DWI Cases: What Does Driving Mean in a DUI Context?

Virginia classifies cases such as reckless driving or driving under the influence, also known as driving while intoxicated as Class 1 misdemeanors.  By definition, in order to convict an individual of DUI or DWI in Virginia requires that the individual be “driving”.  Recently, the Supreme Court of Virginia had the opportunity to define whether this means that the police officer must literally observe the person driving the vehicle.  The case was Rix v. Commonwealth.

In that case, a police officer observed a vehicle “weaving” on Interstate 264 in the City of Virginia Beach. He stopped the vehicle and approached it. While doing so, he saw the driver exchange seats with the front-seat passenger. The driver, who had been behind the steering wheel while the car was in motion, was in the passenger seat when the officer reached the car. The former passenger was the defendant whom the officer found sitting in the driver’s seat behind the steering wheel. The keys were in the ignition and the engine was running.

The officer had the defendant step out of the car. She had a strong odor of alcohol about her person, and exhibited slightly slurred speech. Her eyes were bloodshot and glassy. She swayed when standing and walking. She refused to take a field sobriety test and told the officer that he could not arrest her because she had not been driving. The officer placed her under arrest and read her the implied consent law. She refused to take a breathalyzer test. Taken before a magistrate, the defendant was charged with operating a motor vehicle while under the influence of alcohol, second offense within five years, in violation of Code §§ 18.2-266 and 270 and with refusal to take a blood or breath test, second offense within ten years, in violation of Code § 18.2-268.3.

The defendant was convicted in general district court and appealed the convictions to the Circuit Court of the City of Virginia Beach. At a bench trial, Officer Womble admitted that he had not seen the defendant put the car in motion. Veselina Stoilova testified that she had driven the car but had asked the defendant to exchange seats
with her because she was driving without a permit. The defendant testified that she exchanged seats with the driver because she thought that the driver would face deportation if arrested. The defendant was convicted of both offenses. She appealed to the Court of Appeals. 

The issue on appeal was whether she was the operator of a motor vehicle within the meaning of the relevant statutes.  Code § 18.2-266 makes it unlawful to “drive or operate” a motor vehicle while under the influence of alcohol to a degree that impairs  one’s ability to drive safely. Code § 46.2-100 includes within the definition of an “operator [of a motor vehicle]” any person who is in actual physical control of a motor vehicle on a highway.

The Court observer that while the officer watched, defendant took actual physical control of a fully operational motor vehicle on a highway, with its ignition key in the “on” position and its engine running. She thus met the statutory definition of an “operator” of a motor vehicle. See Code § 46.2-100. Accordingly, the Court affirmed the conviction. 

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Abogado de Inmigracion Que Habla Espanol en Virginia

Si usted o un familiar ha sido detenido por Inmigración (ICE) es importante que actúe rápidamente para proteger sus derechos bajo la ley de inmigración.  Es importante que consulte con un abogado de Inmigracion que habla espanol en Virginia.  Hay posibilidad de que cualifique para detener el proceso de deportación. También hay posibilidad de que salga bajo fianza mientras el caso procede ante la Corte de
Inmigración. 

En Virginia hay una gran población de hispanos lo cual crea una necesidad de buenos abogados que hablen español. Por lo tanto, muchas firmas de abogados desean proveer servicios a los hispanos de Virginia.  Muchas firmas de abogados en Virginia anuncian que se habla español. Luego cuando llamas para hacer una cita con el abogado, te comunican con un asistente que tal vez habla bien español.

Un abogado de inmigración o deportación en Virginia le puede ayudar a resolver su caso exitosamente. Hay muchas defensas contra un caso de inmigración. Algunas de estas son: (1) la exención de exclusión y deportación (conocido como “waiver”, (2) cancelación de deportación de residentes permanentes, (3) cancelación de deportación de residentes no permanentes, (4) la suspensión de la deportación; (5) ajuste de estatus a residente permanente; (5) asilo y suspensión de deportación; (6) la legalización y registro y, como recurso final, (7) negociar la salida voluntaria. Visite nuestra pagina acerca de la defensa como abogado para casos de deportación en Virginia.

Bufete de Abogados Rivera

8527 Mayland Drive, Ste 107, Richmond, VA 23294

(804) 332-6585; Fax (866) 651-2004

Le podemos ayudar como abogado de inmigracion en Virginia, incluyendo residentes de los siguientes lugares: Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Prince George, Sussex, New Kent.

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Attorney Jacqueline Chiang

Jacqueline Chiang, Esq. earned a BA in English and Psychology from Northwestern University in Evanston, Illinois. She went on to earn her her law degree from the College of William and Mary School of Law. She was Executive Vice President of the Northwestern University National Society of Collegiate Scholars and began freelance web design during her undergraduate career. She is experienced in criminal defense and Internet law.  Jacqueline is licensed to practice law in the state courts of the Commonwealth of Virginia and in the Eastern District of Virginia.

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Virginia Supreme Court – Suppression of Evidence

Criminal cases in Virginia frequently involve issues related to Motions to Suppress Evidence.  Some of these cases are handled by Virginia attorneys, including Virginia Federal Lawyers.  Many of these cases involve the application of the Fourth, Fifth, and Sixth Amendments.  Recently, the Virginia Supreme Court reversed a conviction due to suppression issues.  The case was Brooks v. Commonwealth, Record No. 091047.  This Court came on Appeal from the Petersburg Circuit Court, in the Richmond VA area.

The Court articulated some important principles related to suppression of evidence.  The Fourth Amendment guarantees, in relevant part, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Warrantless searches of a person’s home are presumptively unreasonable. Glenn, 275 Va. at 130, 654 S.E.2d at 913 (citing Payton v. New York, 445 U.S.573, 586 (1980)). However, “[i]t is . . . well settled that one of the specifically established exceptions to the requirements of . . . a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness – what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). “The scope of a search is generally defined by its expressed object.”

