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Legal Rights in Virginia

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Right to Remain Silent

No person has to make any statements to police or other agents of the government. This means that if police ask questions of a person, that person can not be forced to make statements that would incriminate him. If a person does make statements, then those statements can be used against them at trial. This right does not include any ability to make statements to police that are untrue or misleading. If a person decides to remain silent, then that fact can not be held against them at trial.

Right to have a lawyer present during questioning.
Every person has a right to legal counsel when they have been arrested (or otherwise held in custody) and are being questioned by police. If a person has been asked to answer questions and requests that a lawyer be present to assist him, then police have to stop the questioning and can only continue once a lawyer is present. The questioning can also continue if the person asks to continue talking to police after asking for an attorney. Police cannot request that a person answer questions after that person has asked for an attorney to assist them.

Right to refuse to be searched.
A person has the right to refuse a search by law enforcement of their person, vehicle or residence. Police may only search if they have probable cause, if they already have a search warrant, or if they person allows them to search. If police ask a person for permission to search, that means that police want to search but do not have either probable cause or a search warrant. If the person refuses to allow the search, and the police search anyway, then whatever was found by that search could be suppressed and not allowed to be used at trial against the person. If a person refuses to allow police to search, that refusal cannot be used against the person at trial.

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Larceny in Virginia

 

Grand Larceny – Va. Code 18.2-95 – Prohibits larceny from the person of another of $5.00 or more in value, or larceny of goods that have a value more than $200. This offense is punished as an unclassified Felony (up to 20 years and up to $2,500 fine).

Petit Larceny – Va. Code 18.2-96 – Prohibits larceny from the person of another in an amount less than $5.00, or larceny of goods that is worth less than $200. This offense is punished as a Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine).

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Firearms Charges in Virginia

 

Possession or Transportation of Firearm by Convicted Felon – Va. Code 18.2-308.2 – Prohibits possession of firearms by any person who has been convicted of a felony is guilty of a Class 6 Felony (up to 5 years in prison and up to $2,500 fine);

  • If the person was convicted of a violent felony, then they must serve a mandatory minimum sentence of 5 years;
  • If the person was convicted of a non-violent felony within the past 10 years, then they must serve a mandatory minimum sentence of 2 years.
  • This statute also provides that a person who has been convicted of a felony can petition the Circuit Court to have his privilege to possess or transport a firearm restored.

Using Firearm during Felony in Virginia

  • Shooting in Commission of a Felony – Va. Code 18.2-53 – makes it unlawful and a separate charge for shooting a person during the commission of another felony. This charge is punishable as a Class 6 Felony (up to 5 years in prison, up to $2,500 fine).
  • Use or display firearm during a felony – Va. Code 18.2-53.1 Makes a separate offense if a person uses, attempts to use, or displays a firearm in a threatening manner during the commission of one of the felonies that are listed in the statute. These felonies include, but are not limited to, murder, rape, robbery, carjacking, burglary, malicious wounding and abduction.
  • Violation of this statute results in a mandatory prison sentence of three years for a first conviction, and five years for a second or subsequent conviction. This mandatory time is required to run consecutively to any other sentence;
  • The Commonwealth does not have to give notice in advance that they seek enhanced punishment under this code section;
  • The first and second convictions that would trigger the increased punishment can occur with multiple convictions in the same trial.

Illegal Possession of Firearm in Virginia

  • Possession of Firearm or Weapon on School Property – Va. Code 18.2-308.1 – Weapons other than firearms that are possessed on school grounds is punishable as a Class 1 Misdemeanor (Up to 12 months in jail and up to $2,500 fine);
  • Possessing a firearm on school grounds in VIrginia is punishable as a Class 6 Felony (up to 5 years in jail and up to $2,500 fine).
  • If a person uses, or displays a firearm in a threatening manner on school grounds, a five year mandatory sentence is required, to be served consecutively with any other sentence. Purchase or transportation of firearm by persons under protective order – Va. Code 18.2-308.1:4 – A person who transports or purchases a firearm while they are subject to a protective order is guilty of a Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine).
  • Possession of firearms with drugs – Va. Code 18.2-308.4 – A person who possesses any Schedule I or Schedule II controlled substance while possessing a firearm is guilty of a Class 6 Felony( up to 5 years in prison and up to $2,500 fine);
  • If the firearm is possessed on the person, there is a 2 year mandatory minimum sentence;
  • If the weapon is displayed in a threatening manner or used while the person is also distributing, manufacturing or possession with intent to distribute, of any Schedule I or Schedule II controlled substance, then a mandatory minimum sentence of five years is imposed.

