Virginia Criminal and Traffic Law Blog

Felony v. Misdemeanor

What is the difference between a felony and a misdemeanor in the Commonwealth of Virginia?  The simple answer is the punishment that one can receive for conviction of a crime.  Felonies are crimes that are punishable by death or imprisonment in a state correctional facility (prison).  All other crimes are considered misdemeanors.  Misdemeanor incarceration, which may not exceed 12 months, typically takes place at locally run facilities, such as county or regional jails. 

Misdemanors are divided into four classes, with Class 1 being the most serious.  The maximum punishments for the different classes of misdemanors are as follows:

Class 1:  12 months in jail; $2500 fine
Class 2:   6 months in jail; $1000 fine
Class 3:  $500 fine
Class 4:  $250 fine

Felonies are divided into six classes, again with Class 1 being the most serious.  The maximum punishments for the different classes of felonies are as follows:

Class 1:  Death, if older than 16 at time of offense and not mentally retarded; or,
              Life imprisonment and/or $100,000 fine
              *** If defendant is less than 16 at time of offense or is mentally retarded, death
                   penalty is not authorized.
Class 2:  20 years to life imprisonment and/or $100,000 fine
Class 3:  5-20 years imprisonment and/or $100,000 fine
Class 4:  2-10 years imprisonment and/or $100,000 fine
Class 5:  1-10 years imprisonment or 12 months in jail; $2,500 fine
Class 6:  1-5 years imprisonment or 12 months in jail; $2,500 fine

Certain crimes, such as grand larceny, are termed unclassified felonies.  This is because the punishment for conviction of these crimes is defined by the specific statute criminalizing the offense, not by the general guidelines described above.

Increased Fines on First Time Offenders

Take a look at this article from The Daily Press in Hampton Roads about proposed legislation to increase traffic fines to fund transportation projects.  The proposed bill would impose an additional $100 fine for traffic offenses that carry penalties of four demerit points.  Such offenses include speeding 10-19, failure to use a turn signal and following too closely.  But it does not end there. 

If you carry a balance of at least 4 demerit points, you will be assessed an annual penalty of $100, plus another $75 fine for each additional demerit point beyond four.  The bill has been labeled an "abusive driver" bill, despite the fact that only two violations could subject a person to these stiffer penalties. 

The problem I have with this bill is the potential collateral effects it could have on the judicial system as well as the general population.  A large segment of our population already does not have the financial ability to pay for traffic fines assessed to them.  As a result, many violators have their licenses suspended for not paying the fines, but continue to drive out of necessity.  I am in no way condoning such behavior, but at the same time realize that for some, there may be no other way to get to work, the doctor, the grocery store, etc.  If the General Assembly were to pass this bill, we will only see an increase in this problem as more people will be unable to afford the fines being proposed.  Our court system will subsequently become even more congested than it currently is.  Anyone who has spent a morning in traffic court can attest that it can be as bad if not worse than waiting at DMV. 

Interesting to note that a patron of this bill, David Albo, is a prominent Northern Virginia defense attorney.  Northern Virginia, revenue for highway projects?  You do the math.

A Primer On Domestic Assault Cases

     In my practice, I represent a large number of court-appointed criminal defendants.  A large percentage of these clients either are charged with, or have been charged in the past with assault on a family member.  Virginia Code Section 18.2-57.2 makes it a Class I misdemeanor for a person, including juveniles, to commit assault and battery against a family or household member.  Consequently, the maximum punishment for a first or second conviction of this offense includes 12 months in jail and a $2500 fine.  A third conviction within 20 years is punishable as a Class 6 felony, meaning 12 months in jail or 1 to 5 years in prison, as well as a maximum $2500 fine.

    Who is considered a family or household member?  Obviously one's spouse, children, parents and siblings are for the purposes of this statute.  Grandparents, grandchildren, stepparents, and stepchildren also are covered by this statute.  Additionally, an ex-husband or ex-wife are included within this definition even if you don't live with them.  In-laws are considered family under this law only if they live in the same house as the defendant.  If you have a child but are not married, the child's other parent is protected under this statute.  Finally, if you live together with someone or have in the past 12 months cohabited with someone, that person and any of their children living with you are considered family or household members.

     A question I receive quite often is "why can't my spouse/girlfriend/parent/etc. drop the charge?"  The answer is that once an arrest is made, the alleged victim merely becomes a witness for the Commonwealth.  The only way the charge can be dismissed is if the prosecutor decides to dismiss it.  There is a compelling reason to prosecute these types of cases, as domestic assault has been shown to be a repetitive offense, and in particular one that victims quite often will not pursue out of fear or intimidation of the alleged assaulter.  Consequently, the Commonwealth will only on rare occasions nolle pros, or dismiss, a charge without it going to trial.

     If you are a first time offender, the Virginia Code allows you the opportunity to keep your record clear of a conviction for family assault.  Virginia Code Section 18.2-57.3 permits a court to make a finding of facts sufficient to find a person guilty without entering a judgment of guilt.  The defendant is typically required to remain on probation for a period of two years and participate in a community based anger management class.  If the class is successfully completed and the defendant remains out of trouble during the probation period, the court will dismiss the case against him. 

    If you are convicted of a domestic assault under this section, not only could you receive jail time and a fine, but you will likely also be served with a protective order prohibiting contact with the victim for up to two years.  An additional, yet little known impact that a conviction for domestic assault has is that you lose your right to purchase or possess a firearm.  If you are subsequently caught trying to purchase or in possession of a firearm, you will be charged with a felony, creating even more problems for yourself.