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

• Putting Kids First — A parenting class that meets court ordered divorce requirements.
• The Working Parents Handbook: A Guide to the Legal and Practical Aspects of Child Care in Virginia, published by the Virginia Bar Association, Young Lawyers Division.

Virginia Lawyers

• Does your lawyer carry professional liability (legal malpractice) insurance? Is your lawyer facing disciplinary action? The answers are at http://www.vsb.org/attorney/attSearch.asp

Legal

• FindLaw
• Thomson – West (formerly West Group)
• U.S. Courts
• Westlaw

Business and Finance

• Better Business Bureau
• United States Chamber of Commerce

Government

• FirstGov
• Legislative Branch
• Library of Congress
• White House

General

• National Weather Service
• Yahoo! Maps
• YellowPages.com

News

• New York Times
• Newspapers Online
• USA Today
• Wall Street Journal

Search Engines

• AOL
• Google
• Yahoo!

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).

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

Page 311

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

Page 315

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.

[Back to top]

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).

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).

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
• Signs forbidding trespass in Virginia
• Instigating others to trespass
• Trespassing with intent to damage property
• Trespassing into school or church property
• Peeping or spying
• Trespass by hunters

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.

[Top of Page]

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.

[Top of Page]

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.

[Top of Page]

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.

[Top of Page]

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.

[Top of Page]

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.

[Top of Page]

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.

[Top of Page]

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).

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).

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).

Under Virginia law, an accusation of attempting to maim, disfigure, disable or kill another person is a serious criminal charge.  Similarly, shooting, stabbing, cutting or wounding a person causing bodily injury is generally prosecuted as a serious Virginia felony.  Our attorneys can provide you with a Virginia criminal defense to protect your rights and freedom against malicious wounding charges in Virginia.

• Injury to law enforcement, police, firefighter, or emergency medical service provider
• Aggravated malicious wounding
• Throwing objects from places higher than one story
• Malicious bodily injury through use of substance
• Shooting in attempting a felony
• Conviction of lesser included offense

Injury to law enforcement, police, firefighter, or emergency medical service provider

§ 18.2-51.1. Malicious bodily injury to law-enforcement officers, firefighters, search and rescue personnel, or emergency medical service providers; penalty; lesser-included offense.

If any person maliciously causes bodily injury to another by any means including the means set out in § 18.2-52, with intent to maim, disfigure, disable or kill, and knowing or having reason to know that such other person is a law-enforcement officer, as defined hereinafter, firefighter, as defined in § 65.2-102, search and rescue personnel as defined hereinafter, or emergency medical services personnel, as defined in § 32.1-111.1 engaged in the performance of his public duties as a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel, such person shall be guilty of a felony punishable by imprisonment for a period of not less than five years nor more than 30 years and, subject to subsection (g) of § 18.2-10, a fine of not more than $100,000. Upon conviction, the sentence of such person shall include a mandatory minimum term of imprisonment of two years.

If any person unlawfully, but not maliciously, with the intent aforesaid, causes bodily injury to another by any means, knowing or having reason to know such other person is a law-enforcement officer, firefighter, as defined in § 65.2-102, search and rescue personnel, or emergency medical services personnel, engaged in the performance of his public duties as a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel, he shall be guilty of a Class 6 felony, and upon conviction, the sentence of such person shall include a mandatory minimum term of imprisonment of one year.

Nothing in this section shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

As used in this section, “law-enforcement officer” means any full-time or part-time employee of a police department or sheriff’s office that is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth; any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115; any conservation police officer appointed pursuant to § 29.1-200 and auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.

As used in this section, “search and rescue personnel” means any employee or member of a search and rescue organization that is authorized by a resolution or ordinance duly adopted by the governing body of any county, city or town of the Commonwealth.

The provisions of § 18.2-51 shall be deemed to provide a lesser-included offense hereof.

[Top of the Page]

Aggravated malicious wounding

§ 18.2-51.2. Aggravated malicious wounding; penalty.

A. If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

B. If any person maliciously shoots, stabs, cuts or wounds any other woman who is pregnant, or by any other means causes bodily injury, with the intent to maim, disfigure, disable or kill the pregnant woman or to cause the involuntary termination of her pregnancy, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

C. For purposes of this section, the involuntary termination of a woman’s pregnancy shall be deemed a severe injury and a permanent and significant physical impairment.

[Top of the Page]

Throwing objects from places higher than one story

§ 18.2-51.3. Prohibition against reckless endangerment of others by throwing objects from places higher than one story; penalty.

A. It shall be unlawful for any person, with the intent to cause injury to another, to intentionally throw from a balcony, roof top, or other place more than one story above ground level any object capable of causing any such injury.

B. A violation of this section shall be punishable as a Class 6 felony.

[Top of the Page]

Malicious bodily injury through use of substance

§ 18.2-52. Malicious bodily injury by means of any caustic substance or agent or use of any explosive or fire.

If any person maliciously causes any other person bodily injury by means of any acid, lye or other caustic substance or agent or use of any explosive or fire, he shall be guilty of a felony and shall be punished by confinement in a state correctional facility for a period of not less than five years nor more than thirty years. If such act is done unlawfully but not maliciously, the offender shall be guilty of a Class 6 felony.

[Top of the Page]

Shooting in attempting a felony

§ 18.2-53. Shooting, etc., in committing or attempting a felony.

If any person, in the commission of, or attempt to commit, felony, unlawfully shoot, stab, cut or wound another person he shall be guilty of a Class 6 felony.

[Top of the Page]

Conviction of lesser included offense

§ 18.2-54. Conviction of lesser offenses under certain indictments.

On any indictment for maliciously shooting, stabbing, cutting or wounding a person or by any means causing him bodily injury, with intent to maim, disfigure, disable or kill him, or of causing bodily injury by means of any acid, lye or other caustic substance or agent, the jury or the court trying the case without a jury may find the accused not guilty of the offense charged but guilty of unlawfully doing such act with the intent aforesaid, or of assault and battery if the evidence warrants.

[Top of the Page]

Contact a Virginia malicious wounding 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).

Under Virginia law, the common law offenses of assault and battery have been merged.  In Virginia, assault and battery are codified under the Code of Virginia.

In Virginia, an assault and battery is an act intended to cause an apprehension of harm or offensive contact.  The uttering of words in the absence of an act are not an assault. The words must be accompanied by some act indicating that the accused may actually carry out the threat. Assault also requires that the accused also have the intent to commit the assault. For an assault to occur, the alleged victim must have a reasonable apprehension of imminent injury or imminent unlawful contact.

Assault and battery is a general intent offense. Therefore, the accused does not need to intend the specific harm that will result from the unwanted contact, but only the intent to commit an act of unwanted contact. Gross negligence and recklessness may provide the required intent.  If the assault and battery are perpetrated by a mob, each participant can be found guilty of the offense of assault and battery in Virginia.

In Virginia, the traditional defenses for a charge of assault and battery are available. Lack of the intent to commit a Virginia assault and battery and self-defense are the most common defenses to a charge of assault and battery in Virginia.

Under Virginia law, an aggravated offense of assault and battery may be charged as malicious wounding.

Under the Code of Virginia, some assault and battery charges may include:

• Assault and battery
• Assault and battery against a household or family member
• Additional considerations for military personnel convicted of assault and battery in Virginia
• Discretionary civil remedy to assault and battery charges in Virginia – Accord and satisfaction

Assault and battery

§ 18.2-57. Assault and battery.

A. Any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, 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.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, 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.

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a law-enforcement officer as defined hereinafter, a correctional officer as defined in § 53.1-1, a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department, a firefighter as defined in § 65.2-102, or a volunteer firefighter or lifesaving or rescue squad member who is a member of a bona fide volunteer fire department or volunteer rescue or emergency medical squad regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or members as employees, engaged in the performance of his public duties, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

D. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time teacher, principal, assistant principal, or guidance counselor of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he shall be guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to § 18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months.

E. As used in this section:

“Judge” means any justice or judge of a court of record of the Commonwealth including a judge designated under § 17.1-105, a judge under temporary recall under § 17.1-106, or a judge pro tempore under § 17.1-109, any member of the State Corporation Commission, or of the Virginia Workers’ Compensation Commission, and any judge of a district court of the Commonwealth or any substitute judge of such district court.

“Law-enforcement officer” means any full-time or part-time employee of a police department or sheriff’s office which is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth, and any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115, and conservation police officers appointed pursuant to § 29.1-200, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.

“School security officer” means an individual who is employed by the local school board for the purpose of maintaining order and discipline, preventing crime, investigating violations of school board policies and detaining persons violating the law or school board policies on school property, a school bus or at a school-sponsored activity and who is responsible solely for ensuring the safety, security and welfare of all students, faculty and staff in the assigned school.

F. “Simple assault” or “assault and battery” shall not be construed to include the use of, by any teacher, teacher aide, principal, assistant principal, guidance counselor, school security officer, school bus driver or school bus aide, while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a teacher, teacher aide, principal, assistant principal, guidance counselor, school security officer, school bus driver, or school bus aide at the time of the event.

[Top of the Page]

Assault and battery against a household or family member

§ 18.2-57.2. Assault and battery against a family or household member; penalty.

A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.

B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, or (v) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.