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Felony Process in Virginia

 

Persons charged with a Felony in Virginia will go through a certain process in the courts. Not all of the courts in Virginia do things exactly alike, but some of the events are required by law and are present in every court.

Felonies in Virginia are tried in the Circuit Court. However these charges often start with an arrest or summons in the District Courts, either General District Court or Juvenile and Domestic Relations District Court.

Process in the district court begins with the arrest or summons. If a person is arrested, they will be brought before a magistrate to decide if they an be released on bond pending trial. If they are not, then they will see a judge in the morning, often by video, to discuss bond.

The next step is arraignment. If a person is held in jail, their arraignment will usually take place the first time they see the judge. Otherwise they will have to appear in the court room for arraignment. At the District Court arraignment a criminal defendant will be asked whether they are going to hire a lawyer or if they want to have a court appointed lawyer represent th em (if they qualify financially). At the arraignment a date for preliminary hearing will be set.

The preliminary hearing is a hearing where the District Court judge must determine if their is probable cause for the case to be certified to the Grand Jury. The prosecutor, or Commonwealth’s Attorney has to put on some of their evidence to establish probable cause that the defendant committed the crime for which he is charged. The Defendant does not have to put on ay evidence, and usually doesn’t at this stage, since it is the Commonwealth who has to prove probable cause. The Defendant can also waive their preliminary hearing, if they think it is advisable to do so. If the Judge finds probable cause, he or she will certify the case to the Grand Jury.

The Grand Jury
The Grand Jury meets every month or so to issue indictments. It consists of citizens who serve as grand jurors for a period of a few months. They hear testimony from police and argument from the prosecutor, or Commonwealth’s Attorney, and they issue indictments.

An indictment can be issued by the Grand Jury either from a case that was certified by a District Court judge or by what is called Direct Indictment by the Commonwealth’s Attorney. A person who is Direct Indicted does not go through any of the process in the District Court. A Capias is issued and the person is contacted and told to appear in the Circuit Court on Term Day.

On Term Day the accused appears in person in Court and sets a date for arraignment. The Term Day appearance is very brief, but there can be many recently indicted people present on each Term Day, which is usually held once per month or so.

Circuit Court Arraignment
At every hearing in the Circuit Court for felony cases there is a court reporter present to make a record of each case. At the Circuit Court Arraignment, the Judge explains all Trial Rights in Virginia, and this is recorded by the court reporter to make the record in the case.

After the Judge gives an explanation of each of Trial Rights in Virginia, each person is called up separately to be arraigned. Each person has to state on the record the following:

  • Whether they plead guilty or not guilty to the charge(s). At this stage everyone enters pleas of not guilty;
  • Whether they want to be tried by a jury or a judge. The Commonwealth’s Attorney or the Judge can also choose a jury trial instead of a judge trial (bench trial). It is common wisdom that juries are less likely to convict a person, but if they do convict their punishments are often harsher than a judge would give;
  • Whether the person understands what the Commonwealth has to prove before he can be found guilty;
  • Whether the person understands the potential range of punishment for each charge.

After this information is given, the Judge will set a date for trial.

Felony Trials in Virginia
If the trial is by jury, the jury must first be chosen and then empaneled. After that Jury and Judge trials are very similar. The Commonwealth’s Attorney goes first, as they have the burden of proof to prove the person guilty. They call witnesses and present evidence such as pictures, items, weapons, laboratory reports and trial aids. After the Commonwealth is finished putting on evidence the Defense Lawyer may make a motion to try to get some or all of the charges dismissed, by arguing that the Commonwealth has not proven it’s case against the person. If there are charges that remain after this, the Defense Lawyer then puts on witnesses and presents his evidence. After the Defense is finished, the Commonwealth has the opportunity to present rebuttal evidence, and may call witnesses to the stand and present other evidence again. Once both parties are finished presenting evidence, the attorneys argue the facts that were presented, which facts the judge or jury should believe, and how those facts apply to the law. After arguments are made by both sides the judge or jury will render a verdict of guilty or not guilty. Sometimes the jury can not reach a verdict, and this hung jury results in a mistrial. After a mistrial the Commonwealth’s Attorney can try the case again with a different jury.

