sentence includes 5 days in jail. Conviction with tests over 0.20 result in mandatory minimum jail of 10 days. Mandatory jail increases based on prior DUI convictions.
Under some circumstances, including two prior DUI convictions, a DUI can become a felony.

Reckless Driving is a series of laws related to fast or dangerous driving. The most common form of Reckless Driving is driving at a high speed. If one exceeds the speed limit by 20 miles per hour or more, this is “Reckless Driving” even if the driver is handling the speed particularly well. Speed alone makes the crime.
The second most common form of Reckless Driving are cases involving collisions. This is one of the larger errors in Virginia criminal procedure. Some police officers charge almost every accident as “Reckless Driving” when, in fact, that crime had not been committed. Not every traffic accident is the result of Reckless Driving, no matter what the local police may think.
The third most common form of Reckless Driving is generally bad driving. These cases are decided on a case-by-case basis.
The penalty for Reckless Driving is a Class 1 misdemeanor — a crime on the same level as DUI, Petit Larceny, and simple Assault. The maximum penalty is up to 12 months in jail and a fine of up to $2,500. In addition, the judge has the power to suspend one’s driver’s license for up to 6 months.

To prove the crime of Trespassing, a prosecutor must prove that the (1) the defendant went on the land of another; (2) did so willingly, and (3) he had been forbidden to do so by the owner or person in charge or by a sign.
The most common defense is proof that a person was told not to be on another’s land. It is not enough that one is simply on another’s property without permission.
The punishment for Trespassing is a Class 1 misdemeanor. The maximum punishment is up to 12 months in jail and up to $2,500 in fines.
QUESTION: Drunk in Public, Urinating in Public
ANSWER: To prove that one was Drunk in Public a prosecutor must prove (1) that a defendant was drunk and (2) that he was in public. Both elements are particularly fact-based. “Drunk” can be as little as having consumed enough of an alcoholic beverage to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior. “Public” isn’t what many people think. Generally, if others can see you, you are in public.

: There are a large number of sex crimes and prostitution. Like most offenses, the more outrageous the alleged conduct, the more severe the punishment upon a conviction.
To prove Rape, the prosecutor must prove (1) that the defendant had sexual intercourse with another who wasn’t his spouse; (2) that it was against her will and without her consent; and (3) it was by force or intimidation. The punishment is a prison sentence from 5 years to life in prison. If there was no intercourse, the crime is not Rape, but can be Sexual Battery.
To prove Sexual Battery, the prosecutor must prove (1) that the defendant sexually abused the victim; (2) that it was against her will; and (3) that it was by force, threat or intimidation, or ruse. Unlike with Rape, the punishment is a Class 1 misdemeanor, punishable with a maximum penalty of up to 12 months in jail and a fine of up to $2,500.00.
To prove Prostitution, the prosecutor must prove (1) that the defendant had sexual intercourse or sodomy with another person not his wife; (2) that it was for money or money’s equivalent. It is a Class 1 misdemeanor, punishable with a maximum penalty of up to 12 months in jail and a fine of up to $2,500.00.

To prove Abduction, a prosecutor must prove (1) that the defendant by force, intimidation, or deception did take the victim; (2) that the defendant did so with the intent to deprive the victim of his personal liberty or to withhold him from his guardian; and (3) that the defendant acted without legal justification or excuse. The punishment is a felony carrying up to 10 years in prison.
Parental Abduction is proven when (1) the defendant is the parent of the child; (2) that the defendant by force, intimidation, or deception took the child; and (3) that the defendant did so with the intent to withhold or conceal the child from a lawful guardian; (4) the defendant acted in violation of a Court order and without legal justification or excuse; and (5) the child was removed from Virginia. The punishment is a felony carrying up to 5 years in prison.

:  An “assault” is an overt act intended to do bodily harm to another together with the present ability to cause such harm.  It is also an overt act intended to place a person in fear or apprehension of bodily harm that creates in him a reasonable fear or apprehension.

A “battery” is the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting, or vengeful manner.

The more violent the assault and battery, the worse the potential punishment.  At some point, an assault can be “murder,” punishable by death or “malicious wounding,” punishable by up to 20 years in prison or 5 years in prison, depending upon the severity  At a minimum, Assault and Battery is a Class 1 misdemeanor, punishable by a jail sentence of up to 12 months and a fine of up to $2,500.00

In addition, there is a special class of cases involving family members — Assault and Battery Against a Family or Household Member — which could affect one’s civil rights in ways much different than ordinary Assault and Battery.  Also, there are special punishments that apply depending on the identity of the alleged victim.  For example, if one is convicted of Assault on a Law Enforcement Officer, the punishment includes a mandatory minimum prison sentence of at least 6 months.