C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.

D. The definition of “family or household member” in § 16.1-228 applies to this section.

[Top of the Page]

Additional considerations for military personnel convicted of assault and battery in Virginia

§ 18.2-57.4. Reporting findings of assault and battery to military family advocacy representatives.

If any active duty member of the United States Armed Forces is found guilty of a violation of § 18.2-57.2 or § 18.2-57.3, the court shall report the conviction to family advocacy representatives of the United States Armed Forces.

[Top of the Page]

Discretionary civil remedy to assault and battery charges in Virginia – Accord and satisfaction

§ 19.2-151. Satisfaction and discharge of assault and similar charges.

When a person is in jail or under a recognizance to answer a charge of assault and battery or other misdemeanor, or has been indicted for an assault and battery or other misdemeanor for which there is a remedy by civil action, unless the offense was committed (i) by or upon any law-enforcement officer, (ii) riotously in violation of §§ 18.2-404 to 18.2-407, (iii) against a family or household member in violation of § 18.2-57.2, or (iv) with intent to commit a felony, if the person injured appears before the court which made the commitment or took the recognizance, or before the court in which the indictment is pending, and acknowledges in writing that he has received satisfaction for the injury, the court may, in its discretion, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution, upon payment by the defendant of costs accrued to the Commonwealth or any of its officers.

[Top of the Page]

Contact a Virginia assault and battery 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).

Attorney D. J. Rivera, MBA, Litigation Specialist (Managing Partner)

Mr. Domingo Rivera is an attorney admitted to practice in Virginia . His unique qualifications and excellent litigation skills and experience combined with his language skills places him in a unique position to be a valuable asset to every client he represents.

Mr. Rivera serves as lead counsel arguing cases in court, filing pleadings, and negotiating settlements. He has presented cases at virtually all levels of the Virginia Courts system from the General District Courts to the Court of Appeals and in the federal courts.

Prior to attending law school, Mr. Rivera completed a B.S. in Electrical and Computer Engineering, and an M.B.A. He is also fluent in speaking and reading Spanish.

As a commissioned officer in the U.S. Navy, he was entrusted with the responsibility for several complex high-tech projects. One of these projects was the construction of the Homeland Security Headquarters in Virginia , a multi-million dollar state-of-the art facility and one of the most important projects in the Department of Defense. In addition, Mr. Rivera also served as the Assistant Resident Engineer in Charge of Contracts at the Norfolk Naval Station. These positions of trust required Mr. Rivera to maintain a Top Secret Clearance.

Mr. Rivera has been featured as a legal commentator nationally and internationally, including interviews with the BBC with audience of over 130 million people. Mr. Rivera’s cases have been reported in many publications, including the Washington Post and the Mount Vernon News.

When you demand excellence in legal counseling as well aggressive and effective courtroom skills, Mr. Rivera can be your attorney of choice. He can provide you with legal advice, from deciding whether to pursue litigation to the jury trial.

Contact attorney Domingo J. Rivera

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).

Virginia Federal Court Criminal Defense and Virginia Federal Civil Cases

Representing clients in the Virginia federal courts against all federal criminal accusations and in civil matters in the Virginia federal courts.  Domingo Rivera has valuable experience handling high-profile federal court cases in Virginia.  Mr. Rivera’s cases and commentaries have been reported in the local, National, and even international press.

Litigation in the Virginia Federal Courts, whether related to federal crimes defense or civil cases. requires specialized knowledge and experience.  The Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Local Rules of the Federal Court of the Eastern District of Virginia are different from the rules applied in the Virginia State courts.

The experience of a Virginia federal court attorney can ensure that your Virginia federal case is properly handled.  To illustrate why this is of particular importance, take for example the Federal Court for the Eastern District of Virginia.  This court is commonly referred to as the “rocket docket.”  A Virginia federal court attorney must be prepared to handle the intensity and demands of the Virginia federal courts.

Our firm is your Virginia Federal crime defense lawyer representing clients accused of the following crimes:

Federal Traffic Cases including reckless driving and drunk driving (DUI).

Federal Drug Crimes including possession, trafficking, distribution, possession for sale, prescription fraud and others.

Federal White Collar Crimes including Bank Fraud, Bankruptcy Fraud, Bribery, Credit Card Fraud, Embezzlement, Securities Fraud, Tax Fraud, Theft Crimes, Auto Theft, Bad Checks, Dealing / Stolen Property, Possession / Stolen Property, Forgery, Grand Larceny / Theft, Petty Larceny / Theft, Shoplifting, Theft by Conversion, and Theft of Services

Federal Computer or Internet Crimes including Criminal Copyright Infringement, Computer Hacking, Computer Fraud, Identity Theft, Internet Stalking, Possession / Distribution / Receipt of child pornography.

When you need a Virginia federal crime defense lawyer, a federal court attorney, a Virginia federal lawyer, or an attorney specializing in Federal court practice, we can assist you with all Virginia federal law matters.

Contact a Virginia Federal crime 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).

Virginia Separation Agreement

Under Virginia law, if the husband and wife have signed a separation agreement, the terms are binding on the court.  There are however exceptions, for example if the Virginia separation agreement is unconscionable or entered into under duress or diminished capacity, the separation agreement may not be binding Under Virginia law.  Additionally, the child custody terms may not bind the court, since the court decides child custody based on the best interests of the child and not necessarily the parents’ wishes.  A poorly drafted Virginia separation agreement is sometimes worse than not having an agreement at all!  Therefore it is strongly recommended to have a Virginia separation agreement that is drafted by a Virginia lawyer.

A Virginia separation agreement will contain, at an absolute minimum, terms addressing the following matters:

• Distribution of Property:  This section of the Virginia separation agreement addresses basic issues, for example who gets the house; who pays the mortgage; who keeps which car; how to handle insurance payments for property; what happens to the bank, retirement, and investment accounts.  Before you enter into a Virginia property settlement or separation agreement, you need to be aware of the provisions provided under the law.  Know your Virginia rights before contracting them away!
• Child support: In Virginia, child support is awarded pursuant to the Virginia child support guidelines as well as other important considerations.  Be aware of the law before entering into a Virginia separation agreement.  Remember, under Virginia law, the parents cannot waive the child’s right to be supported by his/her parents.
• Child custody: Should you agree to joint custody, sole custody, or shared custody?  How do you address both physical and legal custody? What will be the visitation schedule?  How does it compare to what a court would award if the case is litigated?  Will the Virginia separation agreement be binding on the court?
• Alimony or spousal support: The terms of a Virginia separation agreement are generally binding on the court.  The duration and the amount of spousal support agreed to as part of a Virginia separation agreement has a significant impact on your legal rights.

The Court may incorporate a property settlement agreement between the parties to its Final Decree of Divorce

§ 20-109.1. Affirmation, ratification and incorporation by reference in decree of agreement between parties.

Any court may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of matrimony or from bed and board, or by a separate decree prior to or subsequent to such decree, or in a decree entered in a suit for annulment or separate maintenance, and in a proceeding arising under subsection A 3 or L of § 16.1-241, any valid agreement between the parties, or provisions thereof, concerning the conditions of the maintenance of the parties, or either of them and the care, custody and maintenance of their minor children, or establishing or imposing any other condition or consideration, monetary or nonmonetary. Provisions in such agreements for the modification of child support shall be valid and enforceable. Unless otherwise provided for in such agreement or decree incorporating such agreement, such future modifications shall not require a subsequent court decree. This section shall be subject to the provisions of § 20-108. Where the court affirms, ratifies and incorporates by reference in its decree such agreement or provision thereof, it shall be deemed for all purposes to be a term of the decree, and enforceable in the same manner as any provision of such decree. The provisions of this section shall apply to any decree hereinbefore or hereinafter entered affirming, ratifying and incorporating an agreement as provided herein. Upon the death or remarriage of the spouse receiving support, spousal support shall terminate unless otherwise provided by stipulation or contract. In any case where jurisdiction is obtained over a nonresident defendant by order of publication or by acceptance of service pursuant to § 20-99.1:1, any properly acknowledged and otherwise valid agreement entered into between the parties may be affirmed, ratified and incorporated as provided in this section.

These are only some of the terms of a Virginia separation agreement.  Fault grounds, estate rights, forum selection, alternative dispute resolution and many other terms can be included in a Virginia separation agreement.  Our Virginia lawyers can provide you with Virginia divorce advice.

Contact a Virginia Divorce and Separation Agreement 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).

Virginia Uncontested Divorce

To be able to obtain a Virginia uncontested divorce neither the husband nor the  wife may assert causes for divorce.  In most situations, a written separation agreement is also required.

A Virginia uncontested divorce attorney can assist you through the entire Virginia uncontested divorce proceeding.  We offer the option of a flat fee for obtaining an uncontested divorce in Virginia as long as certain requirements are met.

Contact a Virginia uncontested divorce attorney.

---

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).

In Virginia, there are two types of spousal support, pendente lite support and post-divorce spousal support.

• Temporary (Pendente Lite) spousal support in Virginia
• “Permanent” spousal support

An award of Virginia pendente lite spousal support occurs while the divorce proceeding is pending and is designed to assist the recipient to maintain the divorce suit.  Pendente lite spousal support can be awarded in Virginia shortly after the filing of the divorce complaint. Many Courts conduct Pendente Lite hearings on Fridays.