If the person is found not guilty of all charges, then the cases are over. If they are found guilty of any charge(s), then in the case of a jury trial a sentencing hearing is held, usually immediately. After the sentencing hearing in from of the jury the jury will deliberate and fix a punishment for the conviction.

If the trial was held by a judge without a jury, the case would instead be set for a sentencing hearing. This sentencing hearing is set for the jury trials also, but the jury does not need to be present for it. The judge orders a pretrial report, or background examination of the convicted person that includes sentencing guidelines. At the sentencing hearing both sides may once again put on evidence that relates to sentencing (although the Commonwealth is limited in the evidence they can put on), and the judge pronounces the sentence.

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Drug Offenses in Virginia

 

There are a number of substances that are illegal in Virginia. They are classified as Schedule I or Schedule II controlled substances in the Virginia Code ( sec 54.1-3446, 3448), with the exception of Cannabis, or Marijuana (not including Hashish) which enjoys a special category of drug offense as the only intoxicant that is a misdemeanor to possess and is not considered a controlled substance in Virginia. Drug Possession

Drug offenses come in two forms, Possession and Distribution. To find a person guilty of possession, the Commonwealth’s Attorney has to prove that the substances found were in actually illegal, that the person knew that the substances were illegal drugs, and that the person exercised control over the drugs. Usually this information is gathered from people making statements that show their guilt or allowing police to search a car, their person, or their home. Many charges could be avoided if people exercised their right to not incriminate themselves and their right to be free of unreasonable searches.

Constructive Possession
If the illegal drugs are not found directly on the person or in some kind of container, such as a purse or backpack that is being held by the person, then the case is constructive possession. Constructive possession is harder for the government to prove, as it requires more than just that the drugs were found in a person’s house or car. The Commonwealth has to prove that the Defendant made some effort to hide or get rid of the drugs, that they were found in close proximity to the person, or the person made some statement that incriminated him.

Drug Distribution
Distribution is the act of giving an illegal substance to another person. Accommodation is the act of giving illegal substances to another person but doing so without any expectation of profit, for example sharing drugs with someone. Accommodation is a part of the Distribution statutes but it places the burden on the Defendant to show that the act of Distribution was actually an Accommodation. Distribution charges have different levels according to the amount of drugs involved or transported. The Distribution statutes also include the acts of making, manufacturing and Possession with Intent to Distribute.

Fourth Amendment Rights
Every person has a right to be free from unreasonable Searches. This means that no person has to allow the police to search their person, their car or their home. The fact that a person does not allow police to search cannot be used against them at trial. There are times when police can search without permission, Police are trained to know when they can search without permission, and the steps they need to do that, for instance obtaining a search warrant. If police ask if they can search, then they know that they cannot search without permission, and want to search. If police want to search a person and they are legally justified in doing so, they are not going to ask for permission to search. There is no reason to agree to be searched by police.

Fifth Amendment Rights
Every person has a right to not make incriminating statements. Police are trained to get a person to make statements, and often a case that ends in conviction is based largely on incriminating statements made by the defendant. It is a crime to lie to police in an effort to hinder their investigation, but it is not illegal to refuse to make a statement or to refuse to answer a question. A person’s refusal to make statements can not be used against them in a criminal trial. There is no reason to make incriminating statements to police.

Every drug offense requires a six month mandatory loss of driver’s license in the State.

Marijuana, Cannabis

  • Possession of Marijuana – Va. Code 18.2-250.1 – is punishable as a Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine), however a first conviction for marijuana is subject to a maximum punishment of 30 days in jail and up to $500 fine;
  • Distribution of Marijuana – Va. Code 18.2-248.1 prohibits the sale, gift, distribution or possession with intent to sell, give or distribute marijuana. Up to one half ounce – Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
  • More than one half ounce but no more than five pounds is a Class 5 Felony (1 day to 10 years in prison, up to $2,500 fine);
  • More than five pounds is an unclassified felony punishable by 5 years to 30 years in prison;
  • Accommodation is punished as a Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
  • Growing marijuana is punishable as an unclassified felony punished by 5 years to 30 years in prison;
  • Third or subsequent felony violations are unclassified felonies punishable by 5 years to life in prison, up to $500,00 fine and a mandatory minimum sentence of 5 years;
  • Medical Marijuana in Virginia – Va. Code 18.2-251.1 – While Virginia does not allow medical marijuana for any purpose with a valid prescription as other states do, Virginia does allow medical marijuana with a valid prescription to treat cancer or glaucoma.