To prove Discharging Firearms in an Occupied Building, the prosecutor must prove (1) that the defendant discharged a firearm within a building occupied by one or more persons; (2) that the firearm was discharged in such a manner as to endanger the life or lives of such person or persons; and (3) the act was done with malice. The maximum punishment is between 2 and 10 years in prison and a fine of up to $100,000.00. (If there was no malice, the maximum prison sentence drops to 5 years with no minimum sentence. The fine drops to up to $2,500.00 in fines.
To prove the crime of Carrying a Concealed Weapon, the prosecutor must prove (1) that the defendant was carrying a weapon enumerated in Virginia Code sec. 18.2-308 about his person; and (2) that this weapon was hidden from common observation. The enumerated weapons in the state code are a variety of guns, knives, and exotic items, such as nun chucks and throwing stars. It is punishable as a Class 1 misdemeanor with a maximum jail sentence of up to 12 months and a maximum fine of up to $2,500.00.

To prove Extortion, a prosecutor must prove (1) that the defendant made a threat of injury to the person, character, or property of another (or accused another of a crime; (2) such threat or accusation made by the defendant caused the person threatened or accused or any other person to part with money or its equivalent; and (3) the money was given by the threatened or accused person to the defendant or someone designated by him. The maximum punishment is a prison sentence of up to 10 years.

To prove Stalking, a prosecutor must prove (1) that the defendant on more than one occasion engaged in conduct directed at the victim; and (2) that the defendant by his conduct intended to place the victim in reasonable fear of death, criminal sexual assault, or bodily injury to the victim. This is punishable with a maximum prison sentence of up to 5 years.

To prove Child Abuse Resulting in Serious Injury, a prosecutor must prove (1) that the defendant was responsible for the care of the child; (2) that the child was under the age of 18; and (3) the defendant by willful act, or mission, or refusla ro provide any necessary care for the health of the child, caused or permitted serious injury to the life or health of the child.

The punishment is between 2 and 10 years in prison.

There are five classes of crimes involving death. From the most serious to the least serious, they are: Capital Murder, First Degree Murder, Second Degree Murder, Voluntary Manslaughter, and Involuntary Manslaughter. The punishment range is up to 10 years in prison (for Involuntary Manslaughter) to death (for Capital Murder).
The difference between “Murder” and “Manslaughter” is malice. When malice is present, the killing is Murder. When it is absent, the killing can be no more than Manslaughter. In a nutshell “malice” is the state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason.
Dave Albo – Attorney is among the few Virginia law firms to hear the words “Not Guilty” from a jury when defending a Murder charge. (Don’t be upset with us, our defendant didn’t do it!)

To prove Obstruction of Justice, a prosecutor must prove (1) that the defendant by threats or force; (2) knowingly attempted to intimidate or impede a police officer; (3) while the law enforcement officer was engaged in duties as a law enforcement officer. The maximum punishment, depending on the severity of the act, is a prison sentence of up to 10 years.

To prove Malicious Wounding, a prosecutor must prove (1) that the defendant caused bodily injury to the victim; (2) that such bodily injury was with the intent to kill or permanently maim, disfigure, disable or kill the victim; and (3) the act was done with malice.
(If there was no malice, the crime was “Unlawful Wounding.” In a nutshell “malice” is the state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason).
Malicious Wounding is punishable with a prison sentence of up between 5 and 20 years and a fine of up to $100,000.00. Unlawful Wounding is punishable with a prison sentence of up to 5 years in prison.

To prove Wounding with Intent to Maim Mob, a prosecutor must prove (1) that the defendant was a member of a mob; (2) that the member or members of the mob caused bodily injury to the victim; (3) that such bodily injury was with intent to maim, disfigure, or kill the victim; and (4) that such act was done maliciously or unlawfully. The punishment is prison for a period between 5 and 20 years and a fine of up to $100,000.00
To prove Participating in a Criminal Act as a Member of a Gang, a prosecutor must prove (1) that the defendant actively participated in or was a member of a criminal street gang; (2) that the defendant knowingly and willfully participated in a specifically enumerated criminal act; and (3) that the predicate criminal act was committed for the benefit of, at the direction of, or in association with a criminal street gang.
A “criminal street gang” is any group of three or more persons, whether formal or informal (1) which has as one of its primary objectives or activities the commission of one or more crimes specifically listed in the law; (2) has an identifiable name or identifying sign or symbol; and (3) whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.
The punishment is prison for between 5 and 20 years and a fine of up to $100,000.00.