The Court’s authority to award temporary spousal support during a Virginia divorce lawsuit is statutory.

§ 20-103. Court may make orders pending suit for divorce, custody or visitation, etc.

A. In suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241, the court having jurisdiction of the matter may, at any time pending a suit pursuant to this chapter, in the discretion of such court, make any order that may be proper (i) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, (ii) to enable such spouse to carry on the suit, (iii) to prevent either spouse from imposing any restraint on the personal liberty of the other spouse, (iv) to provide for the custody and maintenance of the minor children of the parties, including an order that either party provide health care coverage for the children, (v) to provide support, calculated in accordance with § 20-108.2, for any child of the parties to whom a duty of support is owed and to continue to support any child over the age of 18 who meets the requirements set forth in subsection C of § 20-124.2, (vi) for the exclusive use and possession of the family residence during the pendency of the suit, (vii) to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit, or (viii) to compel either spouse to give security to abide such decree. The parties to any petition where a child whose custody, visitation, or support is contested shall show proof that they have attended within the 12 months prior to their court appearance or that they shall attend within 45 days thereafter an educational seminar or other like program conducted by a qualified person or organization approved by the court except that the court may require the parties to attend such seminar or program in uncontested cases only if the court finds good cause. The seminar or other program shall be a minimum of four hours in length and shall address the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. Once a party has completed one educational seminar or other like program, the required completion of additional programs shall be at the court’s discretion. Parties under this section shall include natural or adoptive parents of the child, or any person with a legitimate interest as defined in § 20-124.1. The fee charged a party for participation in such program shall be based on the party’s ability to pay; however, no fee in excess of $50 may be charged. Whenever possible, before participating in mediation or alternative dispute resolution to address custody, visitation or support, each party shall have attended the educational seminar or other like program. The court may grant an exemption from attendance of such program for good cause shown or if there is no program reasonably available. Other than statements or admissions by a party admitting criminal activity or child abuse, no statement or admission by a party in such seminar or program shall be admissible into evidence in any subsequent proceeding.

B. In addition to the terms provided in subsection A, upon a showing by a party of reasonable apprehension of physical harm to that party by such party’s family or household member as that term is defined in § 16.1-228, and consistent with rules of the Supreme Court of Virginia, the court may enter an order excluding that party’s family or household member from the jointly owned or jointly rented family dwelling. In any case where an order is entered under this paragraph, pursuant to an ex parte hearing, the order shall not exclude a family or household member from the family dwelling for a period in excess of 15 days from the date the order is served, in person, upon the person so excluded. The order may provide for an extension of time beyond the 15 days, to become effective automatically. The person served may at any time file a written motion in the clerk’s office requesting a hearing to dissolve or modify the order. Nothing in this section shall be construed to prohibit the court from extending an order entered under this subsection for such longer period of time as is deemed appropriate, after a hearing on notice to the parties. If the party subject to the order fails to appear at this hearing, the court may extend the order for a period not to exceed six months.

C. In cases other than those for divorce in which a custody or visitation arrangement for a minor child is sought, the court may enter an order providing for custody, visitation or maintenance pending the suit as provided in subsection A. The order shall be directed to either parent or any person with a legitimate interest who is a party to the suit.

D. Orders entered pursuant to this section which provide for custody or visitation arrangements pending the suit shall be made in accordance with the standards set out in Chapter 6.1 (§ 20-124.1 et seq.) of this title. Orders entered pursuant to subsection B shall be certified by the clerk and forwarded as soon as possible to the local police department or sheriff’s office which shall, on the date of receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia crime information network system established and maintained by the Department of State Police pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. If the order is later dissolved or modified, a copy of the dissolution or modification shall also be certified, forwarded and entered in the system as described above.

E. An order entered pursuant to this section shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause.

[Back to top]

Upon entry of the Final Decree of divorce, the court may award spousal support.  This award of Virginia spousal support may be permanent, meaning until the death or remarriage of the receiving spouse, or for a defined period of time.

The factors that a Virginia court must consider when awarding spousal support are the following:

• The earning capacity, obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
• The education and training of the parties and the ability and opportunity of the parties to secure such education and training;
• The standard of living established during the marriage;
• The duration of the marriage;
• The age and physical and mental condition of the parties;
• The contributions, monetary and non monetary, of each party to the well-being of the family;
• The property interest of the parties, both real and personal, tangible and intangible;
• The provisions made with regard to the marital property; and
• Such other factors, including the tax consequences to each party , as are necessary to consider the equities between the parties.

As is the case with most Virginia divorce law, the Court’s authority to award spousal support at the conclusion of the Virginia divorce suit is controlled by statute.

§ 20-107.1. Court may decree as to maintenance and support of spouses.

A. Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.

B. Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

C. The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.

D. In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.

E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

F. In contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court’s order. If the court awards periodic support for a defined duration, such findings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.

G. For purposes of this section and § 20-109, “date of separation” means the earliest date at which the parties are physically separated and at least one party intends such separation to be permanent provided the separation is continuous thereafter and “defined duration” means a period of time (i) with a specific beginning and ending date or (ii) specified in relation to the occurrence or cessation of an event or condition other than death or termination pursuant to § 20-110.

H. Where there are no minor children whom the parties have a mutual duty to support, an order directing the payment of spousal support, including those orders confirming separation agreements, entered on or after October 1, 1985, whether they are original orders or modifications of existing orders, shall contain the following:

1. If known, the name, date of birth and social security number of each party and, unless otherwise ordered, each party’s residential and, if different, mailing address, residential and employer telephone number, driver’s license number, and the name and address of his employer; however, when a protective order has been issued or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order;

2. The amount of periodic spousal support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due;

3. A statement as to whether there is an order for health care coverage for a party;

4. If support arrearages exist, (i) to whom an arrearage is owed and the amount of the arrearage, (ii) the period of time for which such arrearage is calculated, and (iii) a direction that all payments are to be credited to current spousal support obligations first, with any payment in excess of the current obligation applied to arrearages;

5. If spousal support payments are ordered to be paid directly to the obligee, and unless the court for good cause shown orders otherwise, the parties shall give each other and the court at least 30 days’ written notice, in advance, of any change of address and any change of telephone number within 30 days after the change; and

6. Notice that in determination of a spousal support obligation, the support obligation as it becomes due and unpaid creates a judgment by operation of law.

[Back to top]

Our law firm is your Virginia divorce lawyer with experience with all issues related to divorce, spousal support, and alimony in Virginia.  Contact a Virginia alimony and spousal support 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).

In Virginia, a court cannot distribute property until the end of the divorce lawsuit.  The court can enter an order enjoining the parties from dissipating financial assets.  In other words, the court can “freeze” the property so that it will be available for distribution at the end of the divorce.

In Virginia, property can be marital, non-marital, or hybrid. Marital property is property that is either jointly titled, or acquired during the marriage other than by gift from third persons or by inheritance, no matter how titled. A Virginia court is empowered to distribute marital property as part of a Virginia divorce. Separate property is property acquired before the marriage in the sole name of either party, and property acquired by one party solely during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, so long as the  property has been kept separate during the marriage.  a Virginia court does not have the authority to distribute separate property during a Virginia divorce.  Hybrid property is part-marital, part-separate.

For property distribution during a divorce, Virginia follows an “equitable distribution” of property theory for distributing marital property.  This means that property is not necessarily divided equally between the husband and the wife, but the court attempts to make an equitable of fair distribution.  To perform an equitable distribution of property, Virginia courts evaluate the following factors:

• The contributions, monetary and non monetary, of each party to the well-being of the family;
• The contributions, monetary and non monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
• The duration of the marriage;
• The ages and physical and mental condition of the parties;
• The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce; how and when specific items of such marital property were acquired;
• The debts and liabilities of each spouse, the basis for such debts sand liabilities, and the property which may serve as security for such debts and liabilities;
• The liquid or non-liquid character of all marital property;
• The tax consequences to each party; and
• Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

The division of property is controlled by statute.  The court will first classify the property as marital separate of part-marital / part-separate.  Then the court will perform an equitable (note that the word is “equitable” which is different from “equal”).

§ 20-107.3. Court may decree as to property of the parties.

A. Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, or upon the filing with the court as provided in subsection J of a certified copy of a final divorce decree obtained without the Commonwealth, the court, upon request of either party, shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property in accordance with subdivision A 3. The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than 21 days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used. The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.

1. Separate property is (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate pursuant to subdivision A 3. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.

2. Marital property is (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision A 3, (ii) that part of any property classified as marital pursuant to subdivision A 3, or (iii) all other property acquired by each party during the marriage which is not separate property as defined above. All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property. For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned.

3. The court shall classify property as part marital property and part separate property as follows:

a. In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to the personal efforts of either party. In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.

For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.

“Personal effort” of a party shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party.

b. In the case of any pension, profit-sharing, or deferred compensation plan or retirement benefit, the marital share as defined in subsection G shall be marital property.

c. In the case of any personal injury or workers’ compensation recovery of either party, the marital share as defined in subsection H of this section shall be marital property.

d. When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.

e. When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.

f. When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.

g. When the separate property of one party is commingled into the separate property of the other party, or the separate property of each party is commingled into newly acquired property, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, each party shall be reimbursed the value of the contributed property in any award made pursuant to this section.

h. Subdivisions A 3 d, e and f of this section shall apply to jointly owned property. No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership. For purposes of this subdivision A 3, property is jointly owned when it is titled in the name of both parties, whether as joint tenants, tenants by the entireties, or otherwise.