Schedule I or Schedule II Drugs

  • Possession of controlled substances is made illegal by Va. Code 18.2-250. This code section makes possession of all scheduled, controlled substances illegal but this section is only going to cover felony possession, or possession of schedule I or schedule II drugs.
  • Possession of a Schedule I or Schedule II controlled substance, without a valid prescription, is punishable as a Class 5 Felony (one day to five years in prison, up to $2,500 fine);
  • Distribution of Schedule I or Schedule II drugs – Va. Code 18.2-248 – makes it illegal to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance or imitation controlled substance. This offense is punished as an unclassified felony, five to forty years in prison and a fine of up to $500,000;
  • Second offenses are punished as unclassified felonies, and the range of punishment is five years to life in prison and up to $500,000 fine.
  • A third offense under this statute is an unclassified felony with a punishment of five years to life in prison, and up to $500,000 fine and includes a mandatory minimum punishment of five years.
  • Enhanced punishment is also required by the code if the quantity of drugs involved is over a certain amount. This enhanced punishment is an unclassified felony, five years to life in prison, and up to $500,000 fine, with five year mandatory minimum punishment, as follows:
    • 100 grams or more of heroin;
    • 500 grams or more of a substance containing cocaine. Coca leaves or Ecgonine (a chemical related to cocaine that is found in the coca leaf);
    • 250 grams or more of cocaine base;
    • 10 grams or more of methamphetamine or 20 grams or more of a substance that contains methamphetamine;
  • Manufacture of Methamphetamine is punished as an unclassified felony, five to forty years in prison and up to $500,00 fine;
    • Second offense is punished as a unclassified felony, 10 years to forty years in prison and up to $500,000 fine;
    • Third offense of manufacturing methamphetamine (or less than 200 grams in a mixture) is punishable as an unclassified felony, 10 years to forty years in prison and up to $500,000 fine with a three year mandatory minimum sentence;
  • Accommodation – Distributing Schedule I or Schedule II drugs as an accommodation, and not for profit, is punished as a Class 5 felony ( 1 day to 10 years in prison and up to $2,500 fine);
  • Distribution, manufacturing or intention with intent to distribute Larger Quantities of Schedule I or Schedule II drugs is punished as an unclassified felony, 20 years to life in prison with up to $1,000,000 fine and mandatory minimum sentence of 20 years in prison, for the following amounts:
    • 1 kilogram or more of heroin
    • 5 kilograms or more of a mixture or substance containing cocaine;
    • 2.5 kilograms of base cocaine;
    • 100 kilograms or more of marijuana;
    • 100 grams or more of methamphetamine;
  • Kingpin Statutes provide for enhanced punishment (20 year mandatory minimum sentence) for an ongoing distribution organization for the principal or leader of the organization if they received at least $100,000 but not more than $250,000 in a 12 month period, or if during a 12 month period they distributed, manufactured or possessed with the intent to distribute
    • 1 to 5 kilograms of heroin;
    • 5 to 10 kilograms of cocaine;
    • 2.5 to 5 kilos of cocaine base;
    • 100 to 250 kilograms of marijuana;
    • 100 to 250 grams of methamphetamine;
  • The Kingpin statue contains enhanced punishment (mandatory life in prison, or 40 years mandatory if the person cooperates with police) for leaders or principals of organizations that earn more than $250,000 in any 12 month period for distribution, manufacture or possession with intent to manufacture or for the same actions with the following quantities of drugs in a 2 month period:
    • 5 kilograms or more of heroin;
    • 10 kilograms or more of cocaine;/li>
    • At least 5 kilograms of cocaine base;/li>
    • At least 250 grams of methamphetamine.

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There are many pages in this website that are devoted to giving information about various topics in the law. This information is not meant to constitute legal advice and should not be considered legal advice for any reason. Anyone faced with a legal problem addressed in the pages of this site should contact the Law Offices of Joseph T. Brown PLC for a consultation.