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FELONIES, MISDEMEANORS, AND INFRACTIONS

Traditionally, a felony was any crime that could be punished by death or incarceration in the penitentiary for a year or more while a misdemeanor was limited to incarceration in a jail for up to one year. Today, that distinction is no longer absolutely true, but it's close. In Virginia there are six classes of felonies and four classes of misdemeanors. Punishments are listed in Viriginia Code sections 18.2-10 (felonies) and 18.2-11 (misdemeanors). Traffic infractions are neither, but some traffic offenses are misdemeanors and some are felonies. To learn more about traffic offenses that happen to be criminal offenses, click on the traffic link.

NOT BEING READ YOUR RIGHTS

If you're arrested and the police don't read you your rights, have your constitutional rights been violated? No. There's nothing that requires the police to give you the Miranda warnings when they arrest you. You can be arrested and convicted without ever being told that you have the right to remain silent. Failure of the police to "Mirandize" you upon your arrest simply prevents your subsequent custodial statements from being used against you in court. (Please note that there are exceptions to even this rule.) If you are obviously intoxicated while walking down the street, the police don't need your testimony to get a conviction for public intoxication; they can simply testify to your appearance and demeanor based on what they saw with their own eyes.

DISMISSED CHARGES

If a charge is dismissed, it means the charge is no longer pending against you. You weren't found "guilty" and you weren't found "not guilty". Charges are usually dismissed for one of two reasons: Either there was something technically wrong with the charge or arrest that prevented prosecution or the defendant really was guilty but the judge dismissed the charge after allowing the defendant to perform some type of pre-judgment punishment such as community service. Dismissed charges show up on your criminal record as dismissed. They aren't automatically expunged. If you've had a charge dismissed and a potential employer asks whether you've ever been charged with a crime, you have to say "yes," but if he asks whether you've been convicted, you can say "no."

YOUR CRIMINAL RECORD

People often speak of their "criminal record" as if there is a single record containing the details of every criminal charge brought aginst them. No such universal record exists. In reality, people can have many different criminal records. Each law enforcement agency keeps records of its criminal investigations, arrests, and other charges. Each court keeps records of the cases brought before it. Prosecutor's offices, jails, and probation officers keep records too. Each state also has its own central criminal information system that aggregates information on arrests, charges, and case dispositions. In Virginia, arrests for felonies and some (but not all) misdemeanors are reported to the state's Central Criminal Records Exchange (CCRE), which is run by the Virginia State Police. The dispositions of those cases are also reported to the CCRE. (See Virginia Code section 19.2-390.) Generally, when a potential employer or professional licensing board does a "criminal background check" on a person, it's this kind of record that is requested and reviewed. (Note that you can request a copy of your CCRE record for a small fee.) Some of the information reported to the CCRE is further reported to the FBI's National Crime Information Center (NCIC). These are just the government records. Much of the information in these records is available to the public and compiled by private background investigation services (such as ChoicePoint), which are being used more and more often by big companies for screening employment applicants. So when a person asks if a charge or conviction will go on their record, it usually depends on which record they're talking about.

EXPUNGEMENT

Expungement is a process by which a former criminal defendant can have access to his criminal record restricted. Each state has its own laws and procedures for expungements. In Virginia, if a charge is expunged, the records related to the charge usually aren't actually destroyed. The records still exist and can be accessed by police and prosecutors if a judge gives them permission; however, the general public can't access the records. Once a charge is expunged, employers (other than the federal government) are forbidden by law from asking about the charge. So if you've had a charge expunged and a potential non-government employer asks whether you've ever been charged with a crime, you're legally entitled to answer "no." Not all charges can be expunged. The federal government isn't bound by state expungement laws and usually asks about expunged charges on employment applications, security clearance applications, and immigration forms.

In Virginia, you can have a charge expunged only in the following situations: (1) you were acquitted of the charge, (2) the prosecutor asked the judge to dismiss the charge as a nol pros (short for nolle prosequi), (3) the Governor pardoned you, or (4) the judge dismissed it for technical reasons unrelated to completion of a pre-judgment alternative sentencing program or completion of a first-time offender program. To get the charge expunged you must petition the circuit court (even if it was a district court case) of the county where you were charged or where you currently reside. There are now expungement petition forms available at the Virginia Courts website but you should consult an attorney to make sure that you are using the correct form and that you have filled it out correctly.

PRE-PAYING MISDEMEANOR TICKETS

A number of minor misdemeanor offenses, such as public intoxication, don't require you to appear in court. Instead, you can just mail your fines and costs to the court and forget about it--almost. When you pre-pay a misdemeanor ticket, you are admitting guilt and you will be officially convicted of the charge. Most pre-payable misdemeanor convictions don't go on your state criminal record, but the convictions will appear in court and police records--including the Virginia Courts website. Once the conviction appears on the internet, you can be sure that the private background investigation companies will have a record of it, which means that potential employers can find out about it even if the conviction doesn't go on your state criminal record. For many of these minor offenses, there are alternative pre-judgment sentencing programs that you can opt into. In some cases the community service costs more than just paying the fine, (yes, you have to pay to do community service) but the charge will be dismissed if you complete the program and don't have any more violations during an unsupervised probation period (usually 6-12 months). If you've got a clean record, it's best to avoid a misdemeanor conviction by going to court and taking the alternative program.

FAKE IDs

It is a criminal offense for a person under the age of 21 to use or attempt to use an altered or fake ID or the ID of another person to purchase alcohol. (See Virginia Code 4.1-305.) This offense is a Class 1 misdemeanor, which means that jail time is possible. The minimum punishment is a $500 fine or 50 hours of community service plus (either way) suspension of the offender's driver's license for six to twelve months. First time offenders might be able to take an alternative, pre-trial program and avoid a conviction and license suspension. Alternatively, the police can bring charges under code section 46.2-347, which is only a Class 3 misdemeanor and is punishable by a fine of up to $500 and suspension of the offender's driver's license for one to twelve months; however, the police usually charge under one of the other, harsher, code sections.

It is also a criminal offense to obtain, possess, sell, or transfer any document for the purpose of establishing a false status (such as age) or identity for himself or any other person. (18.2-204.1)   A violation is a Class 1 misdemeanor unless the document is used to purchase a firearm, in which case it is a Class 6 felony. Note that it's a violation to give someone your ID so they can prove a false age.

Making, selling, or advertising for sale any fictitious ID is a Class 1 misdemeanor. Simply possessing one is a Class 2 misdemeanor. (18.2-204.2)

Note that all of the offenses described above are CRIMES. Furthermore, because the violations involve committing or helping others to commit a fraud, they are considered to be crimes of moral turpitude, which can have consequences later down the road that other crimes of the same class don't.

WHAT SHOULD YOU DO IF YOU'VE BEEN CHARGED WITH A CRIME?

If you're a VT student, make an appointment to see the SLS Attorney.

 


 

DISCLAIMER: The information provided on this website may not be current or valid. You must not rely on the information contained here without first speaking to a licensed attorney. Always speak to a licensed attorney regarding any legal issue you may have.

 

This page is located at http://www.legal.sga.vt.edu/criminal.htm.

This page was last updated July 7, 2008.