B. For the purposes of this section only, both parties shall be deemed to have rights and interests in the marital property. However, such interests and rights shall not attach to the legal title of such property and are only to be used as a consideration in determining a monetary award, if any, as provided in this section.

C. Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property which is not jointly owned. The court may, based upon the factors listed in subsection E, divide or transfer or order the division or transfer, or both, of jointly owned marital property, or any part thereof. The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E.

As a means of dividing or transferring the jointly owned marital property, the court may transfer or order the transfer of real or personal property or any interest therein to one of the parties, permit either party to purchase the interest of the other and direct the allocation of the proceeds, provided the party purchasing the interest of the other agrees to assume any indebtedness secured by the property, or order its sale by private sale by the parties, through such agent as the court shall direct, or by public sale as the court shall direct without the necessity for partition. All decrees entered prior to July 1, 1991, which are final and not subject to further proceedings on appeal as of that date, which divide or transfer or order the division or transfer of property directly between the parties are hereby validated and deemed self-executing. All orders or decrees which divide or transfer or order division or transfer of real property between the parties shall be recorded and indexed in the names of the parties in the appropriate grantor and grantee indexes in the land records in the clerk’s office of the circuit court of the county or city in which the property is located.

D. In addition, based upon (i) the equities and the rights and interests of each party in the marital property, and (ii) the factors listed in subsection E, the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party. The party against whom a monetary award is made may satisfy the award, in whole or in part, by conveyance of property, subject to the approval of the court. An award entered pursuant to this subsection shall constitute a judgment within the meaning of § 8.01-426 and shall not be docketed by the clerk unless the decree so directs. The provisions of § 8.01-382, relating to interest on judgments, shall apply unless the court orders otherwise.

Any marital property, which has been considered or ordered transferred in granting the monetary award under this section, shall not thereafter be the subject of a suit between the same parties to transfer title or possession of such property.

E. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

F. The court shall determine the amount of any such monetary award without regard to maintenance and support awarded for either party or support for the minor children of both parties and shall, after or at the time of such determination and upon motion of either party, consider whether an order for support and maintenance of a spouse or children shall be entered or, if previously entered, whether such order shall be modified or vacated.

G. In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E:

1. The court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall only direct that payment be made as such benefits are payable. No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. “Marital share” means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.

2. To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.

H. In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E, the court may direct payment of a percentage of the marital share of any personal injury or workers’ compensation recovery of either party, whether such recovery is payable in a lump sum or over a period of time. However, the court shall only direct that payment be made as such recovery is payable, whether by settlement, jury award, court award, or otherwise. “Marital share” means that part of the total personal injury or workers’ compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.

I. Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties pursuant to §§ 20-109 and 20-109.1. Agreements, otherwise valid as contracts, entered into between spouses prior to the marriage shall be recognized and enforceable.

J. A court of proper jurisdiction under § 20-96 may exercise the powers conferred by this section after a court of a foreign jurisdiction has decreed a dissolution of a marriage or a divorce from the bond of matrimony, if (i) one of the parties was domiciled in this Commonwealth when the foreign proceedings were commenced, (ii) the foreign court did not have personal jurisdiction over the party domiciled in the Commonwealth, (iii) the proceeding is initiated within two years of receipt of notice of the foreign decree by the party domiciled in the Commonwealth, and (iv) the court obtains personal jurisdiction over the parties pursuant to subdivision A 9 of § 8.01-328.1, or in any other manner permitted by law.

K. The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to:

1. Order a date certain for transfer or division of any jointly owned property under subsection C or payment of any monetary award under subsection D;

2. Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section;

3. Appoint a special commissioner to transfer any property under subsection C where a party refuses to comply with the order of the court to transfer such property; and

4. Modify any order entered in a case filed on or after July 1, 1982, intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.

A Virginia divorce and property distribution lawyer can assist you during a divorce and property distribution proceeding in Virginia.  Contact a Virginia divorce and property distribution attorney.

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).

Virginia Child Support

Under Virginia law, both parents have an absolute duty to support their children.  Virginia has enacted child support guidelines that control the award of child support in Virginia.  The Virginia child support guidelines consider the combined income of both parents as well as the cost of medical insurance for the children, extraordinary medical expenses, the cost of daycare, and the support being provided for other children.

The Virginia child support guidelines are presumed to provide the correct level of Virginia child support.  In Virginia, the court will rarely deviate from the statutory child support guidelines.  However, if the court were to deviate from the guidelines, the court would find that the presumption favoring the Virginia child support guidelines has been overcome.  The court will apply the following factors to determine whether to deviate from the Virginia child support guidelines:

• Actual monetary support for other children or family members;
• Arrangement regarding custody of children;
• Imputed income to a party who is voluntarily unemployed or voluntarily underemployed
• Debts of either party arising during the marriage for the benefit of the child;
• Debts incurred for the production of income;
• Independent financial resources of the child;
• Earning capacity, obligations and needs, and financial resources of each parent;
• Written agreements between the parties as to amount of child support;
• other relevant considerations.

Virginia allows for the collection of child support through income withholding orders.  Additionally, when the amount of support no longer represents the situation of the parties, Virginia courts can modify the amount of support ordered.  For additional Virginia child support information and legal advice:

Contact a Virginia child support 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).

Virginia Child Custody

As your Virginia child custody attorney, our firm handles Virginia child custody litigation. However, if you are not pursuing the best interests of your child or children, we encourage you to seek child custody representation elsewhere.

If you are seeking high-quality child custody legal representation to protect the best interests of your child in Virginia… we are your child custody attorney.

Perhaps the most difficult and emotional part of a divorce or separation is the determination of where the children will reside.

Our clients come to us with many questions, concerns, and worries about their children… where will the children reside, what parent will have custody or visitation, can custody be shared, how do I keep my children safe from an abusive ex, and many others.  We have handled many child custody cases, from those where the parties enter into a parenting agreement, to those requiring a full trial in the Virginia Juvenile and Domestic Relations Court, to those appealed to the Virginia Circuit Court, and even those appealed to the Virginia Court of Appeals.  Every Virginia child custody case is unique and every case is provided the utmost care and dedication.

In Virginia, child custody cases are decided by evaluating the following Virginia child custody statutory factors.

In determining custody in Virginia, the court shall give primary consideration to the best interests of the child. To determine child custody in Virginia, the court must evaluate the following child custody statutory factors:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs. – The court will consider the age of the child and the care necessary for a child of that age, mental, and physical condition  when considering this child custody factor in Virginia.  A newborn child obviously need different care than a teenage child.  A child custody decision in Virginia will focus on determining who is the parent better suited to attend to the needs of the child…now.
2. The age and physical and mental condition of each parent.
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child.
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members.
5. The role that each parent has played and will play in the future, in the upbringing and care of the child.
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child. – This is an extremely important child custody factor in Virginia.  The ability of parents to work together to promote the best interests of the child can’t be underestimated.  When a parent alienates the child from the other parent for no good reason (good reason meaning in the child’s best interests, not in the parent’s), the court will generally not look favorably at that parent when determining which parent will get custody of the child.  There are only very few “reasonable” circumstances when a court will not look unfavorably at a parent’s acts of denying visitation to the other parent.
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.
9. Any history of family abuse.
10. Such other factors as the court deems necessary and proper to the determination.

Code of Virginia, Title 20, Section 20-124.2 and 124.3

Our Virginia child custody law firm has tried many child custody cases and has a very successful track record of accomplishments and results.  If you are in the middle of or about to start a child custody dispute in Virginia, contact us before taking any actions.  The strategy taken in the beginning of your child custody case will have an enormous impact on the outcome of the case.  Let our Virginia child custody attorneys share their knowledge with you.

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).

Going through a Virginia divorce is very difficult mentally, emotionally, and financially.  The advice of an experienced Virginia divorce attorney is extremely important to get through this process and to reduce the stress and uncertainty that comes with a Virginia divorce.

• Consult us before making the decision to file for divorce in Virginia
• Service process for the Virginia divorce suit
• Virginia divorce grounds
• Obtaining temporary relief (Pendente Lite)

As your Virginia divorce attorney, our firm understands both the law and the personal aspects of a Virginia divorce.  Our Virginia law firm can provide legal advice even before the Virginia divorce proceedings begin.  Being prepared in advance for a Virginia divorce can make  a difference.  We can advice you and assist you with your strategy for preparing for your Virginia divorce, child custody, child support, spousal support and property distribution issues.  We can also assist you in preparing a separation agreement in order to facilitate an uncontested divorce.

After making the decision to file for divorce in Virginia and whether to file based on Virginia divorce grounds, there are still many questions that require the guidance of a competent Virginia divorce attorney.  Where will the children live?  What will happen to the property obtain prior to, during, or after the separation?  What are Virginia divorce laws regarding retirement benefits?  Do the rules change when dealing with military retirement?

