The Bushman Law Group

703.845.9070

Criminal Law

Criminal Law is a tough area of Law for the accused and the accused's family. The Bushman Law Group handles felonies, misdemeanors and traffic offenses. We will explain the charge to you and the statutory requirements that must be proved in order for you to be convicted. We will explain the penalties and any lesser included offenses that may also be charged.

The first stage of a criminal procedure is the arraignment. At the arraignment the accused, the judge will inform the Defendant of the pending charges, the right to secure counsel, and the right to free counsel if the Defendant cannot afford an attorney and meets the requisite financial minimums. If the Defendant cannot make bond or the motion is not made, a bond motion may be made next.

If the Defendant is charged with a misdemeanor, the next hearing may very well be the trial.

If the Defendant is charged with a felony, a preliminary hearing will be set by the judge. The preliminary hearing is the prosecution's attempt to prove to the judge that probable cause exists that the accused has committed a crime that is a felony. If the Judge finds probable cause that the crime charged is a felony, then the matter is sent to the Circuit Court for Term Day where the case will be set for trial. If the prosecution does not have its evidence ready or believes after further review not to proceed, it may for good cause, dismiss the charges and direct indict the Defendant before a grand jury.

If the case involves a juvenile then the trial of a misdemeanor, or preliminary hearing if a felony charge, will be in the Juvenile and Domestic Relations Court. This court is designed to rehabilitate juveniles and not to punish them. Although there is a list of available alternatives, the court may send the juvenile to a detention center as last resort.

At a trial, the procedure is as follows: Opening statement by the Prosecution, Opening Statement by the Defense, Prosecution's presentation of evidence, Defense's Presentation of Evidence, Prosecution's Rebuttal, Closing argument of Prosecution, Closing Argument of Defense, Rebuttal Closing Argument of Prosecution.

In Virginia, trials are bifurcated. This means that criminal trials are separated in two phases: guilt/innocence phase and punishment phase. The guilt/innocent phase is always the first phase. The punishment phase is only if the Defendant is found guilty of an offense.

Criminal Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in a state correctional facility are felonies; all other offenses are misdemeanors. Traffic infractions are violations of public order and not deemed to be criminal in nature.

Felonies in Virginia have no statute of limitations. Felonies range from the lowest, a class 6 felony to the highest, a class one felony.

The authorized punishments for conviction of a felony are:

  1. For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be mentally retarded , or imprisonment for life and, a fine of not more than $100,000. If the person was under 18 years of age at the time of the offense or is determined to be mentally retarded the punishment shall be imprisonment for life and a fine of not more than $100,000.
  2. For Class 2 felonies, imprisonment for life or for any term not less than 20 years and a fine of not more than $100,000.
  3. For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and a fine of not more than $100,000.
  4. For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and a fine of not more than $100,000.
  5. For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
  6. For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

For unclassified felonies, the punishment is described in the statute.

Misdemeanors have a statute of limitations. Most misdemeanors have a limitations period of one year from the cause of the offense. Misdemeanors range from the lowest a class 6 misdemeanor to a the highest a class one misdemeanor.

The authorized punishments for conviction of a misdemeanor are:

  1. For Class 1 misdemeanors, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.
  2. For Class 2 misdemeanors, confinement in jail for not more than six months and a fine of not more than $1,000, either or both.
  3. For Class 3 misdemeanors, a fine of not more than $500.
  4. For Class 4 misdemeanors, a fine of not more than $250.

Traffic Infractions are handled by the General District Court if the accused is over 18 and by the juvenile domestic relations court if the accused is under 18. The usual traffic infractions in Virginia are speeding, failure to obey highway sign, no registration or driving without a license, improper tags. Sometimes a traffic infraction is really a misdemeanor such as reckless driving. Reckless driving can occur from speeding over 20 miles of the posted speed limit, it does not have to be combined with any other behavior. Reckless driving is a class one misdemeanor. Other violations which are crimes commonly occurring while driving are Driving while intoxicated, driving under the influence, or possession of a controlled substance.

The General District Court and the Juvenile and Domestic Relations Court will hold trials on traffic Infractions and Misdemeanors. If the Defendant is found guilty in wither one of these courts, the Defendant has only ten days to appeal to the circuit court. On appeal in the Circuit Court, the trial is heard "de novo" meaning from the beginning. However, if the Defendant does not file a timely appeal, then the decision stands absent a limited set of circumstances.

Please call the Bushman Law Group if you're in need of a criminal defense attorney.

F.A.Q.

  • I have been charged with speeding, do I need a lawyer?

    Every defendant has the right to represent oneself, so in that sense, no defendant needs an attorney. However, just because you can do something does not mean you should do something. Whether you should have an attorney or not depends on a number of factors. For speeding tickets determining your goals in the case are important. If your goal is for the case to be dismissed or a finding of not guilty, then what defense will you rely on? If you're unsure what defenses are available, then you should probably have an attorney. Hiring an attorney can assist in exploring viable defenses, explaining the courtroom procedure, and developing mitigation evidence on sentencing, if found guilty.

  • I have been charged with misdemeanor possession of marijuana, the officer told me that I could enter a program and get the charge dismissed, do I need an attorney?

    Every defendant has the right to represent themselves, so in that sense, no defendant needs an attorney. Police officers are there to protect the safety and well-being of the citizens, they are not employed by the state or municipal to give you legal advice. The responsibility for prosecuting your case is not the officer's, but the commonwealth attorney's for your jurisdiction. The officer's statement is no guarantee of the availability of any program. In the officer's experience it may be true that many of his arrests do enter the program, however, it is not up to him to arrest, prosecute, and judge your case. Those roles are specifically reserved to other parts of our government, and for good reason. At the very least, I believe you should be represented by an attorney if you will regret what could occur, worst case scenario, in front of a judge. I believe you should seek an attorney's consultation if you believe you have a valid defense, or if you are unsure if you have a defense. A lot of these programs require a guilty plea which may have ramifications later on if the case is not disposed of as agreed. Is the program the best option for the defendant is another analysis that should be done with an attorney.

  • My son is charged with a crime and I would like to get him out on bail, what do I do?

    Hire an attorney, who will set a bond motion, and give you information on a bail bond company that can assist in meeting any bond obligations, if set, by the court.

  • Can a police officer command an individual to perform field sobriety tests?

    No. There is no obligation to perform a field sobriety test. However, Virginia does have an implied consent statute to submit to certain other breath or blood tests.

  • Should I perform field sobriety tests?

    Unfortunately, I cannot tell you what to do in a future event under unknown circumstances. However, if you have the ability to see the future, and can see that future of your results of a field sobriety tests, and you failed, you probably would regret taking the test as it would most likely create probable cause for an arrest.

  • If I do not take the field sobriety test can the officer still arrest me for drunk driving?

    Depends on the facts and circumstances. It is possible.

  • Do I have to take the preliminary breath test?

    No. There is no obligation to take a preliminary breath test.

  • What happens if I take the preliminary breath test?

    Although arrests are in the discretion of the officer, a preliminary test with a BAC result over .08 would give the officer enough facts to support a probable cause standard to arrest you on the suspicion of drunk driving. A test below that amount, however, does not preclude an arrest for drunk driving.

  • Do I have to take the breath test at the police station.

    No, but if you do not then you may be committing a different crime. Refusing to take a breath test is a civil offense the first time, and a criminal offense on the second and subsequent refusal. Refusal of the breath test at the station does not prohibit the officer from issuing a charge for refusal and a second charge for diving under the influence.