Criminal Defense FAQ
FAQs About Criminal Defense
The Criminal Justice System can be confusing, and certainly stressful for those facing criminal charges. Below are some Frequently Asked Questions – and answers – from our Criminal Defense Attorneys.
When Should I Hire a Lawyer?
The sooner you hire a lawyer, the sooner they can start working on your behalf. That may mean things like arranging for you to turn yourself in (if there is a warrant for your arrest), filing bond motions, filing for discovery, and investigating your case. If you are facing criminal charges, contact our Virginia Criminal Defense Attorneys to see how we can help you.
How Much Does A Criminal Defense Attorney Cost?
The cost of legal services varies from case to case, depending on the facts. In a criminal case, that will include things like the locality, the jurisdiction (is this a state or federal case?), the severity of the charge(s), and the amount of charges.
For Criminal Defenses cases, typically the cost will be an agreed upon flat fee, meaning that the cost doesn’t change, and there is no “hourly billing.” In a Misdemeanor case, there is typically just one flat fee. However, for Felonies, it is common for the fee to be broken up. One agreed upon fee will cover up to a Preliminary Hearing (see below). Then there is a second fee that will cover, if necessary, a Trial. If a case is going to be resolved without a trial, we will typically know this by the Preliminary Hearing. Breaking up the fees this way allows for greater flexibility so that you don’t have to pay unnecessary trial fees for a case that we can resolve ahead of time.
We understand that facing criminal charges is a uniquely stressful and unanticipated situation.
Contact Us today to learn how we can help you.
What is Nolle Prosequi?
Nolle Prosequi is a motion the Commonwealth makes to ‘dismiss’ your case. Or more specifically, to not prosecute your case.
What is a Preliminary Hearing?
Va. Code 19.2-218 states:
No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused.
Felonies are tried in the Circuit Court of the relevant jurisdiction. But prior a Trial, there will be several proceedings and hearings in the General District Court. Among there are an Arraignment and a Preliminary Hearing.
At a Preliminary Hearing, the Commonwealth will put on evidence to establish Probable Cause. This is a fairly low standard, and this hearing is not your Trial. But this may be the first time you and your attorney are can see (at least some of) the Commonwealth’s evidence, and to hear the testimony against you. This is useful information in preparing your case.
Our Criminal Defense attorneys have experience with Preliminary Hearings, and are ready to help you. Contact Us.
What is an Indictment?
An Indictment is “a written accusation of crime, prepared by the attorney for the Commonwealth and returned “a true bill” upon the oath or affirmation of a legally impanelled grand jury.” Va. Code 19.2-216
“The indictment or information shall be a plain, concise and definite written statement, (1) naming the accused, (2) describing the offense charged, (3) identifying the county, city or town in which the accused committed the offense, and (4) reciting that the accused committed the offense on or about a certain date. In describing the offense, the indictment or information may use the name given to the offense by the common law, or the indictment or information may state so much of the common law or statutory definition of the offense as is sufficient to advise what offense is charged.” Va. Code 19.2-220
Can I Expunge My Charge?
Virginia does not expunge convictions.
You may be able to expunge previous charges that were dismissed, or “nolle prossed.” However, certain charges that were dismissed with a deferred disposition or other outcome that involved a finding of guilt (but not a guilty verdict) cannot be expunged.
To find out if we can help you expunge your past charges, contact our Criminal Defense attorneys.
How Long Does a Protective Order Last in Virginia
In Virginia, there are 3 different “types” of Protective Order. There is an Emergency Protective Order, a Preliminary Protective Order, and a Permanent Protective Order.
An Emergency Protective Order lasts 3 days, and will expire at the date and time listed on the protective order, for instance “11:59 PM on Wednesday the 3rd.”
A Preliminary Protective Order lasts, generally, 14 days. A Preliminary Protective Order can be extended until there is a full hearing on the Protective Order. A Preliminary Protective Order will have a hearing date on it. That is when the Respondent (person who the Protective Order is against) will be able to tell a Judge their side. A Respondent has a right to continue (postpone) the hearing, and if they do, the Preliminary Protective Order will remain in place until the hearing.