The commencement of a suit for divorce in Virginia is purely governed by statute.

§ 20-99. How such suits instituted and conducted; costs.

Such suit shall be instituted and conducted as other suits in equity, except as otherwise provided in this section:

1. No divorce, annulment, or affirmation of a marriage shall be granted on the uncorroborated testimony of the parties or either of them.

2. Whether the defendant answers or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise.

3. Process or notice in such proceedings shall be served in this Commonwealth by any of the methods prescribed in § 8.01-296 by any person authorized to serve process under § 8.01-293. Service may be made on a nonresident by any of the methods prescribed in § 8.01-296 by any person authorized to serve process under § 8.01-320.

4. In cases where such suits have been commenced and an appearance has been made on behalf of the defendant by counsel, then notices to take depositions and of hearings, motions, and other proceedings except contempt proceedings, may be served by delivering or mailing a copy to counsel for opposing party, the foot of such notices bearing either acceptance of service or a certificate of counsel in compliance with the Rules of the Supreme Court of Virginia. “Counsel for opposing party” shall include a pro se party who (i) has entered a general appearance in person or by filing a pleading or endorsing an order of withdrawal of that party’s counsel, or (ii) has signed a pleading in the case or who has notified the other parties and the clerk that he appears in the case.

5. Costs may be awarded to either party as equity and justice may require.

[Top of the Page]

After the divorce suit is filed in Virginia, the plaintiff (the person who filed the Virginia divorce lawsuit)  is responsible for service of process on the other spouse.  Just like the filing of the Virginia divorce suit, service of process is governed by statute. Just as with any suit in Virginia, service of process for a divorce lawsuit may be accomplished through personal service, substituted service, or posted service.  Additionally, for a Virginia divorce, the party being served may choose to voluntarily accept service of the divorce process.

§ 20-99.1:1. How defendant may accept service; waive service.

A. A defendant in such suits may accept service of process by signing the proof of service before any officer authorized to administer oaths. This proof of service shall, when filed with the papers in the suit, have the same effect as if it had been served upon the defendant by a person authorized to serve process. In addition, service of process may be accepted or waived by any party, upon voluntary execution of a notarized writing specifying an intent to accept or waive any particular process, or by a defendant by filing an answer in the suit. Such notarized writing may be provided in the clerk’s office of any circuit court and may be signed by such party to the proceedings before any clerk or deputy clerk of any circuit court, under oath, or may be drafted and filed by counsel in the proceeding, and shall, when filed with the papers in the suit, have the same effect as if the process specified had been personally served upon the defendant by a person authorized to serve process. The court may enter any order or decree without further notice unless a defendant has filed an answer in the suit.

B. When service is accepted pursuant to this section by a nonresident person out of the Commonwealth, such service shall have the same effect as an order of publication duly executed.

C. Any process served outside the Commonwealth executed in such manner as provided for in this section is validated.

[Top of the Page]

Virginia divorce law states that to file for divorce in Virginia, you must have divorce grounds.  Grounds include mental cruelty, physical cruelty and physical abuse, adultery, desertion, and one years’ separation (also known as no fault divorce in Virginia).  However, different grounds for divorce in Virginia have different standards of prove.  For example, to file for a Virginia divorce based on grounds of adultery requires specific pleadings, unlike in other situations, notice pleading is not enough.  Additionally, since Virginia still considers adultery a crime (although criminal prosecution is almost unheard of), during a Virginia divorce proceeding, allegations of adultery are subject to a heightened standard of proof.  A Virginia divorce lawyer from our firm can explain the details of you are considering a Virginia divorce on the grounds of adultery.

Similarly, other divorce grounds require specific proof.  To obtain a Virginia divorce on the grounds of cruelty requires proof of some overt physical act.  Not getting along is simply not enough and in some courts, the concept of “mental cruelty” is treated like an illusion.

Virginia divorce grounds have been codified by statute.  The general divorce statute states:

§ 20-91. Grounds for divorce from bond of matrimony; contents of decree.

A. A divorce from the bond of matrimony may be decreed:

(1) For adultery; or for sodomy or buggery committed outside the marriage;

(2) —Repealed.]

(3) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);

(4), (5) —Repealed.]

(6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or

(7), (8) —Repealed.]

(9) (a) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.

(b) This subdivision (9) shall apply whether the separation commenced prior to its enactment or shall commence thereafter. Where otherwise valid, any decree of divorce hereinbefore entered by any court having equity jurisdiction pursuant to this subdivision (9), not appealed to the Supreme Court of Virginia, is hereby declared valid according to the terms of said decree notwithstanding the insanity of a party thereto.

(c) A decree of divorce granted pursuant to this subdivision (9) shall in no way lessen any obligation any party may otherwise have to support the spouse unless such party shall prove that there exists in the favor of such party some other ground of divorce under this section or § 20-95.

B. A decree of divorce shall include each party’s social security number, or other control number issued by the Department of Motor Vehicles pursuant to § 46.2-342.

However, just like there are grounds for divorce in Virginia, there are defenses against these grounds.  For example, marital cohabitation after knowledge of adultery (known as “condonation”) bars the granting of a divorce based on adultery grounds.  Connivance and recrimination are also possible defenses against a divorce suit in Virginia.  The following statute is extremely important when considering these defenses:

§ 20-94. Effect of cohabitation after knowledge of adultery, sodomy or buggery; lapse of five years.

When the suit is for divorce for adultery, sodomy, or buggery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act.

[Top of the Page]

Perhaps the question that people ask the most is: How do I obtain immediate legal relief when I can’t obtain a Virginia divorce prior to being separated for over a year?  Our Virginia divorce lawyers can guide you through the divorce proceedings, including what is called a Pendente Lite hearing.  During this hearing, a Virginia judge can make preliminary rulings temporarily resolving important issues such as exclusive possession of the marital home (who has to move out), temporary child custody, temporary child support, temporary spousal support or alimony, non-dissipation of assets (to keep your spouse from emptying the bank accounts, selling, or hiding property while the divorce case is pending.  The Pendente Lite statute highlights the Court’s powers when granting temporary relief in Virginia.

§ 20-103. Court may make orders pending suit for divorce, custody or visitation, etc.

A. In suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241, the court having jurisdiction of the matter may, at any time pending a suit pursuant to this chapter, in the discretion of such court, make any order that may be proper (i) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, (ii) to enable such spouse to carry on the suit, (iii) to prevent either spouse from imposing any restraint on the personal liberty of the other spouse, (iv) to provide for the custody and maintenance of the minor children of the parties, including an order that either party provide health care coverage for the children, (v) to provide support, calculated in accordance with § 20-108.2, for any child of the parties to whom a duty of support is owed and to continue to support any child over the age of 18 who meets the requirements set forth in subsection C of § 20-124.2, (vi) for the exclusive use and possession of the family residence during the pendency of the suit, (vii) to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit, or (viii) to compel either spouse to give security to abide such decree. The parties to any petition where a child whose custody, visitation, or support is contested shall show proof that they have attended within the 12 months prior to their court appearance or that they shall attend within 45 days thereafter an educational seminar or other like program conducted by a qualified person or organization approved by the court except that the court may require the parties to attend such seminar or program in uncontested cases only if the court finds good cause. The seminar or other program shall be a minimum of four hours in length and shall address the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. Once a party has completed one educational seminar or other like program, the required completion of additional programs shall be at the court’s discretion. Parties under this section shall include natural or adoptive parents of the child, or any person with a legitimate interest as defined in § 20-124.1. The fee charged a party for participation in such program shall be based on the party’s ability to pay; however, no fee in excess of $50 may be charged. Whenever possible, before participating in mediation or alternative dispute resolution to address custody, visitation or support, each party shall have attended the educational seminar or other like program. The court may grant an exemption from attendance of such program for good cause shown or if there is no program reasonably available. Other than statements or admissions by a party admitting criminal activity or child abuse, no statement or admission by a party in such seminar or program shall be admissible into evidence in any subsequent proceeding.

B. In addition to the terms provided in subsection A, upon a showing by a party of reasonable apprehension of physical harm to that party by such party’s family or household member as that term is defined in § 16.1-228, and consistent with rules of the Supreme Court of Virginia, the court may enter an order excluding that party’s family or household member from the jointly owned or jointly rented family dwelling. In any case where an order is entered under this paragraph, pursuant to an ex parte hearing, the order shall not exclude a family or household member from the family dwelling for a period in excess of 15 days from the date the order is served, in person, upon the person so excluded. The order may provide for an extension of time beyond the 15 days, to become effective automatically. The person served may at any time file a written motion in the clerk’s office requesting a hearing to dissolve or modify the order. Nothing in this section shall be construed to prohibit the court from extending an order entered under this subsection for such longer period of time as is deemed appropriate, after a hearing on notice to the parties. If the party subject to the order fails to appear at this hearing, the court may extend the order for a period not to exceed six months.

C. In cases other than those for divorce in which a custody or visitation arrangement for a minor child is sought, the court may enter an order providing for custody, visitation or maintenance pending the suit as provided in subsection A. The order shall be directed to either parent or any person with a legitimate interest who is a party to the suit.