In Miranda v. Arizona, 384 U.S. 436, 478 (1966), the Supreme Court of the United States held that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and
is subjected to questioning, the privilege against self-incrimination is jeopardized.” In such situations, a Miranda warning must be given to protect the privilege and the individual’s “right to the presence of an attorney . . . prior to any questioning if he so desires.” Id. at 478-79. In assessing whether the interrogation was custodial, we inquire “whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks omitted). We determine custody “based on how a reasonable person in the suspect’s situation would perceive his circumstances.” Yarborough v. Alvarado, 541 U.S. 652, 662 (2004).

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Resources

Virginia Legal Resources

Adoption

  • Virginia Department of Social Services – Provides useful information related to important topics, such as child protection, child support, spousal support, delinquency of minors, and various other services for families.

Divorce

  • Spare the Child — Prepared by a subcommittee of the VSB Family Law Section, suggests ways parents can “spare the child” from being harmed by parental conflict.
  • Child Support Calculators – Useful tool to utilize if you are trying to determine a parent’s support obligation to the child.
  • Courts in Virginia – Includes the contact information for the Virginia Courts as well as an application to obtain case information, and lots of other important Virginia legal information.
  • Military Legal Assistance Office Locator – Important for our military members.

Domestic Violence

  • Domestic Relations pamphlet — Metropolitan Richmond Women’s Bar Association has published this pamphlet to help you understand the general legal circumstances that you may face in resolving domestic relations problems under Virginia law.

Guardianship and Conservatorship

  • Guardianship and Conservatorship Proceedings for Incapacitated Adults — VSB Pamphlet for lawyers

Marriage

  • Marriage in Virginia — Pamphlet published by the Virginia State Bar Family Law Section

Pay and Allowances

  • Military members – How much does a person in the military earn?  What about allowances?  Its all here…
  • Military BAH Calculator – A tool to determine the basic allowance for housing.  This allowance, although not taxable, counted as income for many purposes including child support.

Parenting and Child Care

Virginia Lawyers

Legal

Business and Finance

Government

General

News

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Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).

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Trial By Judge or Jury?

Judge or jury trial?

As you get ready to prepare for your Virginia trial, you will need to ask yourself n important question… should I elect to be tried by a judge or  jury?

Of course, sometimes the Virginia prosecutor will ask for a jury trial.  In that case, a Virginia jury will hear your case.  However, when you have a choice of whether to be tried by a judge or by a jury in Virginia, you must consider the pros and the cons.

Generally and with the exception of some cases like sex offenses, a jury is more likely to acquit that a judge.  A Virginia lawyer from our firm can guide you through this tricky decision process.

Although a jury is generally more inclined to acquit, in particular when you are out on bail and they see you go in the courtroom, there are other considerations at play.  The most important of these is that in Virginia a judge may suspend part of your sentence… a jury may not.  This could be the difference between serving twelve months for a twelve month sentence or serving sixty days for the same sentence if the judge suspends ten months.  The following case demonstrates some of the interplay between the Virginia judge’s decisions and the jury.

When it comes to choosing whether to ask for a bench trial or a trial by jury, our attorneys can guide you through the process.

Return to the Virginia Criminal Case Frequently Asked Questions Page.

Contact a Virginia lawyer for Virginia law advice.

515 S.E.2d 307,30 Va.App. 1

Javier Jerome BATTS
v.
COMMONWEALTH of Virginia., Record No. 0592-98-4.

Court of Appeals of Virginia, Alexandria.

June 8, 1999.

Present: FITZPATRICK, C.J., LEMONS, J., and DUFF, Senior Judge.

FITZPATRICK, Chief Judge.

Javier Jerome Batts (appellant) was convicted in a jury trial of the use of a firearm in the commission of a robbery, in violation of Code § 18.2-53.1. 1 On appeal, he contends the trial court erred in instructing the jury to impose an enhanced punishment of five years for a second offense firearm conviction. For the following reasons, we vacate the five-year sentence reflecting the enhanced punishment and remand with instructions to enter an order imposing a three-year sentence on appellant’s firearm conviction.

I. BACKGROUND

On April 21, 1997, appellant was indicted for the robbery of Andrea A. Thomas and the use of a firearm in the commission of robbery. 2 A jury trial was set for August 6, 1997. Appellant filed a pretrial motion in limine seeking to prevent the Commonwealth from using an earlier firearm conviction

Page 310

as the predicate for imposing an enhanced penalty. In the earlier case, the jury returned a guilty verdict and although sentencing was set prior to the August 6 trial date in the instant case, [30 Va.App. 6] Judge Stevens continued the sentencing hearing in that case at the request of appellant’s trial counsel. 3

Appellant argued that because no final sentencing order had been entered on the earlier firearm conviction, the jury should have been instructed only as to the first offender sentence of three years. At that time, the trial court indicated it would resolve the dispute after the presentation of evidence. The Commonwealth then moved for a continuance, arguing that appellant should not be allowed to “manipulate the court system” by requesting ex parte a continuance of the first firearm sentencing hearing in order to avoid the enhanced punishment in the instant case. Noting that trial counsel’s actions “put the Commonwealth in a bind,” the trial judge initially granted the motion to continue.

In an extended colloquy between the trial judge and appellant’s counsel, counsel objected both to the continuance and the proposed jury instruction on the enhanced five-year punishment for the firearm charge. 4 Appellant

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ultimately “conceded[30 Va.App. 8] the point” and “agreed” to the five-year jury instruction rather than have the matter continued. At the conclusion of the evidence, the trial court reviewed the Commonwealth’s proposed Instruction G, which contained the mandatory five-year sentence on the firearm charge. When the trial judge asked counsel if he had any objection to the proposed instruction, counsel stated, “That’s acceptable.” The jury subsequently convicted appellant of the firearm offense and recommended the “five years mandatory fixed” sentence.

[30 Va.App. 9] Judge Alden continued the case to November 21, 1997, for the imposition of sentence. Prior to that time, Judge Stevens set aside the jury verdict on the firearm conviction in the first, unrelated case. Accordingly, appellant filed a motion to set aside the verdict in the instant case, alleging that the jury instruction was improper because it contained the enhanced punishment of five years.

