First Offenses

My clients always ask, "Since this is my first offense, can the judge just let me do community service and keep the charges off of my record?" The answer is maybe. It is no secret that trial courts, at all levels, have an unbroken history of deferring findings of guilt, in fact-specific situations, in order to reduce or dismiss charges after defendants comply with certain conditions set by the courts. What this means is that in the past, a court would find that there was enough evidence for guilt then continue the case for 12 months. If the defendant kept the peace and was of good behavior, the Court would dismiss the charge. The idea was that everybody makes mistakes. Accordingly, for certain minor infractions, the court looked at a first offense as a warning.

However, in a recent decision from the Virginia Supreme Court, that Court held that absent explicit statutory authority courts can only accept pleas and decide cases in terms of guilty or not guilty. In light of this decision, many trial courts in the state no longer provide that first mistake disposition. Specifically courts in Henrico County have stated emphatically, that they will not take cases under advisement to be dismissed. The seemingly unfair result of this position is that a drug addict who is charged with felony possession of heroin can get his charge dismissed but a college student that makes a silly mistake shoplifting cannot.

The exceptions to this rule are domestic assault, trespass and drug charges. In those cases the Virginia Code (18.2-57, 18.2-118, 18.-53.1, 18.2-248.1) specifically instructs the trial court how to take charges under advisement and keep a defendant’s record clean. As a result, most first offense possession of marijuana, possession of cocaine, possession of heroin, trespass charges and assaults in juvenile and domestic relations courts are resolved with community service, court related education courses and then dismissed.

Some courts still allow the “first mistake” result. Often, the Commonwealth’s Attorney’s in those jurisdictions will amend charges to fit in within one of the statutory exceptions. Good attorneys know where and when this practice can be utilized to their client’s advantage. I have practiced in more than twenty different jurisdictions within the state. I know which jurisdictions are still open to this approach.

It is important for an attorney to explore whether the “first offender or first mistake” tactic is available for his client. A person’s criminal record is one of the most precious things in their life. It is the standard for the way he will be measured by his family, the courts, schools, and future employers. As a result, I do everything in my power to make sure that my client’s records stay clean.

Contact me if you need an experienced Richmond criminal defense attorney.

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