Recent Posts in first offender Category
| May 09, 2012 |
| Can my charges be expunged? |
| Posted By Shawn Cline |
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Rarely does a day go by where I don't receive a call from someone who is seeking an expungement for a charge on their record. These people are often struggling to find meaningful employment because of a charge somewhere in their past that continues to show up on background checks. Unfortunately, this information is a matter of public record, and employers and schools often use this to (lawfully) discriminate against individuals who would otherwise be qualified for positions.
In a perfect world, I would be able to help anyone who has turned over a new leaf and put their criminal past behind them with securing an expungement. Unfortunately, Virginia only authorizes expungements under very limited circumstances. Virginia Code §19.2-392.2 allows for expungement of charges where the charge is dismissed by the court or where the Commonwealth's Attorney takes a nolle pros action, which basically means that they decline to prosecute the case. The code does not distinguish between felony charges and misdemeanors in terms of eligibility (although it does create a higher burden for granting felony expungements).
What is most glaring in this code section is that it does not allow for expungement of any conviction, however insignificant the charge and however light the punishment. So if you were convicted of drunk in public and fined $25 by the court, that will stay on your record for the rest of your life.
Also of importance is the interplay between "first offender" statutes such as those related to drug possession (§18.2-251) and domestic violence
(§18.2-57.3). A defendant who completes a first offender program is NOT eligible for an expungement of the charge, because to be placed in the first offender program, a defendant must either plead guilty, or stipulate that the evidence would be sufficient for a conviction. Many attorneys rush their clients toward the first offender program as an expedient way to secure a dismissal of a charge. These defendants often find themselves years later explaining to employers why they were charged with domestic violence or possession of drugs. These factors need to be considered prior to accepting the first offender program, not after the fact when it is to late to change the disposition.
The expungement process is quite lengthy. From the date that the petition is filed to the date when the record in Richmond is sealed can take up to six months. Numerous agencies are involved, form the Courts and Commonwealth's Attorney, to the Virginia State Police. It is a bit of bureaucratic nightmare, but the end result in the right case is a citizen who can truly move past a prior criminal charge.
If you are being held back by a criminal charge as you try to move on with your life,
call us right away. We will be able to tell you if you qualify, and can file a petition on your behalf and make the associated court appearances. The process is quite technical and sometimes requires the presentation of witnesses and evidence, but in the end it is always worth the effort. There is no substitute for a clean record, particularly in times like these where employers are looking at multiple applicants for every job available. Don't let your record hold you back!
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| April 29, 2011 |
| Is it better to be prosecuted in a military court or a civilian court? |
| Posted By Shawn Cline |
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I get this question fairly regularly, for a couple of reasons. First, because I practice exclusively criminal defense in southeastern Virginia, a large percentage of my clients are military. Second, not many attorneys around here practice in civilian courts as well as military courts, so few attorneys know the differences between the various systems. But the short answer to this question is: "it depends". Clients hate this answer because it sounds like the lawyer is being evasive, but the reality is that it truly does depend, and here is why:
First and foremost, there are certain offenses that are a big deal in the military, but might result in misdemeanor charges and minor penalties in state court. A good example is possession of a controlled substance. In civilian court, these charges often result in placement in the first offender program (if the defendant is eligible), which really is just probation, some classes, and a six month license suspension. On the other hand, in military court possession of controlled substances can easily result in many months in the brig, depending upon the circumstances. That is not to say that jail time is not possible in the civilian side, because it most certainly is, but simply that jail time is a virtual certainty in military court if you are convicted of this offense.
Similarly, if you don't come to work as a civilian, you might get fired. But if you continually don't come to work in the military, you will likely face court-martial, and potentially a long term in the brig. Same goes for disrespecting your boss. This is bad for your career as a civilian, but it can be bad for your freedom in the military. So in this way, there are some offenses that are better heard in civilian court than court martial.
On the other hand, there are other offenses that are much better in the military system. A good example is possession of child pornography. The problem with this offense in the federal and state systems (particularly federal) is that the sentencing guidelines are brutal. They are also somewhat arbitrary. Some prosecutors will charge every image as a separate offense, some will just charge a few and let others slide to keep the sentence reasonable. But the military system has no sentencing guidelines. All the military system has are maximum penalties for each offense. Without sentencing guidelines, an effective defense attorney can get outstanding sentences in military court on child pornography cases; often times just a fraction of what would be imposed in the state or federal system.
There are differences in procedure as well. In military cases, the prosecutor must turn over virtually all the evidence in the case, and must do so early in the process. Civilian discovery (particularly in state court) is far more limited. For this reason, it is much more difficult to anticipate what the prosecutor will do in civilian court.
There are countless other differences, far more than I can explain in this posting. But what should matter to you is that your lawyer understands these differences.
If you are facing criminal charges, and you are in the military, you owe it to yourself to contact an attorney who knows both the civilian and military systems inside and out... and I can tell you that there are few of us around who do. Do your homework, and make sure that you are dealing with a lawyer who can fight for you wherever your charges ultimately end up. Contact us, we are here to help! |
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| February 16, 2011 |
| Prescription fraud in Virginia |
| Posted By Shawn Cline |
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One of the most common drug offenses in Virginia, after possession of marijuana, is prescription fraud. Individuals that you would never think of as criminals can find themselves facing prescription fraud charges. These cases usually involve individuals within the health care profession, such as nurses, pharmacists, doctors, and pharmacy technicians. Easy access to presription narcotics can lead to temptation and pressure from friends and family to procure pills without authorization. Often times these individuals or their friends and family are suffering from addiction related to a prior medical condition for which they were prescribed pain killing medication.
While these people more often that not need treatment instead of punishment, Section 18.2-258.1 of the Code of Virginia makes this conduct a Class 6 Felony, punishable by up to 5 years in the state penitentiary! If you or someone you love is facing a charge of prescription fraud,
contact us right away. There is much that can be done to defend this charge. Often times a skilled attorney is able to present alternative dispositions to the Commonwealth's Attorney in these matters, avoiding prison time and felony convictions. The statute provides for a first offender program for eligible persons, whereby the charge is reduced to a misdemeanor after completion of certain statutory requirements. The bottom line is that this charge is serious, but can be addressed by a skilled and aggressive criminal attorney. |
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