On October 31, 1997, after the trial in the instant case but before the scheduled sentencing hearing, appellant was convicted of two additional firearm offenses resulting from another unrelated crime. In that case, the trial judge sentenced him to three years on the first offense and five years on the second offense.

At the sentencing hearing in the present case, Judge Alden denied appellant’s motions to set aside the verdict and imposed the mandatory five-year sentence. The trial judge found as follows:

All right, well, I’ve considered the pre-sentence report in this case, the sentencing guidelines, the jury recommendation, counsel’s arguments. Mr. Batts, I’ve considered your letter and the other facts and circumstances regarding the case.

And I conclude that the instruction, when given, was correct. Now, after the correct instruction was given, circumstances changed, which might have allowed me at a sentencing proceeding to exercise my discretion or may have required me to–I don’t know–to impose a lesser sentence

Page 312

than that the jury had imposed at the time it was instructed.

However, as it’s turned out in this case, I guess, it has gone full circle because even though the facts changed after the jury was properly instructed, by the time you get to the sentencing day, the facts have gone all the way around again and have come back to the beginning. So, I conclude, based on all of that, that the jury was properly instructed [30 Va.App. 10] and that today the sentence of the jury is the proper sentence to impose.

Accordingly, the trial judge imposed the five-year sentence on the firearm charge.

II. JURY INSTRUCTION

Appellant contends that at the time the jury was instructed to impose the mandatory five-year sentence for a second firearm offense, there was no predicate conviction because a final order had not been entered on the earlier firearm offense. Because the jury was instructed to impose a sentence greater than that authorized by statute, the instruction was erroneous even though it was approved by appellant’s counsel.

“[An appellate] court’s responsibility in reviewing jury instructions is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises. It is elementary that a jury must be informed as to the essential elements of the offense; a correct statement of the law is one of the essentials of a fair trial.” Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (internal quotations and citations omitted). “[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter.” Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991).

At the time of trial in the instant case, appellant had not been sentenced on the earlier firearm offense pending before Judge Stevens. Trial counsel admitted in the colloquy with Judge Alden that “[he] called Judge Stevens” to get a continuance in that case. Alleging that appellant sought that continuance for tactical reasons, the Commonwealth’s attorney in the present case moved for a continuance, pending the outcome of the first case. While Judge Alden was “considering granting the motion for a continuance,” trial counsel said he would “concede the point” and agreed to the instruction. Subsequently, when the trial judge asked counsel if he had any objection to the firearm instruction, Instruction G, counsel [30 Va.App. 11] said, “That’s acceptable.” It is in this fast and loose climate that appellant contends the jury was improperly instructed.

A party may not invite error and subsequently raise that error as grounds for appeal. “[A] defendant, having agreed upon the action taken by the trial court, should not be allowed to assume an inconsistent position. No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate–to invite error … and then to take advantage of the situation created by his own wrong.” Manns v. Commonwealth, 13 Va.App. 677, 679-80, 414 S.E.2d 613, 615 (1992) (citations omitted). Trial counsel agreed to the proposed jury instruction and, thus, became a party to the error he now complains of on appeal. However, his agreement cannot confer the power to impose a sentence greater than that established by the legislature. The penalty exceeded that authorized by statute and, therefore, we hold that the jury was improperly instructed. Code § 18.2-53.1 makes it unlawful for any person to use or display a firearm while committing one of the enumerated felonies. That section provides:

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a

Page 313

term of imprisonment of three years for a first conviction, and for a term of five years for a second or subsequent conviction under the provisions of this section.

Code § 18.2-53.1 (emphasis added). The statute is recidivist in nature because it is “aimed at punishment of specific behavior, not reform.” Stubblefield v. Commonwealth, 10 Va.App. 343, 347, 392 S.E.2d 197, 198 (1990).

[30 Va.App. 12] Based on the evidence before the trial court, Instruction G provided an incorrect statement of law because it instructed the jury on the enhanced punishment provision for a “second or subsequent conviction” in the absence of proof of a first conviction. A final sentencing order was a necessary predicate to this action, and Judge Stevens had not entered one on the earlier firearm offense. The jury’s verdict in that case was not a final conviction without the entry of the sentencing order and, therefore, could not be used to establish the predicate first offense. See Ramdass v. Commonwealth, 248 Va. 518, 520, 450 S.E.2d 360, 361 (1994), cert. denied, 514 U.S. 1085, 115 S.Ct. 1800, 131 L.Ed.2d 727 (1995). In Ramdass, our Supreme Court considered whether the defendant’s prior conviction for armed robbery made him ineligible for parole. The Court concluded: “Judgment had not been entered on that verdict; therefore, it cannot be considered as a conviction under [the applicable Code provision].” Id. (emphasis added); see also Miller v. Commonwealth, 22 Va.App. 497, 500 n. 3, 471 S.E.2d 780, 781 n. 3 (1996) (citing Ramdass ) (“A guilty verdict is not a conviction until a final order of judgment has been entered.”).

There being no evidence to support the enhanced punishment provided in Code § 18.2-53.1, the jury did not have the statutory authority to impose a five-year sentence for a first time offender, even with the acquiescence of appellant’s attorney. 5 “Where the sentence imposed is in excess of that prescribed by law, that part of the sentence which is excessive [30 Va.App. 13] is invalid.” Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510 (1973) (citing Crutchfield v. Commonwealth, 187 Va. 291, 46 S.E.2d 340 (1948)). “A sentence in excess of one prescribed by law is not void [a]b initio because of the excess, but is good insofar as the power of the court extends, and is invalid only as to the excess.” Id. at 305, 199 S.E.2d at 510-11 (citing Royster v. Smith, 195 Va. 228, 77 S.E.2d 855 (1953)).

