By David A. Hirsch, Esq. ©
Receiving a ticket, or worse, being arrested, is traumatic enough. What is even more unsettling is the uncertainty of what is going to happen next. Too often the legal system is viewed as complex and mysterious. Hopefully this article can shine some sunlight on the process.
For traffic cases, there are essentially two different kind of citations: infractions and misdemeanors. Misdemeanors are more serious offenses which carry the potential of jail time, large fines and possible loss of driving privileges. Typical traffic misdemeanors include drunk driving, driving on a suspended license, driving without being licensed, violating the terms of a restricted license, reckless driving and hit and run. In certain instances, drunk driving and hit and run can be charged as felonies.
Infractions are far less serious such as lower speeding cases, stop sign violations, improper lane changes, etc. Infractions carry a maximum fine of $250.00. Most infractions can be pre-payable. However if there was an accident, normally a court appearance is required.
In almost all instances in Virginia, a moving violation carries points against one’s driver’s license. Virginia has three categories of violations: violations which carry three demerit points, violations which carry four demerit points and violations which carry six demerit points. If a Virginia-licensed driver accumulates twelve demerit points within twelve months or eighteen demerit points within twenty-four months, the DMV will order the driver to take a driver improvement clinic. Be aware that if a Virginia-licensed driver gets a moving violation out-of-state, and that state is a member of the Driver License Compact, that ticket will be reported to the Virginia DMV and the driver will be assigned demerit points for the out-of-state conviction. At last check, D.C., Maryland and approximately forty states were all on the Compact.
For traffic misdemeanors, you will have to go to court. If you wish to challenge your traffic
infraction, you will have to go to court.
In the accident cases, some localities use the first court appearance
solely for scheduling purposes, so you may have to go twice. Once you go to court, you have three options:
plead guilty, plead no contest or plead not guilty. Although many people do it, there is no such
thing as “guilty with an explanation.”
Regardless of how you plead, you will always be given an opportunity to
provide an explanation if you so choose.
You also have a constitutional right to not answer any questions
or provide any explanation.
A plea of guilty or a plea of no contest means the court will find you guilty of the offense as charged. You can still present your argument as to what the appropriate punishment should be, but you will be found guilty. If you feel you were guilty of a lesser offense, but not the offense as charged, your plea should be not guilty and then you should explain the circumstances when it comes to your part of the case. For accident cases in which there were personal injuries, keep in mind that Virginia law permits guilty pleas and no contest pleas to be used in evidence in civil cases, so you may wish to consult with your insurance carrier and/or with an attorney before making the decision to plead guilty or no contest in such cases.
In some jurisdictions, when you go to court, you will have the opportunity to discuss your case with a prosecutor to see if you can work out some agreed resolution. (This is not the case in Fairfax County.) In Virginia, because we are a Commonwealth and not a state, our prosecutors are called Commonwealth’s attorneys rather than District attorneys.
If you are charged with a traffic misdemeanor, and if the prosecution will not waive the possibility of a jail sentence, then you have the right to an attorney. If you cannot afford an attorney, so advise the court and the court will have you interviewed to see if you qualify for a court-appointed attorney. If you do qualify, the court will appoint an attorney to represent you. If you do not qualify, the court will continue the case for you to hire an attorney and come back later for trial. Most courts will consider you to have given up your right to counsel if you then return without an attorney.
In Virginia, traffic infractions and traffic misdemeanors are heard in the General District Court. There are no juries at this level of court. This is also not a court of record. That means that the proceedings are not taken down by tape, video or court reporter. Thus if you wish to have a record of your hearing for possible use later, you have to privately hire a court reporter.