D. Orders entered pursuant to this section which provide for custody or visitation arrangements pending the suit shall be made in accordance with the standards set out in Chapter 6.1 (§ 20-124.1 et seq.) of this title. Orders entered pursuant to subsection B shall be certified by the clerk and forwarded as soon as possible to the local police department or sheriff’s office which shall, on the date of receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia crime information network system established and maintained by the Department of State Police pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. If the order is later dissolved or modified, a copy of the dissolution or modification shall also be certified, forwarded and entered in the system as described above.

E. An order entered pursuant to this section shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause.

[Top of the Page]

A Virginia divorce lawyer with our practice is also a tough, fair, and skilled negotiator.  As such, we can assist you in preparing and negotiating a Separation and Property Settlement Agreement.  This agreement, if properly drafted with all the essential contents, may convert your divorce from contested to uncontested.  When this happens, the divorce can usually be finalized without the need for litigation and in a manner in which both spouses know up front what will happen to the custody of their children, their support needs, and the distribution of their property.

A Virginia divorce lawyer will provide you with Virginia divorce advice to reduce the difficulties and uncertainties associated with the Virginia divorce process.

Contact a Virginia divorce 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).

Virginia Felonies are classified as follows:

Class 1 felonies  – death, or imprisonment for life and a fine of up to $100,000.

Class 2 felonies – imprisonment for life or a minimum of 20 years and a fine of up to $100,000.

For Class 3 felonies – imprisonment for five to 20 years and a fine of up to $100,000

For Class 4 felonies -  imprisonment for two to 10 years and a fine of up to $100,000.

Class 5 felonies – imprisonment for one to 10 years or jail for up to 12 months and a fine of up to $2,500, either or both.

Class 6 felonies – imprisonment for one to five years or jail for up to 12 months and a fine of up to $2,500, either or both.

Some commonly charged felonies in Virginia include:

• Murder
• Malicious wounding
• Armed robbery, grand larceny, and other serious theft crimes
• Possession or distribution of drugs
• Third offense of Domestic assault (3rd offense or greater)
• Felony DWI

Contact a Virginia felony defense lawyer

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).

A Virginia sex crime defense lawyer can help you to protect your rights if you are accused of a Virginia sex crime.  Common Virginia sex crime charges include:

• Rape
• Child Molestation
• Date Rape
• Indecent Exposure
• Sexual Battery
• Solicitation of a Minor
• Spousal Rape
• Statutory Rape
• Possession of Child Pornography

Contact a Virginia sex crime defense lawyer.

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).

In Virginia you may be charged with one or more of a variety of theft crimes.  Perhaps the most common theft crime in Virginia is shoplifting, which is considered as petit larceny if the value of the item is less than $200.00 or grand larceny if the value of the item exceeds $200.00.

As with every criminal prosecution in Virginia, the prosecution must prove the elements of a Virginia theft crime beyond reasonable doubt. We will hold the prosecution to this high standard.  Our Virginia theft crime defense attorneys specialize in providing an aggressive defense against the following Virginia theft crimes:

• Petit larceny, also called petty larceny
• Grand larceny
• Shoplifting
• Robbery
• Auto theft / Carjacking
• Burglary
• Embezzlement
• Fraud
• Credit card fraud
• Employee theft
• Money laundering

Petit larceny, also called petty larceny in Virginia

You may be facing charges of petit larceny if you are accused of stealing an item from a person (basically snatching something away from somebody else) if the item is worth less than five dollars.  You may also be charged with petit larceny of you are accused of stealing an item without taking item directly from the other person if the value of the item is worth less than two hundred dollars.  Petit larceny is a Class one misdemeanor.  If the accusation involves taking an item worth more than five dollars from the person or stealing an item worth more than two hundred dollars not directly from the person, the charge will be grand larceny, a felony.

§ 18.2-96. Petit larceny defined; how punished.

Any person who:

1. Commits larceny from the person of another of money or other thing of value of less than $5, or

2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.

[ Back to top ]

Grand larceny

Grand larceny is a serious criminal accusation.  If you are charged with grand larceny in Virginia, you are facing the possibility of spending up to twenty years in prison.  Grand larceny involves taking an item worth more than five dollars from the person or stealing an item worth more than two hundred dollars not directly from the person.  If you are convicted of grand larceny in Virginia, the judge or jury has the option of sentencing up to the range of a class one misdemeanor, but in Virginia, you probably will not get such leniency from a jury.

§ 18.2-95. Grand larceny defined; how punished.

Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm’s value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

[ Back to top ]

Shoplifting

Shoplifting is a form of larceny and perhaps the most common larceny charge in Virginia.  Every day, department stores, specialty stores, electronic shops, and other commercial establishments in Virginia stop people and accuse them of stealing merchandise.  Sometimes the accusations arise from innocent placement of merchandise somewhere in a shopping basket with the intention to pay for the item.  However, when the person inadvertently forgets to pay for the item, the store in Virginia accuses the person of purposely hiding or concealing the merchandise with the intent to steal it.  Sometimes good people make the mistake of falling to the temptation of trying to take an item from a store.  Whatever the case may be, a charge of shoplifting, whether petit larceny or grand larceny must be taken seriously and defended against smartly and aggressively.

§ 18.2-103. Concealing or taking possession of merchandise; altering price tags; transferring goods from one container to another; counseling, etc., another in performance of such acts.

Whoever, without authority, with the intention of converting goods or merchandise to his own or another’s use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts, when the value of the goods or merchandise involved in the offense is less than $200, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $200 or more, shall be guilty of grand larceny. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise.

[ Back to top ]

Robbery

§18.2-58. Robbery; How punished.

If any person commit robbery by partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony and shall be punished by confinement in a state correctional facility for life or any term not less than five years.

[ Back to top ]

Auto theft / Carjacking

§ 18.2-58.1. Carjacking; penalty A. Any person who commits carjacking, as herein defined, shall be guilty of a felony punishable by imprisonment for life or a term not less than fifteen years.

B. As used in this section, “carjacking” means the intentional seizure or seizure of control of a motor vehicle of another with intent to permanently or temporarily deprive another in possession or control of the vehicle of that possession or control by means of partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever. “Motor vehicle” shall have the same meaning as set forth in § 46.2-100.

C. The provisions of this section shall not preclude the applicability of any other provision of the criminal law of the Commonwealth which may apply to any course of conduct which violates this section.

[ Back to top ]

Burglary

§ 18.2-89. Burglary; how punished.

If any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or any larceny therein, he shall be guilty of burglary, punishable as a Class 3 felony; provided, however, that if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

[ Back to top ]

Embezzlement

§ 18.2-111. Embezzlement deemed larceny; indictment. [ Back to top ]

If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading or any other personal property, tangible or intangible, which he shall have received for another or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another or by any court, corporation or company, he shall be guilty of embezzlement. Proof of embezzlement shall be sufficient to sustain the charge of larceny. Any person convicted hereunder shall be deemed guilty of larceny and may be indicted as for larceny and upon conviction shall be punished as provided in § 18.2-95 or § 18.2-96.

[ Back to top ]

Fraud [ Back to top ]

Credit card fraud [ Back to top ]

Employee theft [ Back to top ]

Money laundering [ Back to top ]

We investigate Virginia theft charges thoroughly and develop our trial strategy accordingly.  As your Virginia theft crime defense lawyer, we will leave no stone unturned when protecting your rights and your freedom.

Contact a Virginia theft crime 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).

The only Virginia Internet sex crime law firm with an attorney who is also a Computer Engineer with expertise in Internet technology and computer forensics.

Our Virginia Internet sex crime defense law firm provides representation to those accused of Internet sex crime.  Some common Virginia Internet sex crimes that we frequently defend include:

• Internet receipt, possession, or distribution of  child pornography online
• Production, sale, financing of child porn
• Age presumption in Virginia possession of child pornography cases
• Internet solicitation of a minor through a chat room
• Attempted indecent liberties and indecent liberties with a minor
• Evidence gathering and administrative subpoena
• Admission to bail in Internet sex crime cases
• Seizure and forfeiture of property used in connection with the exploitation and solicitation of children
• Child Pornography Images Registry

§ 18.2-374.1:1. Possession, reproduction, distribution, and facilitation of child pornography; penalty.

A. Any person who knowingly possesses child pornography is guilty of a Class 6 felony.

B. Any person who commits a second or subsequent violation of subsection A is guilty of a Class 5 felony.

C. Any person who reproduces by any means, including by computer, sells, gives away, distributes, electronically transmits, displays with lascivious intent, purchases, or possesses with intent to sell, give away, distribute, transmit, or display child pornography with lascivious intent shall be punished by not less than five years nor more than 20 years in a state correctional facility. Any person who commits a second or subsequent violation under this subsection shall be punished by a term of imprisonment of not less than five years nor more than 20 years in a state correctional facility, five years of which shall be a mandatory minimum term of imprisonment.

D. Any person who intentionally operates an Internet website for the purpose of facilitating the payment for access to child pornography is guilty of a Class 4 felony.

E. All child pornography shall be subject to lawful seizure and forfeiture pursuant to § 19.2-386.31.

F. For purposes of this section it may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.

G. The provisions of this section shall not apply to any such material which is possessed for a bona fide medical, scientific, governmental, or judicial purpose by a physician, psychologist, scientist, attorney, or judge who possesses such material in the course of conducting his professional duties as such.

