Here are some answers to common questions we receive about criminal cases.
Q. What is the difference (in Virginia) between an infraction, a misdemeanor and a felony?
A. An infraction isn't a crime - it is a violation of civil law. Many but not all, traffic charges are infractions (like speeding, defective equipment, etc,). Infractions are not punishable by incarceration - only by fines.
A misdemeanor is a minor crime. Misdemeanors in Virginia are divided into four classes. The most serious misdemeanors (Class 1 and Class 2) are are punishable by jail time (not prison time) and fines. The maximum jail sentence for a Class 1 misdemeanor is 12 months. The maximum for a Class 2 misdemeanor is 6 months. Class 3 and Class 4 misdemeanors are punishable only by fines.
Some misdemeanors in Virginia include:
- DUI (1st or 2nd)
- Reckless Driving
- Petit Larceny (1st or 2nd)
- Harassing Phone Calls
- Driving on Suspended License
- Assault and Battery
A felony is the most serious type of criminal charge. Felonies are divided into six classes and are punishable by death, prison time, jail time and/or fines.
Some felonies in Virginia are:
- Malicious or Unlawful Wounding
- Grand Larceny
- Welfare Fraud
- Possession of Cocaine
- Distribution of Schedule I/II Narcotics
- DUI (3rd or higher)
Q. What is the difference between a summons, a warrant, an indictment and a capias?
A. A summons is an order for someone accused of a crime to appear in court on an infraction or a misdemeanor. Usually, a police officer will issue the summons at the time of a traffic stop.
A warrant of arrest is issued by a judge or a magistrate in felony or misdemeanor cases based on testimony of a witness. It is an order to have a person accused of a crime arrested. A person arrested on a warrant is either released on bond or held without bond until the case goes to trial.
An indictment is a charge issued by a grand jury in felonies and sometimes in misdemeanor cases.
A capias is a order from a judge to have an accused arrested and held before a court hearing.
Q. What happens after a person is arrested?
A. A person arrested on a warrant is taken before a magistrate or a judge for a bond hearing. If bond is granted, and if the bond is posted, the accused is released until the next court hearing.
If the arrest is on a misdemeanor warrant, the trial will be held in the district court (either the general district court or the juvenile and domestic relations district court).
If the arrest is for a felony, there will be a preliminary hearing in the district court. If the district court judge finds enough evidence after a preliminary hearing, the case will be certified to the grand jury, where an indictment is usually found. Once the indictment is found by the grand jury, the case will set for trial in the circuit court.
Q. Is there a right to a jury trial in criminal cases?
A. Yes. In criminal cases, the accused has an absolute right to be tried by a jury. However, there are a few things to keep in mind.
A defendant who has been charged on a misdemeanor warrant is tried first by a judge, without a jury, in the district court. If the defendant is found guilty by the district court, the defendant has the right to appeal to the circuit court and have a jury hear the case from scratch.
A defendant who is accused of a felony can only be tried in circuit court and may demand a trial by jury there.
In Virginia, the judge and the prosecutor can also demand a jury, even if the defendant doesn't want one.
Making the decision to demand a jury trial is an important one and should be done very carefully after consulting with an attorney.
Q. Should a person who is under investigation make a statement to police or give permission for a search?
A. A person who is being investigate should refuse to make a statement without a lawyer present and should refuse to consent to any searches.
Q. What is a plea bargain?
A. A plea bargain is an agreement to plead guilty to a criminal charge in exchange for a promise from the prosecution. Sometimes the prosecutor will agree to reduce a charge to a lesser charge, or drop one or more charges in exchange for a guilty plea on another charge. Sometimes a plea agreement calls for a certain sentence. Often, it is impossible to reach a plea agreement and the case must be tried.
A judge can either accept or reject any proposed plea agreement. If the judge rejects the plea agreement, then the trial will be heard in front of a different judge.
The decision to accept or reject a plea agreement is an important one.
Q. What happens if I am found guilty of a crime?
A. If the judge has accepted a plea bargain, the judge will sentence the defendant according to the bargain.
If the case is tried as a misdemeanor, the judge will usually impose a sentence right away.
If the case is tried as a felony, the judge will usually order a pre-sentence investigation. A probation officer will meet with the defendant for an interview and prepare a presentence report which the judge will use to determine a sentence at a sentencing hearing. The sentencing hearing is held after trial. The defendant and the prosecutor can each call witnesses at the sentencing hearing to offer evidence. After the hearing, the judge will impose a sentence.