To prove Rape, the prosecutor must prove (1) that the defendant had sexual intercourse with another who wasn’t his spouse; (2) that it was against her will and without her consent; and (3) it was by force or intimidation. The punishment is a prison sentence from 5 years to life in prison. If there was no intercourse, the crime is not Rape, but can be Sexual Battery.

To prove Sexual Battery, the prosecutor must prove (1) that the defendant sexually abused the victim; (2) that it was against her will; and (3) that it was by force, threat or intimidation, or ruse. Unlike with Rape, the punishment is a Class 1 misdemeanor, punishable with a maximum penalty of up to 12 months in jail and a fine of up to $2,500.00.

To prove Carnal Knowledge, the prosecutor must prove (1) that the defendant engaged in at least one sexual act listed in the law with the victim; (2) that at the time the defendant was at least 18 years of age; and (3) that at the time of the act, the victim was 13 years of age or older but under 15 years of age. The punishment is between 2 and 10 years in prison and a fine of up to $100,000.00.

To prove Prostitution, the prosecutor must prove (1) that the defendant had sexual intercourse or sodomy with another person not his wife; (2) that it was for money or money’s equivalent. It is a Class 1 misdemeanor, punishable with a maximum penalty of up to 12 months in jail and a fine of up to $2,500.00.

To prove Robbery, the prosecutor must prove that the defendant intended to steal; (2) that defendant took personal property; (3) that the taking was from the victim or in his presence; (4) that the taking was against the will of the owner or possessor; and (5) that the taking was accomplished by violence to the person (or intimidation, threat of serious bodily harm, or threat of a firearm or deadly weapon). The punishment is between 5 years and life in prison.

To prove Carjacking, the prosecutor must prove (1) that the defendant seized a motor vehicle of another; and (2) the defendant acted with intent to permanently or temporarily deprive another in possession or control of that vehicle of that possession by a series of violent acts listed in the law. The punishment is between 5 years and life in prison.

To convict one of DUI or DWI, a prosecutor must prove (1) that the defendant was operating a motor vehicle; and (2) that at the time of operation he either (a) had a blood alcohol concentration (“BAC”) of 0.08 or more, (b) he was “under the influence of alcohol,” (c) he was “under the influence” of a narcotic or other self-administered intoxicant or drug or a combination of such drugs to a degree which impaired his ability to operate a motor vehicle safely; or (d) he was under the combined influence of alcohol and any drug or any combination of such drugs to a degree which impaired his ability to operate a motor vehicle safely.
There are related offenses, such as “Involuntary Manslaughter,” where an alcohol-impaired individual is in an accident that results in death of another. Also, “Refusal of Tests” results in a civil penalty. One commits this violation by refusing to submit to a blood or breath test after being arrested for DUI. The punishment is a one year license suspension in addition to any punishment for the underlying DUI.

Typically, however, DUI is a Class 1 misdemeanor. The punishment is up to 12 months in jail and up to a $2,500 fine. The mandatory minimum punishment, for a first offense with a low blood alcohol level from a breath or blood test is (1) a one year driving license suspension; (2) successful completion of a substance abuse program called the Virginia Alcohol Safety Action Program (VASAP); and a fine of at least $250.00. Regarding the license suspension, the judge is authorized to reissue a restricted license, allowing one to drive to and from work and other limited trips during the license suspension period.

If one’s blood alcohol level tests at 0.15 or more, the mandatory minimum sentence includes 5 days in jail. Conviction with tests over 0.20 result in mandatory minimum jail of 10 days. Mandatory jail increases based on prior DUI convictions.

Under some circumstances, including two prior DUI convictions, a DUI can become a felony.