At this hearing the Protective Order will either be dismissed, and will become ineffective immediately, or a Judge will grant the Permanent Protective Order. Despite the name, a Permanent Protective Order lasts for 2 years in Virginia, but can be renewed at the conclusion of each two year period.
Learn more about how our attorneys can help you obtain, or fight, a Protective Order in Virginia.
I Have A Protective Order Against Me, What If The Other Person Reaches Out?
Protective Orders frequently come up between family members and romantic partners. Often, after a Protective Order is granted, the Petitioner (the protected party) may decide they feel differently, and start reaching out to the Respondent (the restrained party).
This is a big risk if you are the respondent of a Protective Order. These are Court Orders and whatever your girlfriend, boyfriend, sibling, friend, or anyone else decides does not change the fact the the Court has ordered you to have no contact and stay away.
Here’s what that means: “She called me first!” “We hung out just last week!” are not justifications that will prevent you from being arrested and charged with Violating a Protective Order.
Can I Dissolve, Modify, or Change a Protective Order?
Va. Code 19.2-152.10(H) allows for the Dissolution or Modification of a Protective Order, saying
Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to modify or dissolve a protective order shall be given precedence on the docket of the court. Upon petitioner’s motion to dissolve the protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable.
This is the only appropriate way for either party to address changes in their relation or need for a Protective Order. The parties themselves cannot simply agree not to abide by the Order anymore. Only the Court can make that change. Otherwise, the Respondent remains at risk of arrest and prosecution.
If you think you need a Protective Order dissolved or modified, contact our office.
Can I Appeal My Misdemeanor Conviction?
If you have been convicted of a Misdemeanor you have 10 days to appeal your conviction. Your appeal will be heard in the Circuit Court, de novo, meaning the the case is re-heard with no regard for what the outcome of the previous proceeding was. These appeals are heard as a matter of right, so any misdemeanor can be appealed, so long as it is done in the 10 day time frame. For this reason, time is of the essence.
Our Criminal Defense attorneys have experience litigating criminal cases in the Circuit Court, including appeals. Contact Us to see how we can help you.
What is the Statute of Limitations in Virginia?
The Statute of Limitations in Virginia for a Misdemeanor is 1 year. The exception to this is Petit Larceny, which has a 5 year Statute of Limitations.
There is no Statute of Limitations for Felonies in Virginia.
How Much Time Will I Serve?
How much jail or prison time you will actually serve depends on a few factors.
First, when you are sentenced, the Judge may “suspend” some or all of your sentence. This is time that you will not serve, as long as you comply with ‘good behavior’ and any other condition the Court places on you.
For a Misdemeanor, you will generally serve half of your active (not suspended) sentence.
For a Felony, you will generally serve 85% of your active (not suspended) sentence.
Virginia does not currently have a “65% Law” for Felonies.
Why Am I In Federal Court?
If you live in Northern Virginia, there is a fair chance that you may end up in Federal Court – the Eastern District of Virginia – even for seemingly minor charges and violations.
While many cases end up there because they are fully federal offenses that would be in Federal Court regardless, sometimes it is just because our community is permeated by federal land and property.
For instance, GW Parkway is federal land, and even a speeding ticket there is handled in Federal Court. There are also several military installments in the area, such as Ft. Belvoir, and charges that touch on those locations will end up in federal court. So instead of being pulled over or cited by local police, you may be getting a ticket or summons from the United States Park Police, or other federal agency.
Our office handles offenses in Federal Court ranging from traffic violations, to DUIs and more serious criminal charges. Contact Us to see how our Criminal Defense attorneys can help you.
Crimes and Offenses
What Is Reckless Driving in Virginia?
In Virginia, Reckless Driving is a Class 1 Misdemeanor.
One of the more frequent ways to get a Reckless Driving is by speed. You can be charged with Reckless Driving by Speed two ways. First, any speed 85 M.P.H. and over – no matter the road and speed limit– this means I-95 and similar interstates. Second, any speed 20 M.P.H and over the posted speed limit.
Should I Hire A Lawyer for Reckless Driving in Virginia?
While it may seem like a regular ticket, Reckless Driving is a criminal charge and if it isn’t contested it will result in a criminal conviction that cannot be expunged from your record.
