Assault and battery domestic conviction in Virginia state court can impact your right to possess a firearm. See the details in this article for more information on how.
Federal Law Affecting Firearm Transport and Possession
A conviction under state law in Virginia may not necessarily impact your right to carry a firearm under state law, however, you must also be aware of a federal statute that could impact that right. Under a federal statute, the right to bear arms is limited upon certain convictions. See the United State Code Section 18 USCS § 921.
This statute contemplates all felonies, but also to certain misdemeanors when considering restoration of right to possess a firearm. Federal law prohibits the possession, shipping, or transport of a firearm in interstate or foreign commerce and also the receiving of a firearm shipped in interstate and foreign commerce, by someone who has been convicted of a “misdemeanor crime of domestic violence.” See the United State Code Section 18 USCS § 922(g)(9).
What is a Misdemeanor Crime of Domestic Violence?
A misdemeanor crime of domestic violence is defined in the statute as “a misdemeanor under Federal, State, or Tribal law” which
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
the United State Code Section 18 USCS § 921 (a)(33)(A). If the defendant’s assault involved the use of a firearm or other deadly weapon, then he would automatically lose his right to carry under the federal statute, even if a conviction in Virginia would not ordinarily deprive him of that right.
Constructive Possession Can Trigger the Statute Too
Under the statute, “possession” includes actual or constructive possession. Some courts have defined constructive possession as “when a person knowingly has the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is located.” See criminal case law U.S. v. Booth, et. al. 111 F.3d 2 (1st Cir. September 1997). If you know about a firearm that is present in your home you can be held accountable for possessing a firearm.
Penalties for Violating the Federal Statute
Violation of the United State Code Section 18 USC 922(g)(9) is a felony. A conviction can carry a sentence of ten years imprisonment and/or a $250,000 fine. Also, if a person is on probation or supervised release while violating this statute, the probation or release may be revoked, and/or you may face new criminal charges. The United State Code Section 18 USC §3565 (b)(2); and 18 USC §3583 (g)(2). These are significant consequences that a defendant may not be aware of after only having been convicted of a misdemeanor.
What if the Statute Applies to You?
You should reach out to legal counsel and find out what your rights are immediately. Not every misdemeanor conviction in Virginia results in a triggering of the Federal statutes. In 2010, the United States Court of Appeals for the Fourth Circuit heard a case involving a man who was convicted of assault and battery of a family member, and the federal government attempted to apply the statute to prohibit possession of a firearm. See, United States v. White, 606 F.3d 144 (4th Cir. June 2010).
The court determined that Mr. White did not use “physical force” when he carried out the misdemeanor of battery. This meant that the conviction did not trigger the federal statutory definition set out in The United State Code Section 18 USCS § 921 (a)(33)(A). While this holding showed that there is hope for a convicted person to overcome the federal statute, the outcome is far from certain.
The holding in United States v. White has been questioned in some subsequent rulings by other courts. It is important to talk about the facts of your case with an attorney who has the knowledge and experience to apply the law to the facts of your case.
If you find yourself or a loved one is charged with a misdemeanor involving domestic violence call Lugar Law. Your right to give and receive a firearm could be affected with a conviction of such charge. Roanoke Valley attorney, Cerid Lugar, at Lugar Law, a criminal defense law firm can help. Call (540) 384-0348 today for a free consultation.
Definition & Punishment: The Virginia Supreme Court has defined larceny (or simple larceny) as “the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.” Vaughan v. Lytton, 126 Va. 671, 101 S.E. 865, 867 (1920); Dunlavey v. Commonwealth, 184 Va. 521, 524; 35 S.E.2d 763, 764 (1945).
Petit larceny is “[a]ny person who [c]ommits larceny from the person of another of money or other thing of value of less than $5, or [c]ommits simple larceny not from the person of another of goods and chattels of the value of less than $200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny . . .” § 18.2-96.
In Virginia, petit larceny is classified as a Class 1 misdemeanor. Id. Conviction of a Class 1 misdemeanor could result in a maximum of twelve (12) months in jail or a maximum of a $2,500 fine, or both. § 18.2-11.
Pardons: Article V, Section 12 of the Constitution of Virginia gives the Governor the power to grant pardons for convictions. There are three types of pardons: absolute, simple or conditional. All pardon requests are submitted to the Office of the Secretary of the Commonwealth (“the Secretary”).