To prove Hit and Run, the prosecutor must prove (1) that the defendant was the driver of a vehicle which he knew was involved in an accident; (2) that the accident caused the injury or death of another; (3) that the defendant knew, or should have known that anther person was injured by the accident; and (4) that the defendant failed to do any of the following: (a) stop immediately as close to the scene of the accident as possible without obstructing traffic; (b) render all reasonably necessary assistance to any person injured in the accident; or (c) report his name, address, driver’s license number and vehicle registration number forthwith to the State Police or local law enforcement agency or to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or the custodian of other damaged property. The maximum punishment is up to 10 years in prison, but the punishment can be considerably less severe if the person is not injured or if no other person is involved in the accident — such as with a collision with an empty, parked car.

Reckless Driving is a series of laws related to fast or dangerous driving.  The most common form of Reckless Driving is driving at a high speed.  If one exceeds the speed limit by 20 miles per hour or more, this is “Reckless Driving” even if the driver is handling the speed particularly well.  Speed alone makes the crime.

The second most common form of Reckless Driving are cases involving collisions.  This is one of the larger errors in Virginia criminal procedure.  Some police officers charge almost every accident as “Reckless Driving” when, in fact, that crime had not been committed.  Not every traffic accident is the result of Reckless Driving, no matter what the local police may think.

The third most common form of Reckless Driving is generally bad driving.  These cases are decided on a case-by-case basis.

The penalty for Reckless Driving is a Class 1 misdemeanor — a crime on the same level as DUI, Petit Larceny, and simple Assault.  The maximum penalty is up to 12 months in jail and a fine of up to $2,500.  In addition, the judge has the power to suspend one’s driver’s license for up to 6 months.

To prove the crime of Trespassing, a prosecutor must prove that the (1) the defendant went on the land of another; (2) did so willingly, and (3) he had been forbidden to do so by the owner or person in charge or by a sign.

The most common defense is proof that a person was told not to be on another’s land.  It is not enough that one is simply on another’s property without permission.

The punishment for Trespassing is a Class 1 misdemeanor.  The maximum punishment is up to 12 months in jail and up to $2,500 in fines.

To prove Destruction of Property, a prosecutor must prove (1) that the defendant intentionally destroyed or damaged property; (2) that the property he damaged was not his own; and (3) the value of the property exceeds $1,000.00. The maximum penalty is up to 5 years in prison with no mandatory minimum sentence. However, if the value of the property was less than $1,000.00, the crime is a misdemeanor. There is an even lesser penalty if the defendant didn’t “intentionally” destroy the property but merely “unlawfully” destroyed it.

“Possession with Intent to Distribute” (PWID) marijuana, cocaine, ecstasy, or heroin are frequently charged drug crimes. Items such as scales, baggies, and larger quantities of drugs become the basis of such charges, even if the use was personal. To prove PWID, a prosecutor must prove that the defendant possessed with intent to distribute the drug. With the exception of Marijuana, the possession of which is a misdemeanor, almost all drug charges are felonies in Virginia. The maximum punishment for simple possession is up to 10 years in prison.

Oddly, whether a motor vehicle is involved in a drug case or not, most convictions of a drug offense also results in a mandatory driver’s license suspension for at least 6 months.

To prove possession of a drug charge, the prosecutor must prove that the defendant knowingly and intentionally possessed the drug. The type of drug determines the seriousness of the charge. Unsurprisingly, “Possession of Marijuana” is not nearly as serious as “Possession of Cocaine.” The key here is “knowing and intentional” possession. This can be hard for a prosecutor to prove and is the main defense in drug cases.

Oddly, whether a motor vehicle is involved in a drug case or not, most convictions of a drug offense also results in a mandatory driver’s license suspension for at least 6 months.

To prove Possession of Paraphernalia, a prosecutor must prove (1) that the defendant possessed drug paraphernalia listed in Virginia Code sec. 54.1-3466; and (2) that he did so under circumstances which reasonably indicated an intention to use the paraphernalia for purposes of illegally administering any controlled drug.

To prove Indecent Exposure, a prosecutor must prove (1) that the defendant intentionally made an obscene exposure of his private parts; and (2) that the act was done in a public place or a place where others were present. The punishment is that for a Class 1 misdemeanor — up to 12 months in jail and a fine of up to $2,500.00.

To prove that one was Drunk in Public a prosecutor must prove (1) that a defendant was drunk and (2) that he was in public. Both elements are particularly fact-based. “Drunk” can be as little as having consumed enough of an alcoholic beverage to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior. “Public” isn’t what many people think. Generally, if others can see you, you are in public.