If you have previous Reckless Driving convictions, or your alleged speed was particularly high (over 90 m.p.h.), the Commonwealth may seek some amount of jail time for your charge.
A qualified local attorney may be able you fight this charge. First, there are things you can do to mitigate your alleged speed. Second, conversations between your lawyer and the prosecutor may be useful in getting the charge reduced to a regular speeding ticket, if appropriate.
Reckless Driving in Virginia is a criminal misdemeanor and should be taken seriously. Contact Us to learn how our Criminal Defense attorneys can help you.
What is the Difference Between Grand Larceny and Petit Larceny?
Criminal Defense: Know Your Rights
Do I Have To Do Field Sobriety Tests (FSTs)?
You are not required to perform Field Sobriety Tests (FSTs) if you are suspected of DUI. You may be asked to do these, and the Office may suggest that you can prove your innocence by doing them. This can be risky. There are three widely accepted, or Standard, Field Sobriety Tests (SFSTs)
- Horizontal Gaze Nystagmus (HGN)
- Walk And Turn (WAT)
- One Leg Stand (OLS)
The HGN is the test you may be familiar with where the Officer passes a pen or similar object in front of the subject’s face, and instructs them to follow it with their eyes. They are looking for “nystagmus” or small involuntary shaking/jerking of the pupils/eyes as the eyes scan back and forth, as well as when that shaking sets in.
The Walk and Turn is the test where an Officer will instruct you to take some amount (9 is common) of steps in a straight line, heel-to-toe, turn around in a set way (commonly by taking many small steps/pivots), and then going back. They are looking to see if you can maintain your balance, take the correct amount of steps, consistently touch heel-to-toe, and importantly, listen to instructions. They will also commonly have you stand heel-to-toe while they give instructions, to divide your instructions.
The One Leg Stand requires you to stand on one leg, with the other raised 6 or so inches off the ground. You are expected to balance like that, keeping your arms at your side, while counting to 30 by “One-one thousand, two-one thousand, three-one thousand” etc. This is also meant to divide your attention between counting, and the task at hand. The officer will be looking to see if you put your foot to the ground, and if you raise your arms above your waist, as well as your ability to follow the counting instructions.
While these tests are backed up by some science and studies, they are also very heavily subject to the capability of the test administrator, the Officer, and are sensitive to non-ideal conditions: cars and sirens and other stimuli affecting your eyes and distracting you, any tiredness or physical fatigue you may be experiencing. They are become much less reliable when they are not administered absolutely correctly.
Those are the three “Standard” tests. Other tests include being asked to recite (not sing!) the alphabet, but starting from a letter other than A, and ending at a letter other than Z, or counting up and down your fingers, touching your thumb to each “1-2-3-4-4-3-2-1”.
You have every right to refuse these tests (and to decline to answer any questions).
Do I Have to Do a Breathalyzer?
If you are suspected of DUI, you may be offered a Preliminary Breath Test. This is the handheld machine an Officer may use on the side of the road.
This test is not mandatory, and you may refuse it. In fact, while the results may be used in court to determine Probable Cause, they cannot be used to establish your guilt.
However, under Virginia law, you are required to perform a Breath Test at the Police Station that is official, and those results can be used against you in Court. Refusal of that test is a separate Charge from DUI, and carries it’s own penalties. The first offense results in an administrative suspension of your license. The second offense is a Misdemeanor.
Our Criminal Defense attorneys have experience litigating DUIs across Northern Virginia, Contact Us to see how we can help you.
Should I Talk to the Police?
When you are involved in a Police investigation, it is generally best not to speak unnecessarily. Putting aside a routine traffic encounter where some pleasantries may be appropriate, you do not need to speak to the police other than to identify yourself if asked.
For many people who do not have occasion to interact with Police too often, it can feel unnatural, rude, or otherwise wrong not to talk to a person who is asking you questions. But Police interactions are different than any other, and there is nothing wrong with simply remaining silent. You may wish to express that you don’t want to answer and questions, or you may simply remain silent.
You cannot talk your way out of most Police encounters. If you are going to be arrested, or already have been, you cannot convince an officer to let you go. But by talking and trying to explain yourself or anything similar, you are likely to make incriminating statements – even if they seem innocuous, and even if you are totally innocent.