“If an illegal sentence has been pronounced, the court has [the] power to substitute a legal sentence, … the imposition of the void sentence does not terminate the jurisdiction of the court.” Powell v. Commonwealth, 182 Va. 327, 340, 28 S.E.2d 687, 692 (1944) (citations omitted). “A void sentence does not invalidate a prior adjudication of guilt properly had; but, on the contrary, such adjudication furnishes a basis for the imposition of a valid sentence when the invalidity of the sentence imposed is called to the attention of the court.” Carter v. Commonwealth, 199 Va. 466, 470, 100 S.E.2d 681, 684 (1957). In the instant case, at the time the jury returned a guilty verdict and recommended the five-year punishment, it did not have the statutory authority to sentence appellant to any term greater than three years.

Page 314

Accordingly, any sentence in excess of the statutory mandate of three years is void.

III. HARMLESS ERROR

The Commonwealth argues that any error in Instruction G was harmless because appellant received two subsequent[30 Va.App. 14] final firearm convictions on October 31, 1997, before the trial judge imposed the instant five-year sentence. Relying on Miller, 22 Va.App. 497, 471 S.E.2d 780, the Commonwealth contends that those subsequent convictions can be used as the predicate for an enhanced punishment in the instant case. The Commonwealth concludes that any error in the jury instruction was harmless because the trial judge ultimately possessed the authority under Miller to impose the five-year sentence based upon the “subsequent” convictions.

Our determination of whether the error is harmless is guided by familiar principles. Non-constitutional error “is harmless ‘[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.’ ” Lavinder v. Commonwealth, 12 Va.App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc ) (quoting Code § 8.01-678) (emphasis added in Lavinder ). To determine whether an error is harmless, we “must review the record and the evidence and evaluate the effect the error may have had on how the finder of fact resolved the contested issues.” Id. at 1007, 407 S.E.2d at 912. “An error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have been the same.” Id. at 1005, 407 S.E.2d at 911.

Applying the standard articulated in Lavinder, we cannot conclude that the erroneous jury instruction and the trial court’s imposition of the five-year sentence was harmless. Although we concluded in Miller that the trial court properly imposed the enhanced punishment in that case, Miller, unlike appellant, was tried in a bench trial. In Miller, we held that the trial judge properly imposed the five-year sentence where an unrelated firearm conviction was entered after the judge’s finding of guilt but four days before he imposed the sentence.

Because Code § 18.2-53.1 is concerned with punishing repeat firearm offenders, the statute punishes for a “second or subsequent conviction” without regard to the dates of the convictions or the sequence in which the offenses were [30 Va.App. 15] committed. “Any conviction that follows a first conviction is a subsequent conviction within the purview of Code § 18.2-53.1.”

Miller, 22 Va.App. at 501-02, 471 S.E.2d at 782 (citations omitted) (emphasis added). Therefore, we concluded “that the relevant inquiry under Code § 18.2-53.1 is whether, at the time of sentencing, a conviction entered is a ‘second or subsequent’ conviction.” Id. at 502, 471 S.E.2d at 782 (emphasis in original).

The decision in Miller, which involved a bench trial, is not inconsistent with our decision in the present case. A jury may use only those convictions that are final at the time it returns its verdict and determines the appropriate sentence. There was no predicate offense in this case when the jury recommended the enhanced punishment because judgment had not been entered on the earlier firearm conviction pending before Judge Stevens and the October 1997 convictions had not occurred.

We recognize that Virginia law has historically maintained a clear distinction between the roles played by judge and jury in criminal sentencing. See Duncan v. Commonwealth, 2 Va.App. 342, 345, 343 S.E.2d 392, 394 (1986). “Under the statutory scheme, the jury determines the guilt or innocence of the accused. If the jury finds that he is guilty, it then ‘ascertains’ or ‘fixes’ the maximum punishment in accordance with contemporary community values and within the limits established by law.” Id. (emphasis added). “After conviction, … the court may suspend imposition of sentence or suspend the sentence in whole or part….” Code § 19.2-303.

“[T]he punishment as fixed by the jury is not final or absolute, since its finding on the proper punishment is subject to suspension

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by the trial judge, in whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal. The verdict of the jury is the fixing of maximum punishment which may be served. Under such practice, the convicted criminal defendant is entitled to [30 Va.App. 16] ‘two decisions’ on the sentence, one by the jury and the other by the trial judge in the exercise of his statutory right to suspend; his ‘ultimate sentence … does not [therefore] rest with the jury’ alone but is always subject to the control of the trial judge. This procedure makes the jury’s finding little more than an advisory opinion or first-step decision. Any criticism of jury sentencing because it lacks the objectivity and principled decision of a judge is thus overcome by the existence of the power in the trial judge to bring his so-called superior judgment to bear upon the issue of proper punishment in reaching his decision whether to suspend the sentence or not.”

Duncan, 2 Va.App. at 345, 343 S.E.2d at 394 (quoting Vines v. Muncy, 553 F.2d 342, 349 (4th Cir.1977)) (emphasis added). Clearly, the trial judge may reduce a sentence but may not exceed the “maximum punishment” fixed by the jury.

In the instant case, notwithstanding trial counsel’s acquiescence and agreement to the erroneous jury instruction, we cannot conclude that the error was harmless. Appellant was subjected to a maximum mandatory sentence that was not authorized at the time the jury determined his “maximum punishment.” Id. While a trial judge may have the authority under Code § 19.2-303 to reduce a jury’s recommended sentence, 6 he or she does not have the authority to impose a sentence greater than the one recommended by the jury. 7 The trial court is required to properly instruct the jury as to a correct statement of the applicable punishment range as of the time of trial. Because the jury was instructed to impose a sentence greater than that authorized, that portion in excess of the statutory maximum of three years is vacated and the case is remanded to the trial court to enter an order consistent [30 Va.App. 17] with this opinion and in accordance with the first offender provisions of Code § 18.2-53.1. 8

Reversed and remanded.

—————

1 Appellant was also convicted of robbery, in violation of Code § 18.2-58.

2 Patrick N. Anderson represented appellant in the proceedings before Judge Stevens in the earlier firearm case and in the trial court proceedings in the instant case. Different counsel was appointed for this appeal.

