Most people think that the first time they get in trouble, the justice system will give them a break since they don't have a prior record. Sadly, the request for leniency has different results depending on where that person goes to court.
For many years some Virginia courts refused to enter deferred dispositions or take a case under advisement unless there is a law that allows such a finding. The Virginia Code only has express first offender status for the following crimes: Underage Possession of Alcohol (Virginia Code § 4.1-305(F)); Domestic Violence (Virginia Code § 18.2-57.3); and Possession of Drugs (Virginia Code § 18.2-251).
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Can Criminal Convictions be Expunged?
A criminal conviction is a devastatingly permanent matter. Virginia convictions cannot be expunged and they do not come off of a record like a speeding ticket. Many otherwise law abiding citizens have occasions when they make a bad decision.
Alcohol and trying personal circumstances can lead to bad judgement. There is no reason why a mistake someone makes in his twenties should prevent him from getting a job when he is forty or fifty years old.
THE BAD DAYS:
Lawyers and citizens were frustrated that a person could keep a clean record after a felony cocaine charge but not after a $5.00 shoplifting charge. Most judges in Virginia robotically followed the law on this issue. Despite the tireless work of a great lawyer, there was limited discretion. If the evidence was sufficient for guilt, a court would find a defendant guilty; permanently affecting his record.
Regardless of how clean a person's record once was, one mistake could permanently affect him. The Virginia Court of Appeals directed trial judges to act this way. The Appeals Court ruled that trial judges could not decline to convict a person based on a belief that a defendant deserved leniency.
In some cases prosecutors realized how unfair this was. A good lawyer could negotiate a resolution that did not result in a permanent conviction. In this small number of jurisdictions common sense prevailed over case law. Some judges and prosecutors worked around the Appeals Court by continuing cases to allow a defendant to complete a probationary period, crime awareness classes or community service. At the end of that term, the court would dismiss the charge.
FINALLY A CHANGE
In 2011, the highest court in the state finally changed the law. The Virginia Supreme Court held Virginia courts have the "inherent discretionary authority" to take a matter under advisement “and to continue the case for future disposition, subject to such lawful conditions as the court might proscribe.”
In 2014, the Virginia Supreme Court issued another decision that gave judges even more power to craft unique dispositions for citizens that deserved a second chance.
WHAT HAPPENS NOW:
Courts and prosecutors have the authority to do the right thing. A good lawyer can negotiate to reach a resolution that keeps a person's record clean. In most situations (other than drugs, domestic violence and alcohol) there are still no specific first offenders programs. Attorneys must be creative and persuasive to get what their clients need.
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