Under Virginia law, any person who is unhappy with their result in the General District Court may “appeal” the case to the higher level trial court, called the Circuit Court. You do have to pay administrative costs to pursue this. The practical effects are that “noting an appeal” erases the General District Court result as if it did not occur and it gives you a new trial date in the Circuit Court with a new judge. Either you or the prosecution can request a jury for this new trial, but it will be a jury of seven people rather than a jury of twelve. Note that if you request the jury and you are found guilty at trial in Circuit Court, your court costs will include the cost of impaneling that jury. If you do wish to appeal to Circuit Court, your appeal must be noted in writing, in the General District Court clerk’s office, within ten calendar days of the date of your hearing in the General District Court or you forfeit your right to appeal.
Upon appeal, the Circuit Court judge is not supposed to review the result of what happened in the General District Court. If there is a jury, they will never be informed that there had been any earlier proceedings in the case. If you appeal and are again found guilty, because this is an entirely new trial, your punishment may be less than, the same as or more than what you received in the General District Court. If it ends up being more than what you received below, that is not a basis for challenging the result.
Thus far we have only discussed traffic cases. We will now review criminal cases. Misdemeanors are violations which carry
maximum punishments of up to $2,500.00 in fines and/or twelve months in
jail. Class 3 and Class 4 misdemeanors
carry only fines and many are pre-payable the same as traffic infractions.
Class 1 and Class 2 misdemeanors carry the potential of jail time. The process for Class 1 and Class 2 criminal misdemeanors works exactly the same as does the process discussed above for traffic misdemeanors.
One thing which may occur on a traffic misdemeanor or on a Class 1 or Class 2 criminal misdemeanor is that you may be arrested rather than released upon a summons. If that occurs, you may be taken by the police to an interview room. Whether or not you are advised of your rights, you should know that anything you say will in fact be used against you later in the prosecution. You should also be aware that, regardless of what they say, police officers do not have the authority to make legally binding promises. Only the prosecutor later has that authority. If you are asked to discuss the case, the wisest thing always is to say that you will not speak until you have had the opportunity to consult with an attorney.
If you are arrested, Virginia law requires that you be transported to a Magistrate. This is an appointed judicial officer who determines what charge(s) initially should be filed and who conducts a bail/bond hearing. Once again, you should not discuss the case in front of the Magistrate. The Magistrate is not there to decide guilt or innocence nor is the Magistrate there to decide the legality of the officer’s conduct. Additionally, the police officer is with you when you are before the Magistrate so anything you say about the case will be used against you later in the prosecution.
Under Virginia law, the Magistrate is supposed to ask you questions designed to determine whether your release would be an unreasonable danger to yourself or to others and whether you will appear for trial. Besides the offense with which you are being charge, the Magistrate is required to consider your physical and mental condition, your family ties to the community, your employment history, your financial resources, your length of residence in the community, your other ties to the community, your past conduct and your past criminal history of any. These are the types of responses you should be discussing with the Magistrate and nothing else. If it is possible, you should ideally arrange to have family members and/or responsible friends travel down to the Magistrate as well to independently vouch for these factors on your behalf.
Thus far we have discussed traffic cases and misdemeanors. Felonies are any criminal violations which carry at least one year’s incarceration in the state prison system. Felonies also carry a variety of civil consequences such as loss of voting privileges, disqualification from serving jury duty, disqualification from holding a variety of offices, disqualification from purchase or use of a firearm, etc. If one is charged with a felony, the process will always be started with a custodial arrest and transportation before a Magistrate.
In Virginia, the first step in the felony process is an
Arraignment. If you were not released by
the Magistrate, you will appear in the General District Court where a judge
will review the terms under which you are being held and the judge will review
whether you can afford an attorney or whether you will need to be appointed an
attorney. Once you have an attorney, the
attorney can then file a bond motion to try and obtain your release from
pre-trial detention.
If you were able to be released after appearing before the Magistrate, the next step in the felony process is the preliminary hearing in the General District Court. This is essentially a safety-valve built into the process. It is an additional review of serious charges before they are sent further along in the system.