3 The Commonwealth received no notice and did not participate in the motion for continuance of the sentencing before Judge Stevens.

[COMMONWEALTH]: … [Appellant] was supposed to get sentenced last week. Unbeknownst to the Commonwealth, it got bumped. Mr. Sanders from our office was there ready to argue [the sentencing before Judge Stevens] and was told from the Bench, “Well, that’s been moved to September.”

Appellant’s trial counsel conceded that he called Judge Stevens to request a continuance in the first case.

THE COURT: How did the case get moved from Friday?

[COMMONWEALTH]: That would be a great question. I wish I knew the answer.

THE COURT: Mr. Anderson, do you know?

[COUNSEL]: I called Judge Stevens…. I did call Judge Stevens. There were several reasons.

THE COURT: Mr. Anderson, it doesn’t really matter [why] it was continued. Why it was continued doesn’t really matter….

4 The following colloquy occurred:

[COUNSEL]: … My client is ready to go to trial here today.

THE COURT: Well, you can note your exception.

[COUNSEL]: Well, if I may, before you make this decision, let me tell my client exactly what’s going on here because, I’m sure he doesn’t understand–

THE COURT: All right.

[COUNSEL]: –and see what he wants to do.

(Counsel confers with Defendant.)

[COUNSEL]: Judge, just so I understand, are you refusing to make a decision on this issue?

THE COURT: Well, Mr. Anderson, I’ve granted–or, I’m considering granting the motion for a continuance. I’ve given you an opportunity to be heard on it. If there’s anything else you’d like to say, I’ll be happy to hear it.

[COUNSEL]: Well, before we get to the continuance, what I’m trying to determine is–I mean, if the Court is just continuing the matter because they refuse to rule on the motion, which I think is improper, I think that we need to make a decision on the issue.

I mean–if you make a decision one way or the other, then Mr. Murphy can either make his determination whether he wants a continuance, but I don’t think it’s right or fair for anybody for the Court to say, “Well, I can’t make this decision. I’m just going to continue the case.”

THE COURT: Well, Mr. Anderson, I understand perfectly your position. Is there anything else that you’d like to say about the motion for a continuance?

[COUNSEL]: Well, then this is what I’m going to have to do, and this is kind of odd. I’m obviously going to note my exception to what’s going on; but, then, for purposes of protecting my client, I’ll just concede that you can use the five years then, because my client is going to be better protected now than waiting until after September, when all the other stuff is going to be final.

So, if the Court’s not willing to make a ruling, which I think is improper and I do object to that–that’s why we have this system–then, I’m forced to make a determination of what’s the least burden to put on my client.

The Court is basically ordering me to tell my client what’s the least exposure you’re going to have, and that is very improper, and I note a big exception to that. But, if that’s the way we are today, then I have no choice but to say let Mr. Murphy use the five years.

He can’t say there was a second prior conviction now, and I guess, if we have to, we’ll deal with it later in the Appeals Court, but I can’t agree to the continuance.

THE COURT: Mr. Murphy, is there anything you’d like to add?

[COMMONWEALTH]: Your Honor, if counsel would rather concede the legal point than see a continuance granted, that’s fine with me.

[COUNSEL]: Well, I’m not conceding a legal point, but we are going to go forward. That five years is going to go into the jury instruction, but I’m not conceding it and I’m noting an exception to it, but it will be in the jury instruction.

THE COURT: Well, I’m not sure you can have it both ways, Mr. Anderson. If you don’t want to agree to it being five years in the jury instruction, you don’t have to. On that condition, I’m granting the Commonwealth’s motion for a continuance. I mean, it’s as simple as that.

I know you disagree with me, but please tell me how you’d like to proceed at this point.

[COUNSEL]: Well, if I may then, Judge, you tell me I can’t have it both ways, but the Court wants it both ways. I respectfully say this to you. I’m not trying to be–

THE COURT: Mr. Anderson, I’ve ruled. Is there anything else you’d like to add with regard to whether you’ll agree or not agree?

[COUNSEL]: Then I will be forced to concede the point, but I’m noting my exception that I’m being forced to concede the point, but I will concede the point. That I can do.

THE COURT: All right. Well, then you’ve conceded the point.

[COUNSEL]: But I’m noting my exception to being forced, here.

[COMMONWEALTH]: I object to this, Your Honor. I object to it.

THE COURT: All right. Let’s agree on a date for a continuance.

[COUNSEL]: Well, Judge, I’m conceding the point. The fact–

THE COURT: Mr. Anderson, I don’t want to argue about it any further. You don’t have to agree to it, and if you don’t agree to it–

[COUNSEL]: But I am agreeing to it. I just said I would agree to it.

THE COURT: Well, then the record will reflect that you’re agreeing to it, not that you’re agreeing to it but objecting to it.

[COUNSEL]: I’m not doing that. You said I couldn’t do that, and I’m not doing that. I said I would agree to the legal point, but there’s a difference by saying that I note an exception that I’m being put in that position. That’s different. Isn’t that fair?

THE COURT: How about September 16th?

[COUNSEL]: Well, if you’re not going to let me do that either, then I’ll just concede the point. I mean, I have no choice, Judge. So, I will concede the point. If you’re not going to let me note an exception to anything, then I’ll just concede the point.

THE COURT: You can note an exception to anything you’d like to, but–

[COUNSEL]: I’m not going to note an exception if that’s going to cause you to continue the case.

[COMMONWEALTH]: September 16th is fine with us.

[COUNSEL]: I’m not going to note any exception if that’s going to cause you to continue this case. I will concede the point, and we’ll move forward.

THE COURT: All right. Then let’s bring the jury in.

(Emphasis added).