[Top of Page]

§ 18.2-374.1. Production, publication, sale, financing, etc., of child pornography; presumption as to age; severability.

A. For purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, “child pornography” means sexually explicit visual material which utilizes or has as a subject an identifiable minor. An identifiable minor is a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting or modifying the visual depiction; and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor.

For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term “sexually explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer’s temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.

B. A person shall be guilty of production of child pornography who:

1. Accosts, entices or solicits a person less than 18 years of age with intent to induce or force such person to perform in or be a subject of child pornography; or

2. Produces or makes or attempts or prepares to produce or make child pornography; or

3. Who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means; or

4. Knowingly finances or attempts or prepares to finance child pornography.

5. [Repealed.]

B1. [Repealed.]

C1. Any person who violates this section, when the subject of the child pornography is a child less than 15 years of age, shall be punished by not less than five years nor more than 30 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section where the person is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 15 years nor more than 40 years, 15 years of which shall be a mandatory minimum term of imprisonment.

C2. Any person who violates this section, when the subject of the child pornography is a person at least 15 but less than 18 years of age, shall be punished by not less than one year nor more than 20 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by term of imprisonment of not less than three years nor more than 30 years in a state correctional facility, three years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section when he is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 10 years nor more than 30 years, 10 years of which shall be a mandatory minimum term of imprisonment.

D. For the purposes of this section it may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.

E. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs or where any sexually explicit visual material associated with a violation of this section is produced, reproduced, found, stored, or possessed.

F. The provisions of this section shall be severable and, if any of its provisions shall be held unconstitutional by a court of competent jurisdiction, then the decision of such court shall not affect or impair any of the remaining provisions.

[Top of Page]

§ 18.2-374.3. Use of communications systems to facilitate certain offenses involving children.

A. As used in subsections C, D, and E “use a communications system” means making personal contact or direct contact through any agent or agency, any print medium, the United States mail, any common carrier or communication common carrier, any electronic communications system, the Internet, or any telecommunications, wire, computer network, or radio communications system.

B. It shall be unlawful for any person to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means for the purposes of procuring or promoting the use of a minor for any activity in violation of § 18.2-370 or § 18.2-374.1. A violation of this subsection is a Class 6 felony.

C. It shall be unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child less than 15 years of age to knowingly and intentionally:

1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person;

2. Propose that any such child feel or fondle the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child;

3. Propose to such child the performance of an act of sexual intercourse or any act constituting an offense under § 18.2-361; or

4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions.

Any person who violates this subsection is guilty of a Class 5 felony. However, if the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age, the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this subsection when the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age shall be punished by a term of imprisonment of not less than 10 years nor more than 40 years, 10 years of which shall be a mandatory minimum term of imprisonment.

D. Any person who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any child he knows or has reason to believe is at least 15 years of age but less than 18 years of age to knowingly and intentionally commit any of the activities listed in subsection C if the person is at least seven years older than the child is guilty of a Class 5 felony. Any person who commits a second or subsequent violation of this subsection shall be punished by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.

E. Any person 18 years of age or older who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting any person he knows or has reason to believe is a child less than 18 years of age for (i) any activity in violation of § 18.2-355 or 18.2-361, (ii) any activity in violation of § 18.2-374.1, or (iii) a violation of § 18.2-374.1:1 is guilty of a Class 5 felony.

[Top of Page]

§ 18.2-370. Taking indecent liberties with children; penalties.

A. Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony:

(1) Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; or

(2) [Repealed.]

(3) Propose that any such child feel or fondle the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; or

(4) Propose to such child the performance of an act of sexual intercourse or any act constituting an offense under § 18.2-361; or

(5) Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this section.

B. Any person 18 years of age or over who, with lascivious intent, knowingly and intentionally receives money, property, or any other remuneration for allowing, encouraging, or enticing any person under the age of 18 years to perform in or be a subject of sexually explicit visual material as defined in § 18.2-374.1 or who knowingly encourages such person to perform in or be a subject of sexually explicit material; shall be guilty of a Class 5 felony.

C. Any person who is convicted of a second or subsequent violation of this section shall be guilty of a Class 4 felony; provided that (i) the offenses were not part of a common act, transaction or scheme; (ii) the accused was at liberty as defined in § 53.1-151 between each conviction; and (iii) it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this section.

D. Any parent, step-parent, grandparent or step-grandparent who commits a violation of either this section or clause (v) or (vi) of subsection A of § 18.2-370.1 (i) upon his child, step-child, grandchild or step-grandchild who is at least 15 but less than 18 years of age is guilty of a Class 5 felony or (ii) upon his child, step-child, grandchild or step-grandchild less than 15 years of age is guilty of a Class 4 felony.

[Top of Page]

§ 19.2-10.2. Administrative subpoena issued for record from provider of electronic communication service or remote computing service.

A. A provider of electronic communication service or remote computing service that is transacting or has transacted any business in the Commonwealth shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications as required by § 19.2-70.3, to an attorney for the Commonwealth pursuant to an administrative subpoena issued under this section.

1. In order to obtain such records or other information, the attorney for the Commonwealth shall certify on the face of the subpoena that there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation concerning violations of §§ 18.2-374.1, 18.2-374.1:1, former § 18.2-374.1:2, and § 18.2-374.3.

2. On a motion made promptly by the electronic communication service or remote computing service provider, a court of competent jurisdiction may quash or modify the administrative subpoena if the records or other information requested are unusually voluminous in nature or if compliance with the subpoena would otherwise cause an undue burden on the service provider.

B. All records or other information received by an attorney for the Commonwealth pursuant to an administrative subpoena issued under this section shall be used only for a reasonable length of time not to exceed 30 days and only for a legitimate law-enforcement purpose. Upon completion of the investigation the records or other information held by the attorney for the Commonwealth shall be destroyed if no prosecution is initiated.

C. No cause of action shall lie in any court against an electronic communication service or remote computing service provider, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of an administrative subpoena issued under this section.

D. Records or other information pertaining to a subscriber to or customer of such service means name, address, local and long distance telephone connection records, or records of session times and durations, length of service, including start date, and types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address, and means and source of payment for such service.

E. Nothing in this section shall require the disclosure of information in violation of any federal law.

[Top of Page]

§ 19.2-120. Admission to bail.

Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person’s criminal history.

A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:

1. He will not appear for trial or hearing or at such other time and place as may be directed, or

2. His liberty will constitute an unreasonable danger to himself or the public.

B. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with:

1. An act of violence as defined in § 19.2-297.1;

2. An offense for which the maximum sentence is life imprisonment or death;

3. A violation of § 18.2-248, 18.2-248.01, 18.2-255 or 18.2-255.2 involving a Schedule I or II controlled substance if (i) the maximum term of imprisonment is 10 years or more and the person was previously convicted of a like offense or (ii) the person was previously convicted as a “drug kingpin” as defined in § 18.2-248;

4. A violation of § 18.2-308.1, 18.2-308.2, or 18.2-308.4 and which relates to a firearm and provides for a mandatory minimum sentence;

5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of the Commonwealth or substantially similar laws of the United States;

6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction;

7. An offense listed in subsection B of § 18.2-67.5:2 and the person had previously been convicted of an offense listed in § 18.2-67.5:2 or a substantially similar offense under the laws of any state or the United States and the judicial officer finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged;

8. A violation of § 18.2-374.1 or 18.2-374.3 where the offender has reason to believe that the solicited person is under 15 years of age and the offender is at least five years older than the solicited person;

9. A violation of § 18.2-46.2, 18.2-46.3, 18.2-46.5 or 18.2-46.7;

10. A violation of § 18.2-36.1, 18.2-51.4, 18.2-266, or 46.2-341.24 and the person has, within the past five years of the instant offense, been convicted three times on different dates of a violation of any combination of these Code sections, or any ordinance of any county, city, or town or the laws of any other state or of the United States substantially similar thereto, and has been at liberty between each conviction; or

11. A second or subsequent violation of § 16.1-253.2 or a substantially similar offense under the laws of any state or the United States.

C. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is being arrested pursuant to § 19.2-81.6.

D. The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public:

1. The nature and circumstances of the offense charged;

2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang as defined in § 18.2-46.1, and record concerning appearance at court proceedings; and

3. The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.

E. The judicial officer shall inform the person of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with § 19.2-124.

[Top of Page]

§ 19.2-386.31. Seizure and forfeiture of property used in connection with the exploitation and solicitation of children.

All audio and visual equipment, electronic equipment, devices and other personal property used in connection with the possession, production, distribution, publication, sale, possession with intent to distribute or making of child pornography that constitutes a violation of § 18.2-374.1 or 18.2-374.1:1, or in connection with the solicitation of a person less than 18 years of age that constitutes a violation of § 18.2-374.3 shall be subject to lawful seizure by a law-enforcement officer and shall be subject to forfeiture to the Commonwealth pursuant to Chapter 22 (§ 19.2-369 et seq.) of this title by order of the court in which a conviction under § 18.2-374.1, 18.2-374.1:1, or 18.2-374.3 is obtained. Notwithstanding the provisions of § 19.2-381, the court shall dispose of the forfeited property as it deems proper, including awarding the property to the agency seizing such property or to a state agency for lawful purposes. If the property is disposed of by sale, the court shall provide that the proceeds be paid into the Literary Fund.

