This question is right up my alley. I am a professional in the
Virginia legal system and am in a position to give you a legal
interpretation of the statutes you mention and answer your questions,
however, I am not an attorney and you should not infer any
recommendation or accept my answers as legal advice. Only a licensed
attorney can render legal advice to you.
That being said, let's get down to business.
1) A violation of § 18.2-96, or, petit larceny is a misdemeanor,
provided you do not have more than 2 previous adult convictions of an
offense that is deemed larceny, such as shoplifting, concealing
merchandise, etc. I will assume you don't based on what you've said. A
violation of § 18.2-178 with the amount in question being less than
$200 is a misdemeanor. Another way for you to look at it is, if your
warrants are yellow or pink, then they are misdemeanors. If your
warrants are green, they are felonies. Virginia conveniently color
codes it's legal processes for fast identification by judges and
2) The courts should only have access to your adult records in this
case. In certain instances, courts can request access to juvenile
court records, but this is usually only in the case of violent
felonies, and because your records are out of state, this increases
the likelihood that even if your charges were a violent felony, the
state holding these records is not likely to release them to another
state's agency or court. The summary though is, you needn't worry
about the court requesting these records, and you're not under any
obligation to answer any police questions regarding your criminal
record. However, you should keep in mind that if you elect to testify
on your own behalf in court, you will likely be under oath and could
face perjury charges if you answer any question falsely.
3) You would NOT be eligible for probation under this statute.
Articles 5, 6, 7, and 8 of Chapter 5, Title 18.2 are crimes against
property. Article 5 deals with trespassing issues, Article 6 deals
with damage to realty issues, Article 7 deals with damage to personal
property issues and Article 8 deals with offenses relating to railroad
and utility companies. The crimes you have been charged with commiting
fall under Article 3, Chapter 5 of Title 18.2 (§ 18.2-96) and Article
2 of Chapter 6, Title 18.2.
4) Based on my answer above, this question has no applicability. If
you were convicted, the record of conviction would be entered by the
clerk of court and reported to the Virginia State Police
5) The individuals/victims in question would have to file the motions
with the court. You would not be able to file it on their behalf under
§ 19.2-151. Additionally, the court does not have to accept the
complainant's petition. This statute is only discretionary in nature,
not compulsory upon the court. In either event, you would be required
to appear in court at all proceedings unless implicitly instructed not
to by a member of the court, otherwise, you face possible penalties
under § 18.2-416 and/or § 19.2-128.
6) The expungement statute you provide is very useful for those
accused of committing a crime but not convicted. For example, if you
were arrested by a law enforcement officer, you were most likely
'booked' or taken to the jail or police department, photographed and
fingerprinted. The record of your arrest is recorded instantly with
the Virginia State Police and becomes a permanent part of your
criminal record. The court can then update the VSP and indicate with
them the final result of the case, whether you were convicted or the
case was dismissed or some other disposition. (See Answer #4) If your
case is dismissed (sufficient evidence to establish guilt beyond a
reasonable doubt is unfounded or for technical reasons), you are
acquitted (found not guilty) or your case is ordered 'nolle prosequi'
which means Not Prosecuted, you can apply for relief under this
statute with the Circuit Court. If the judge finds reason to, they can
order an expungement directing the clerk and state police to destroy
all records related to your conviction. Also, according to the
statute, "if the petitioner has no prior criminal record and the
arrest was for a misdemeanor violation" they may receive relief under
this statute. However, if you are convicted, most likely the court
will not grant you relief under this statute until a reasonable time
had passed, unless you had been pardoned by the Governor. The reason
for this interpretation is based on a precedent decision in Snyder v.
City of Alexandria which stated "This section [19.2-392.2] applies to
innocent persons, not to those who are guilty." See that case for
further details. It's case numbers are 870 F. Supp 672 (E.D. Va.
Some useful links for you:
Supreme Court of Virginia - http://www.courts.state.va.us
Virginia Code and Laws -
Virginia State Bar Association - http://www.vsp.org/
I hope this question has been helpful, and I'd be glad to help you
with any other questions regarding interpretation of Virginia
statutes, cases, etc. As I said before, I am a professional in the
Virginia legal system.
Good luck and kindest regards.