At the preliminary hearing, the prosecution puts on a summary of its evidence through one or more of its witnesses. The defense may cross-examine the witnesses and, if they choose, the defense may also put on its own evidence. At the conclusion of the preliminary hearing, the judge must decide whether or not there is probable cause that you have committed this offense. Probable cause is the lowest standard of proof in our legal system, essentially meaning that it is more likely than not.
If the judge decides that there is no probable cause, the case will be dismissed and you will be released from any bond obligation. There is, however, the chance that the prosecution can later reinstate the charge by presenting it to the grand jury for consideration. If the judge decides that there is probable cause, the case will be “bound over.” That means the case is forwarded to the Circuit Court where it will be presented to a grand jury.
Tactically, it is common for both the prosecution and the defense to try and negotiate some agreed resolution of a felony criminal case at the preliminary hearing stage of the process. When hiring an attorney to represent you on a felony charge, you should always make sure you and your attorney have a clear understanding of whether the representation and fee includes representation beyond the preliminary hearing stage if the case is not resolved at that point.
Grand jurors are selected from the same pool of persons as is used for the selection of trial jurors. Typically, a grand jury will consist of five to seven jurors. The grand jury meets in secret. The prosecution again presents a summary of its evidence through one or more law enforcement witnesses. However, unlike the preliminary hearing, the prosecutor may only advise the grand jury of its legal obligations and answer questions regarding the legal elements of an offense, but may not participate in presenting the evidence itself nor may the prosecutor comment upon the case. Also unlike the situation at the preliminary hearing, the defense has no right to be present at nor to present evidence to the grand jury.
The grand jurors then conduct an analysis similar to that of a judge at a preliminary hearing. Is there probable cause to believe that this accused committed this offense? Because new, additional or different evidence may have been presented at this level, the original charge may be changed to one more serious or less serious or additional charges may be added to the case. If the grand jury does decide that a charge or charges should go forward against a person, they issue an indictment or “a true bill.” At least four grand jurors must agree upon an indictment.
If the grand jury does issue an indictment, the next
appearance will be Term Day in the circuit court. The trial, or plea date, is scheduled at Term
Day. At this point, either the
prosecution or the defense can request that a jury trial be scheduled. After this date, there is an arraignment in
the Circuit Court. Again, the attorney
status is reviewed and the trial or plea date is confirmed.
Assuming the case is not resolved by a plea agreement, the case will be tried by a jury. The jurors decide guilt or innocence, on each charge, by a standard of “proof beyond a reasonable doubt.” For felony cases, there are twelve jurors. For misdemeanor and traffic cases heard in the Circuit Court, there are seven jurors. The jurors must be unanimous as to their verdict. If they convict of any charge, both the prosecution and the defense can then present evidence with regard to what the proper sentence should be. The jurors then resume a second round of deliberations to decide upon the sentence. Again, they must be unanimous as to this decision.
In most felony cases, the judge will then order a pre-sentence investigation and delay formal imposition of sentence pending return of that report. The judge will consider the pre-sentence report, and the prosecution and the defense can present evidence, at this final sentencing hearing. The judge may reduce the jury’s suggested sentence, or the judge may suspend all or part of the jury’s suggested sentence, but the judge may not increase the jury’s suggested sentence.
This is the end of the line for the vast majority of cases. Cases in which the accused pled “not guilty” throughout the process can be appealed to the appellate level cases. All cases, except for death penalty cases, go first to the Court of Appeals of Virginia. That Court may or may not choose to hear a case. At this level and beyond, the hearing moves from an evidentiary hearing to a hearing regarding briefing and oral argument as to principles of law governing the case. The appellate courts may throw out the conviction, they may uphold the conviction or they may reverse the conviction but send the case back for a new trial correcting any legal errors which occurred in the original trial.
As you can see, going through the court process can, at times, be complex and lengthy. Hopefully, this information will give you a greater understanding of what is occurring should you ever have the misfortune of being cited for a traffic or criminal violation.