If you’re facing a charge in Virginia, you’re probably wondering whether you can keep your record clean. To be clear, Virginia is one of the most archaic states when it comes to criminal records, and once a charge is on your record (except in very specific circumstances), it’s there forever.
If you’re charged, there are multiple ways your case can end. This article describes avenues to avoiding convictions short of being acquitted. Specifically, we’ll discuss basic differences between a “deferred finding” and a “general continuance.”
What is a Deferred Finding?
Generally speaking, a deferred finding is when you enter a plea (of guilty, not guilty, or no contest), and the Court finds sufficient facts to convict you. Instead of entering the conviction, however, the Court suspends and “defers” the finding for a period of time (in domestic violence cases, typically two years).
If at the end of that deferral period, you’ve completed various conditions (to include no new violations of law, completion of anger management or other courses, etc.), the Court dismisses the charge against you. Therefore, you have no conviction whatsoever.
When are you eligible for a Deferred Finding?
There’s typically two main ways to be eligible for a deferred finding. First, the particular charge you are facing is explicitly eligible for a deferred finding by statute. When it comes to Domestic Violence charges, Virginia Code Section 18.2-57.3 permits a deferred finding for a first offense.
If you’re facing a first domestic assault charge, and there’s nothing aggravating about the situation (such as serious injury of the victim), you’ll typically be offered a deferred finding under Section 18.2-57.3. You can then voluntarily enter into the deferred finding by a plea agreement.
Even if you decide to exercise your right to trial on a first domestic assault, you can still ask for a deferred finding under Section 18.2-57.3 after trial. Indeed, the Court maintains discretion to give you a deferred finding even if the prosecutor objects. To be clear, you’re not guaranteed a deferred finding after trial, so make sure to talk with your attorney to determine the best route for your case.
The “New” Deferred Finding Under 19.2-298.02.
In 2021, the Virginia General assembly granted a new route to a deferred finding, even if not expressly permitted by statute. Under Virginia Code Section 19.2-298.02, the prosecutor and defendant can agree to a deferred finding. This deferred finding can be agreed upon before or after trial. What’s more, if specifically agreed to, the defendant may be eligible for an expungement if the charge is ultimately dismissed.
To be clear, however, obtaining a deferred finding under Section 19.2-298.02 must be by agreement. When entering this agreement, you are required to waive your right to appeal. And obtaining a deferral by this process is not a typical outcome and often represents something unusual about the case that makes it risky for the prosecutor to obtain a conviction. So, do not assume you’ll obtain a deferred finding by this Section, but speak with your attorney about it.
What’s good about a deferred finding?
A deferred finding can be a great outcome because it provides an avenue to avoid a conviction. So, if you’re charged with a crime that you’ll likely lose at trial, a deferred finding provides you a lifefline to a relatively clean criminal record.
What’s bad about a deferred finding?
First, you are required to comply with the court’s orders. If you don’t, you’ll be convicted of the charge just as if you went to trial and lost. So, obtaining a deferred finding is not a guarantee to avoid a conviction.
Second, unless specifically agreed to under Code Section 19.2-298.02, you are not eligible for an expungement. As stated above, Virginia is harsh when it comes to criminal records. Because the court makes a finding that you’d be convicted if you had gone to trial, Virginia law does not allow expungements of deferred findings cases.
Third, there are collateral consequences to deferred findings that may not be immediately apparent. So, if you have a security clearance or work in law enforcement (or public service), you need to investigate what a deferred finding may do to your job. Also, if you’re a non-citizen, you need to speak with an immigration attorney before taking a deferred finding. Immigration law is constantly changing, and a deferred finding can be held against you in immigration court.
Often confused with a deferred finding, a general continuance involves a private agreement between your counsel and the prosecutor on how to dispose of your case. Usually, it involves you completing some agreed-upon requirements (for example community service, payment of restitution, etc.is able to) over an agreed-upon period (which differs depending on the case). If your attorney convinces a prosecutor to agree to a general continuance, the court will “continue” (or postpone) your case for the period agreed upon, but will not make any findings on your case. If you complete your agreement with the prosecutor at the end, the prosecutor will then drop your case voluntarily.
What’s good about a general continuance?
Unlike a deferred finding, a general continuance is eligible for expungement because the court will not have made any findings against you. You still must file for an expungement and have it entered by the court, but you’re in a much better position by obtaining a general continuance.
What’s bad about a general continuance?
First, they are very hard to get. Many prosecutors’ offices have an absolute policy against agreeing to general continuances. So if you can get one, you better realize that significant progress has been made.
Second, like a deferred finding, a good outcome is not guaranteed. You’re still required to complete whatever conditions were agreed upon between you and the prosecutor. If you don’t, the prosecutor will not drop your charge, and you may end up with a conviction at the end of the whole process. So don’t take a general continuance for granted.
Lastly, if you are truly innocent of the charge, inherently, requiring you to complete conditions to earn a dropped charge seems unfair. But, frankly, our system is flawed. Innocent people get convicted plain and simple. So, in most cases where my client is offered a general continuance, I recommend the client to agree.
Obviously, every case is different. Before you make the serious decision as to what to do with your criminal case, you MUST consult with an attorney. If you don’t, you’re truly not thinking about your future.
If you need to speak to an experienced criminal defense attorney, please call James Abrenio at 703.570.4180.