5 Our decision to vacate appellant’s five-year sentence is based solely upon the lack of authority of a jury to sentence a defendant to a period greater than that statutorily mandated. Appellant’s argument that he was “forced” either to accept the improperly enhanced punishment or suffer a continuance is without merit. It is well settled that the decision whether to grant a continuance is a matter within the sound discretion of the trial court. See Lebedun v. Commonwealth, 27 Va.App. 697, 712, 501 S.E.2d 427, 434 (1998); Price v. Commonwealth, 24 Va.App. 785, 788, 485 S.E.2d 655, 657 (1997). Indeed, we have previously held that a trial court may properly grant a continuance where the moving party has been the victim of surprise. See Lyles v. Commonwealth, 21 Va.App. 187, 191, 462 S.E.2d 915, 917 (1995) (affirming decision to grant a continuance where the moving party was surprised by defendant’s trial tactics); see also Bennett v. Commonwealth, 236 Va. 448, 460-61, 374 S.E.2d 303, 311 (1988) (“Ambush, trickery, stealth, gamesmanship, one-upmanship, surprise have no legitimate role to play in a properly conducted trial.”), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200 (1989). Although the trial judge in the instant case could have granted the continuance for good cause, including that the Commonwealth was “put in a bind” by counsel’s “surprise” trial tactics, she did not do so because counsel agreed to proceed with trial.

6 The trial judge cannot reduce a statutorily mandated sentence.

7 Code § 19.2-295.2, which provides that the trial court has the option of imposing an additional six months to three years of suspended sentence, is inapplicable to the instant case. See Allard v. Commonwealth, 24 Va.App. 57, 67-68, 480 S.E.2d 139, 143-44 (1997).

8 Appellant also contends that proof of a prior conviction under Code § 18.2-53.1 constitutes an element of that offense, which the Commonwealth must prove in order to impose the enhanced punishment. He argues that Instruction G was improper because it did not instruct the jury that it was required to find that appellant had previously been convicted of a firearm offense before recommending the enhanced five-year punishment. We do not address the merits of appellant’s argument because he did not raise this issue before the trial court and is precluded from raising it on appeal. See Rule 5A:18.

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Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).
By: Dom Rivera

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Plea Bargain or Trial?

The decision of whether to plea or go to trial

As part of every criminal defense case in Virginia there will be a time when your attorney will negotiate with the Commonwealth Attorney for the Virginia city or county where the prosecution is ongoing.  This may happen at any point from when you hire your Virginia lawyer until your Virginia criminal trial. Your attorney will present you with  potential plea offer and it will be your decision whether or not to take it.  Should you plea or risk a trial?

When you retain the services of our Virginia lawyers, you will obtain legal advice, expertise, and experience.  Our Virginia lawyers are not afraid to try your case when it is in our client’s best interests.

When we present you with the offered plea, we will also present you with our prediction of what we estimate would happen if we go to trial.  For example, recently we got an offer from a prosecutor for a Virginia assault and battery case.  Our client stated that she was innocent and would rather go down trying rather than plea guilty to something she did not do.  The prosecutor’s offer did not carry the possibility of jail.  We went to trial and after several hours our client got acquitted.  We will not shy away from a fight, but will candidly advice you to take a plea bargain that is in your best interests.

Return to the Virginia Criminal Case Frequently Asked Questions Page.

Contact a Virginia lawyer for advice on whether to accept a plea or go to trial.

Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorney representing clients throughout Virginia. Some of the jurisdictions served include:

Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).
By: Dom Rivera

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Virginia Trespassing

Virginia Trespassing Criminal Defense

In Virginia trespass is a crime against the property rights of another.  For a person to be trespassing into the property of another in Virginia, a person in lawful possession of the property must have indicated to the trespasser that he or she was not to enter the property.  This means that notice must be established.  However, notice may be given orally, in writing, or through the use of a sign.  Additionally, in Virginia, the person providing the no trespass notice does not have to be the owner of the property, but only needs to be in lawful possession of the same.  Therefore, a person renting a home, apartment, or other dwelling has the right to keep undesired visitors away.

Trespassing in Virginia

§ 18.2-119. Trespass after having been forbidden to do so; penalties.

If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of §§ 18.2-132 through 18.2-136.

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Signs forbidding trespass in Virginia

§ 18.2-119.1. Validity of signs forbidding trespass; penalty.

If any person knowingly and intentionally posts No Trespassing signs on the land of another without the permission of a person authorized to post such signs on that land, he shall be guilty of a Class 3 misdemeanor.

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Instigating others to trespass

§ 18.2-120. Instigating, etc., such trespass by others; preventing service to persons not forbidden to trespass.

If any person shall solicit, urge, encourage, exhort, instigate or procure another or others to go upon or remain upon the lands, buildings, or premises of another, or any part, portion or area thereof, knowing such other person or persons to have been forbidden, either orally or in writing, to do so by the owner, lessee, custodian or other person lawfully in charge thereof, or knowing such other person or persons to have been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion or area thereof at a place or places where it or they may reasonably be seen; or if any person shall, on such lands, buildings, premises or part, portion or area thereof prevent or seek to prevent the owner, lessee, custodian, person in charge or any of his employees from rendering service to any person or persons not so forbidden, he shall be guilty of a Class 1 misdemeanor.

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Trespassing with intent to damage property

§ 18.2-121. Entering property of another for purpose of damaging it, etc.

It shall be unlawful for any person to enter the land, dwelling, outhouse or any other building of another for the purpose of damaging such property or any of the contents thereof or in any manner to interfere with the rights of the owner, user or the occupant thereof to use such property free from interference.

Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor. However, if a person intentionally selects the property entered because of the race, religious conviction, color or national origin of the owner, user or occupant of the property, the person shall be guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

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Trespassing into school or church property

§ 18.2-128. Trespass upon church or school property.

A. Any person who, without the consent of some person authorized to give such consent, goes or enters upon, in the nighttime, the premises or property of any church or upon any school property for any purpose other than to attend a meeting or service held or conducted in such church or school property, shall be guilty of a Class 3 misdemeanor.