Request for Answer Clarification by
23 Mar 2004 09:34 PST
Not a clarification--I just couldn't figure out how to make a comment.
I wanted to share my experience with the courts and the resolution of my case.
Realizing I made too much money to qualify for a free attorney, I
found one who would accept my case for a fixed fee. The guy was great,
and practices in both VA and DC; does misdemenor, felony, and federal
cases. His website is at:
http://www.lawyers.com/nicewiczlaw. I highly recommend him.
In preparation for my court case, I began seeing a psychologist. My
psychologist, along with my employer, a professor, and an organization
that I had done volunteer work for--wrote letters of recommendation on
my behalf. I did not share with any of them the reason I needed these
LORs. I took the LORs with my college transcript and letter from the
dean congratulating me on my fine work in the past semeter, and gave
them to my attorney.
One of the screwy things about Fairfax County is that your attorney
can't see what evidence the state has against you until the day of the
trial--not like what you see on TV. Then, your attorney gets the
opportunity to talk to the officers involved as well as the
Commonwealth's attorney. The Commonwealth will also subpoena witnesses
to appear (they did show too).
On the day of my trial I went to the Fairfax County courthouse and met
my attorney in the morning. The case was 'held over' which means that
the judge won't hear the case, even though you are listed on the
docket (your attorney will ask for this). The judge then hears the
case when the Commonwealth's attorney requests it.
In Fairfax County, there are two alternate programs for first time
misdemeanor offenders: the OAR Community Service Restitution Program
(CSRP), for jirst time shoplifters; and the Prescriptive Sentencing
Program (PSP), which I believe is for non-shoplifting offenses. In
both programs, the charges are dismissed after you do community
service and stay out of trouble in the mean time.
See: http://www.co.fairfax.va.us/courts/cjsdesc.htm for details.
My attorney met with the Commonwealth's attorney, presented my LORs
and got the CA to agree to the PSP program, even though I didn't
normally qualify (per my attorney, due to the fact that there was more
than one charge). Also, normally, you have to go and interview for the
programs, but I didn't, probably because of the information already on
my letters (have job, ties to the community, etc.).
The Commonwealth's attoryney then presented the case to the judge. I
pled guilty to the charges and the charges were continued for a period
of four months for me to do my community service. The judge asked me
if I realized I was getting quite a break and I replied, "Yes, sir".
After that time period, I have to appear before the judge with proof
that I did the community service. Then, the judge will dismiss the
charges. The end result is that I will be able to say "NO" to the
question, "Have you ever been convicted of a crime?".
However, since I was convicted (at least for now), I was processed by
the Sheriff's office. This means that my fingerprints and my picture
taken. These were entered into the NCIS National Crime database. So,
every time I get pulled over by a cop, my information pops up--even
after I get my charges dismissed...for the rest of my life (or when I
turn 80). Plus, these public records are available for everyone to see
forever, and may, in fact, show up in my credit report for the rest of
Things to keep in mind:
1. Suit and tie for court.
2. Get LORs from employers, priest, psychologist, volunteer, etc.
3. Get an attorney. Now is not the time to be cheap and attempt to
represent yourself. In fact, the Commonwealth's attorney will refuse
to meet with you due to their policies. Borrow the money!
4. Pleding guilty/getting the charges dismissed---this record cannot
be expunged. It will remain forever (unless the VA legislature changes
the law regarding expungement).
5. "Yes, your honor" not "Yeah", as I heard some defendants say.
6. Take the whole day off for court. Court start at 9:30, but my case
wasn't heard till near Noon, and I wasn't processed until 2:30 PM.
Then, I went to the OAR PSP across the street to get an appt. (they
recommend you do it the same day, as long as you are there).
7. OR, you can call the OAR or PSP program before your court date and
request an appointment. They have a one month waiting list--that makes
it a little hard to get your full hours in when you lose a month
waiting... 703-246-3033 for both OAR PSP and OAR CSRP.
8. Get a PO Box for court mailings and receiving correspondence from
your LORs and attorney to protect your privacy at your residence.
What important things did I learn?
1. Don't ever talk to the police.
2. See #1. They will only use what you say against you.
3. Whatever it is, it's not worth it. Trust me.