A forfeiture under this section shall not extinguish the rights of any person without knowledge of the illegal use of the property who (i) is the lawful owner or (ii) has a valid and perfected lien on the property.

[Top of Page]

§ 19.2-390.3. Child Pornography Images Registry; maintenance; access.

A. The Office of the Attorney General, in cooperation with the Department of State Police, shall keep and maintain a Child Pornography Registry to be located within the State Police, separate and apart from all other records maintained by either department. The purpose of the Registry shall be to assist the efforts of law-enforcement agencies statewide to protect their communities from repeat child pornographers and to protect children from becoming victims of criminal offenders by aiding in identifying victims and perpetrators. Criminal justice agencies, including law-enforcement agencies, may request of the State Police a search and comparison of child pornography images contained within the Registry with those images obtained by criminal justice agencies during the course of official investigations.

B. The Registry shall include images of sexually explicit visual material in any form including any picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation, presented as evidence and used in any conviction for any offense enumerated in §§ 18.2-374.1 and 18.2-374.1:1.

C. Registry information provided under this section shall be used for the purposes of the administration of criminal justice or for the protection of the public in general and children in particular. Use of the information or the images contained therein for purposes not authorized by this section is prohibited and a willful violation of this section with the intent to harass or intimidate another shall be punished as a Class 6 felony.

D. The Virginia Criminal Information Network and any form or document used by the Department of State Police to disseminate information from the Registry shall provide notice that any unauthorized possession, use or dissemination of the information or images is a crime punishable as a Class 6 felony.

[Top of Page]

Contact a Virginia Internet Sex Crimes 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).

If you are accused of a Virginia computer crime or a Virginia Internet sex crime, we can offer truly unique representation.  Based on our research, attorney Domingo Rivera is the only criminal defense attorney in Virginia with a professional degree and experience in Computer Engineering, an M.B.A. with specialty in Information Technology, and experience with the Department of Defense.  Mr. Rivera is competent in the legal, technical, and computer forensics aspects related to Virginia computer crimes or Internet crime accusations.  To represent you properly, your defense lawyer must not only be well versed in trial techniques but must also be able to command the subject matter underlying computer and Internet crime accusations.

Contact a Virginia computer crime defense lawyer.

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).

In Virginia, DWI is classified as a class 1 misdemeanor carrying a potential maximum of one year in jail, $2,500.00 in fines, civil remedial fees, and driver’s license suspension.

Depending on the blood alcohol levels, a DWI conviction may carry a mandatory minimum jail sentence. In Virginia, if the blood alcohol level (BAC) of the accused was between 0.15 and 0.20, there is a mandatory 5-day jail sentence. If the BAC level was above 0.20, there is a mandatory 10-day jail sentence.  Additionally, a second DWI conviction in Virginia within 10 years carries a mandatory 10-day jail sentence.  A second DWI conviction in Virginia within 5 years carries a mandatory 20-day jail sentence. A third DWI conviction in Virginia within 10 years carries mandatory jail of six months.  Four or more convictions of DWI in Virginia within 10 years of a prior conviction carry a mandatory one-year in jail.

A person may be convicted of DWI if the Commonwealth of Virginia can prove beyond a reasonable doubt that the person was driving while under the influence of alcohol or drugs. Generally, to prove a DWI case in Virginia, the prosecutors will reference the accused driving patterns and the result of the breath test.

Under Virginia DWI laws, if a person refuses to submit to a breath or alcohol test at the police station after being arrested, the person may face additional criminal charges plus an additional driver’s license suspension, if convicted of DWI in Virginia.  Refusal to submit to the test carries with it the possibility of a six-month jail sentence.

A Virginia DWI attorney is well-versed in Virginia DWI laws and can provide you with a competent defense if you are facing DWI charges in Virginia.

The relevant Virginia DWI statute states:

§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc. It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv). For the purposes of this section, the term “motor vehicle” includes mopeds, while operated on the public highways of this Commonwealth.

[ Back to top ]

Under Virginia DWI Law, a person operating a vehicle in the highways of the Commonwealth, the driver is implied to have consented to providing blood and/or breath samples to determine alcohol content.  The relevant statute provides:

§ 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood.

A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.

B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.

C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

[ Back to top ]

For drivers under the age of twenty one, the Virginia DWI statute states:

§ 18.2-266.1. Persons under age twenty-one driving after illegally consuming alcohol; penalty.

A. It shall be unlawful for any person under the age of twenty-one to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.

B. A violation of this section shall be punishable by forfeiture of such person’s license to operate a motor vehicle for a period of six months from the date of conviction and by a fine of not more than $500. The penalties and license forfeiture provisions set forth in §§ 16.1-278.9, 18.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.

C. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.

[ Back to top ]

If you are pulled over for a DWI, you may be subjected to a field sobriety test and may be asked to submit to a field breath test.  You may refuse to submit to the field test but refusing to submit to the breathalizer at the station is a class one misdemeanor.  The preliminary breath analysis statute states:

§ 18.2-267. Preliminary analysis of breath to determine alcoholic content of blood.

A. Any person who is suspected of a violation of § 18.2-266, 18.2-266.1, subsection B of § 18.2-272, or a similar ordinance shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. The person shall also be entitled, upon request, to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. His breath may be analyzed by any police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department in the normal discharge of his duties.

B. The Department of Forensic Science shall determine the proper method and equipment to be used in analyzing breath samples taken pursuant to this section and shall advise the respective police and sheriff’s departments of the same.

C. Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department and is suspected by such officer to be guilty of an offense listed in subsection A, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution for an offense listed in subsection A.

D. Whenever the breath sample analysis indicates that alcohol is present in the person’s blood, the officer may charge the person with a violation of an offense listed in subsection A. The person so charged shall then be subject to the provisions of §§ 18.2-268.1 through 18.2-268.12, or of a similar ordinance.

E. The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.

F. Police officers or members of any sheriff’s department shall, upon stopping any person suspected of having committed an offense listed in subsection A, advise the person of his rights under the provisions of this section.

G. Nothing in this section shall be construed as limiting the provisions of §§ 18.2-268.1 through 18.2-268.12.

[ Back to top ]

As discussed above, refusal to submit to a breath or blood test at the station is a separate crime.  The relevant statute provides:

§ 18.2-268.3. Refusal of tests; penalties; procedures.

A. It shall be unlawful for a person who is arrested for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood as required by § 18.2-268.2 and any person who so unreasonably refuses is guilty of a violation of this section.

B. When a person is arrested for a violation of § 18.2-51.4, 18.2-266, 18.2-266.1 or, subsection B of § 18.2-272 or of a similar ordinance and such person refuses to permit blood or breath or both blood and breath samples to be taken for testing as required by § 18.2-268.2, the arresting officer shall advise the person, from a form provided by the Office of the Executive Secretary of the Supreme Court, that (i) a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) the criminal penalty for unreasonable refusal within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal is a Class 2 misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor. The form from which the arresting officer shall advise the person arrested shall contain a brief statement of the law requiring the taking of blood or breath samples, a statement that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and the penalties for refusal.

C. The arresting officer shall, under oath before the magistrate, execute the form and certify, (i) that the defendant has refused to permit blood or breath or both blood and breath samples to be taken for testing; (ii) that the officer has read the portion of the form described in subsection B to the arrested person; (iii) that the arrested person, after having had the portion of the form described in subsection B read to him, has refused to permit such sample or samples to be taken; and (iv) how many, if any, violations of this section, § 18.2-266, or any offense described in subsection E of § 18.2-270 the arrested person has been convicted of within the last 10 years. Such sworn certification shall constitute probable cause for the magistrate to issue a warrant or summons charging the person with unreasonable refusal. The magistrate shall attach the executed and sworn advisement form to the warrant or summons. The warrant or summons for a first offense under this section shall be executed in the same manner as a criminal warrant or summons. If the person arrested has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer may read the advisement form to the person at the medical facility, and issue, on the premises of the medical facility, a summons for a violation of this section in lieu of securing a warrant or summons from the magistrate. The magistrate or arresting officer, as the case may be, shall forward the executed advisement form and warrant or summons to the appropriate court.

D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant’s privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

Contact a Virginia DUI / DWI lawyer

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).

Virginia misdemeanors are punished up to a maximum of one year in jail and $250.00 in fines.  Virginia misdemeanors are classified as follows.

Class 1 Misdemeanor – Maximum Punishment = 12 months in jail and $2,500 in fines

Class 1 Misdemeanor – Maximum Punishment = 6 months in jail and $1,000 in fines

Class 3 Misdemeanor – Maximum Punishment = $500 in fines

Class 3 Misdemeanor – Maximum Punishment = $250 in fines

Some misdemeanor charges in Virginia may include:

• possession of marijuana and other misdemeanor drug crimes
• Petit (Petty) larceny, shop lifting, and other misdemeanor theft crimes
• Assault and battery, and domestic assault and battery (domestic violence)
• Reckless Driving, DWI / DUI, Driving on a Suspended License, and other traffic offenses
• Destruction of private property or destruction of public property
• Trespassing
• Stalking

Contact a Virginia misdemeanor defense lawyer

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).