B. It shall be unlawful for any person, whether or not a church member or student, to enter upon or remain upon any church or school property in violation of (i) any direction to vacate the property by a person authorized to give such direction or (ii) any posted notice which contains such information, posted at a place where it reasonably may be seen. Each time such person enters upon or remains on the posted premises or after such direction that person refuses to vacate such property, it shall constitute a separate offense.

A violation of this subsection shall be punishable as a Class 1 misdemeanor, except that any person, other than a parent, who violates this subsection on school property with the intent to abduct a student shall be guilty of a Class 6 felony.

C. For purposes of this section: (i) “school property” includes a school bus as defined in § 46.2-100 and (ii) “church” means any place of worship and includes any educational building or community center owned or leased by a church.

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Peeping or spying

§ 18.2-130. Peeping or spying into dwelling or enclosure.

A. It shall be unlawful for any person to enter upon the property of another and secretly or furtively peep, spy or attempt to peep or spy into or through a window, door or other aperture of any building, structure, or other enclosure of any nature occupied or intended for occupancy as a dwelling, whether or not such building, structure or enclosure is permanently situated or transportable and whether or not such occupancy is permanent or temporary, or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant’s reasonable expectation of privacy.

B. It shall be unlawful for any person to use a peephole or other aperture to secretly or furtively peep, spy or attempt to peep or spy into a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location or enclosure for the purpose of viewing any nonconsenting person who is totally nude, clad in undergarments, or in a state of undress exposing the genitals, pubic area, buttocks or female breast and the circumstances are such that the person would otherwise have a reasonable expectation of privacy.

C. The provisions of this section shall not apply to a lawful criminal investigation or a correctional official or local or regional jail official conducting surveillance for security purposes or during an investigation of alleged misconduct involving a person committed to the Department of Corrections or to a local or regional jail.

D. As used in this section, “peephole” means any hole, crack or other similar opening through which a person can see.

E. A violation of this section is a Class 1 misdemeanor.

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Trespass by hunters

§ 18.2-132. Trespass by hunters and fishers.

Any person who goes on the lands, waters, ponds, boats or blinds of another to hunt, fish or trap without the consent of the landowner or his agent shall be deemed guilty of a Class 3 misdemeanor.

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Contact a Virginia trespassing criminal defense lawyer.


Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorneyrepresenting clients throughout Virginia. Some of the jurisdictions served include:Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).

By: Dom Rivera

Posted in Virginia Crimes | Tagged , , , | Leave a comment

Virginia Criminal Case FAQ

Virginia Criminal Case Frequently Asked Questions

Our clients present us with many questions related to Virginia criminal cases. Some of these include:

What is the structure and progression of Virginia criminal case?

What is the bond or bail hearing and how do I know if I will get bond?

Should I plea bargain or go trial?

How do I choose a Virginia criminal defense lawyer?

Should I be tried by a judge (bench trial) or by a jury?

Does my prior criminal record matter for purposes of my current Virginia criminal charges?

Should I testify in my Virginia criminal trial?

If I am convicted of a crime in Virginia, what steps do I take to appeal. Can things get worse if I appeal my conviction?

What is a habeas corpus proceeding in Virginia?

How do I choose a Virginia federal crime defense attorney?

What is the structure and progression of Virginia criminal case? [Back to top ]

A Virginia criminal case usually starts when a citizen or a police officer swears out a criminal complaint and affidavit. Frequently the criminal complaint is presented to a magistrate who determines probable cause. For many Virginia misdemeanor criminal complaints, the magistrate, upon finding probable cause, will issue an arrest warrant against the defendant. For other misdemeanor complaints and frequently for felony complaints, the complaint will be forwarded to a police detective for further investigation.

Sometimes the Virginia police detective will contact the suspect and ask him to come to the station to discuss the matter. Sometimes the Virginia police detective will show up at the suspect’s residence to “talk.” If you re contacted by a police detective regarding a pending investigation it is extremely important that you contact a competent Virginia criminal defense attorney before discussing anything with the police, even if the police indicates to you that “no charges are pending” that “I don’t have a warrant” or that “it is better for you to cooperate now or it might get worse.”

Once a detached magistrate finds probable cause that the suspect committed the offense, an arrest warrant will issue. Bear in mind that a finding of probable cause requires only minimal evidence. It is a far cry from guilt beyond a reasonable doubt, the standard required to convict. If a warrant is issued against you, sometimes the police will contact you to voluntarily surrender yourself. Sometimes the police will show up at your home, work, or any other place you frequent for the purpose of arresting you. In either case, it is important that you contact a competent Virginia criminal defense lawyer for legal advice and to protect your rights. It is extremely important that you are prepared to interact with a highly trained police officer who is on a mission to obtain a “statement” from you. This statement will invariably be used as a confession, whether or not you believe that you actually confessed. A mistake here can land you in a Virginia jail or even worse, in a Virginia prison.

After being arrested, booked, and processed, you will be taken to a magistrate for a bail hearing. At this hearing, you will be asked several questions to determine whether you are a flight risk or a danger to the community. For more details about your bond hearing, please refer to our Virginia criminal law frequently asked question regarding bail determinations and bond hearings. If you don’t agree with the magistrate’s bail decision, you may have bail heard by the General District Court or the Juvenile and Domestic Relations Court depending on the type of case. The decision of the Virginia General District or Juvenile and Domestic Relations Court can then be appealed to the Circuit Court, then to the Virginia Court of Appeals, and finally, to the Virginia Supreme Court.

What is the bond or bail hearing and how do I know if I will get bond?

Should I plea bargain or go trial? [Back to top ]

During most criminal cases, there will be a time when your Virginia criminal defense lawyer will negotiate with the Assistant Commonwealth’s Attorney.  The plea bargain process will result in either an agreed disposition of your Virginia criminal case or a decision to go to trial.  We can provide you with legal advice to assist you in making the decision of whether to plea bargain or go to trial.

How do I choose a Virginia criminal defense lawyer? [Back to top ]

Should I be tried by a judge (bench trial) or by a jury? [Back to top ]

There are many advantages to a trial by a jury of your Virginia peers.  To convict you, the prosecution must be able to convince the jury panel, your faith will not just be in the hands of a Virginia judge.  However, a jury can’t suspend any time of the sentence.  Our Virginia criminal defense attorneys ma assist you in making the decision of whether to choose to be tried by a Virginia judge or  Virginia jury.

Does my prior criminal record matter for purposes of my current Virginia criminal charges? [Back to top ]

Should I testify in my Virginia criminal trial? [Back to top ]

If I am convicted of a crime in Virginia, what steps do I take to appeal. Can things get worse if I appeal my conviction? [Back to top ]

What is a habeas corpus proceeding in Virginia? [Back to top ]

How do I choose a Virginia federal crime defense attorney? [Back to top ]

Contact a Virginia felony defense lawyer


Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorneyrepresenting clients throughout Virginia. Some of the jurisdictions served include:Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).

By: Dom Rivera

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Virginia Child Custody FAQ

Virginia Child Custody – Frequently Asked Questions

Our clients present us with many questions related to Virginia child custody laws.  Some of these include:

How does a Virginia Court decide custody cases?

What is the difference between legal custody and physical custody?

What is joint custody and what is sole custody?

Are the mother’s child custody rights superior to the father’s?

Are written child custody or parenting agreements valid?

I am the custodial parent. Can I withhold visitation from the non-custodial parent?

My visitation rights are being withheld. What do I need to do to enforce visitation?

What visitation rights do I have as a stepparent or as a former stepmother or stepfather?

What are the grandparents’ custody / visitation rights?

How does family abuse affect child custody arrangements?

How does the relocation of the custodial parent affect child custody?

I am facing criminal charges, but am innocent. How does this situation affect my Virginia child custody case?

How does a Virginia Court decide custody cases? [ Back to top ]

A Virginia court decides child custody according to the “best interests of the child.” There are many factors and circumstances that the court will evaluate when deciding whether to award custody to the mother or to the father. Some important child custody considerations in Virginia include:

• The age of the child • The physical and mental condition of the child • The child’s changing developmental needs • The age and physical and mental condition of each parent • The relationship between each parent and the child • Each parent’s positive involvement with the child’s life • Each parent’s ability to accurately assess and meet the emotional, intellectual and physical needs of the child. • Other important relationships of the child, such as siblings and extended family members • Each parent’s role in the upbringing and care of the child • The propensity of each parent to actively support the child’s contact and relationship with the other parent • Whether a parent has unreasonably denied the other parent access or visitation with the child • The ability of each parent to cooperate in and resolve disputes regarding matters affecting the child • The reasonable preference of the child, if the child is of reasonable intelligence, understanding, age and experience to express such a preference • Any history of family abuse • Other factors that may be presented to the court to assist the judge to determine the best interests of the child.

Our Virginia child custody attorneys apply their legal knowledge to provide you counsel before, during, and even after your custody case is decided. Consulting with a high-quality Virginia child custody lawyer can make a big difference. As a result of the stress created by divorce or child custody issues, sometimes you may rush into making decisions that may not be in the best interests of your children or in your own best interests. An early initial consultation with our Virginia child custody attorneys will help you make smarter and better decisions always keeping in mind the best interests of your family.

What is the difference between legal custody and physical custody? [ Back to top ]

Legal custody concerns the ability to make medical, educational, and religious decisions involving the children. Physical custody concerns where the children reside. Therefore, parents may have joint legal custody, with one parent having primary physical custody and the other parent having visitation.

What is joint custody and what is sole custody? [ Back to top ]

Are the mother’s child custody rights superior to the father’s?

The short answer is no.  Under Virginia law, when deciding a child custody case in Virginia, the judge must base the child custody decision on factors such as gender.  However, the relationship established between each parent and the child is given significant weight.

When one parent stays home with a young child, the court may take the bond established between the parent and the child into consideration when determining child custody.  However, the court must consider all the child custody factors given due weight to each factor.  Some factors may override others.  Obviously if the mother stays home to raise the child, all other things being equal, the mother would have the upper hand in a Virginia child custody dispute.  However, if the mother does not support the relationship of the children with the father (or vice versa), this factor may override any advantage created by the “stay at home” parent advantage.  Similarly, if a parent has a history of illegal drug use, chemical or alcohol dependency, physical or sexual abuse, mental disorder, or other factors, the applicable child custody analysis in Virginia may weigh towards the other parent.

Regardless, child custody decisions involve a careful analysis of the situation and a factoring of the statutory child support factors.  Neither party holds an advantage based solely on gender for the purpose of determining child custody in Virginia.

Are written child custody or parenting agreements valid?

The answer to whether a parenting agreement is valid is not a clear yes or no.  A child custody agreement is interpreted under contract laws… However, the Court is not bound by the parties’ agreement regarding the custody of the children.  The standard for the court to follow when deciding a child custody case in Virginia is the best interests of the child, not the parents’ wishes.  Therefore, a parenting or child custody agreement is generally a binding contract…. so long as the parties can convince the court that the agreement is in the child’s best interests.

Contact a Virginia child custody lawyer.


Virginia (VA) criminal defense, divorce, child custody, reckless driving, dui and federal court attorneyrepresenting clients throughout Virginia. Some of the jurisdictions served include:Henrico County VA, Richmond City, Chesterfield County VA, Hanover County VA, Petersburg County VA, Fairfax County, Prince William County, Hopewell, Petersburg, Dinwiddie, Quantico, Virginia Beach VA, Norfolk, Chesapeake, Fredericksburg, Stafford, Spotsylvania VA, Hampton Roads, Newport News, Hampton, Williamsburg, Amelia, Powhatan, Goochland, Louisa, Manassas VA, Woodbridge, Charles City, James City, Gloucester, Tidewater, Portsmouth, Shenandoah, Prince George, Sussex, New Kent, West End of Richmond, Glen Allen, Federal Court for the Eastern District of Virginia (Richmond, Alexandria, Norfolk, and Newport News Divisions).

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