An Absolute Pardon is rarely granted because it is based on the belief that the petitioner was unjustly convicted and is innocent. Once a person has been convicted, the only way to have a conviction expunged in Virginia is to obtain an absolute pardon from the governor.
An absolute pardon may be granted when the Governor is convinced that the petitioner is innocent of the charge for which he or she was convicted.
In 2004, the Virginia General Assembly passed legislation giving individuals convicted of crime the opportunity to have the court itself consider claims of innocence, even after a conviction. If the court finds it made an erroneous conviction, the court then issues a Writ of Actual Innocence. § 19.2-327 through § 19.2-327.13. In most circumstances, this avenue for pardon must also be tried before appealing to the Governor. Writ of Actual Innocence paperwork should be filed with the Office of the Attorney General, not with the Office of the Secretary of the Commonwealth.
If all remedies have been exhausted as required by law, you may then submit a petition for an absolute pardon to the Governor, along with evidence that the court has rejected your claim under the new law above, or an explanation of the legal basis for why you believe the new law is not applicable to your situation.
To be eligible to request an Absolute Pardon, you must have pled “Not Guilty” throughout the judicial process, exhausted all forms of judicial appeals, and have petitioned the Attorney General’s office for a Writ of Actual Innocence.
To request an Absolute Pardon, you must complete the Virginia Pardon Petition Questionnaire. As requested on the questionnaire, provide additional information related to your juvenile and adult criminal record, sentencing information, appellate court information, employment history, educational background, military service, community service, as well as the reason you feel the governor should grant you a simple pardon. You must answer all questions and provide all relevant information necessary for your petition to be reviewed. If a question does not apply, put N/A in the blank.
Documents (or copies of documents) submitted to the Secretary for pardon consideration cannot be copied or returned. For this reason, be sure to retain copies of all documents sent to the Secretary.
To ensure an accurate petition, it is recommended that you obtain a copy of your criminal history from the Virginia State Police Criminal Records Division prior to submitting a pardon request.
The petition process does not include a hearing, meeting or conference with the petitioner or persons on the petitioner’s behalf. There is no reliable method of predicting how long a pardon petition investigation will take to complete. The investigation process may take a year or longer.
If a petition is denied, the petitioner cannot appeal the decision but the petitioner may file a new petition two years after the date of the denial letter.
A Simple Pardon is a statement of official forgiveness. While it does not expunge (remove the conviction from) the record, it often serves as a means for the petitioner to advance in employment, education, and self-esteem. Evidence of good citizenship is required, as are favorable recommendations from the officials involved in the case and from the Virginia Parole Board.
To be eligible to request a Simple Pardon, you must be free of all conditions set by the court (including any probation period, suspended time, or good time behavior) on all convictions followed by a waiting period of five years.
To request a Simple Pardons, see the steps to requesting an Absolute Pardon above.
If a simple pardon is granted, a notation will be added to the criminal record showing the word “pardon” next to the conviction. A simple pardon does not remove the conviction from a criminal record. If a petition is denied, the petitioner cannot appeal the decision but the petitioner may file a new petition two years after the date of the denial letter.
A Conditional Pardon is available only to people who are currently incarcerated. This is usually granted for early release and involves certain conditions; if you violate these conditions, you could be put back in prison. There must be extraordinary circumstances for an inmate to be considered for such a pardon.
There is not a hearing, conference or meeting regarding the petition. If denied, renewal of petition can happen after two years.
See here to get more information about Conditional Pardons.
Navigating through the application process can be cumbersome and may delay the process. The experienced criminal attorneys at Lugar Law are ready to help.
Call (540) 384-0348 to schedule a free consultation today.
When a court expunges a criminal charge, it is ordering all police files, court records, arrest records and any data compiled by the state to be erased and destroyed. So if you are charged with petit larceny, and the court orders that case expunged, then there should not be any that would show you were charged or tried of petit larceny.
Pursuant to Virginia Code § 19.2–392.2, a person may petition the court “requesting expungement of the police records and the court records relating to [a] charge.” § 19.2–392.2(A)(2). However, there are certain requirements that must be met in order to have a criminal charge expunged.
The circumstances which allow for an expungement require: first, the petitioner must have been “charged with the commission of a crime or any offense defined in Title 18.2 …”; and second, the petitioner must have either been acquitted, a nolle prosequi taken, or the charge must have been “otherwise dismissed.” Id. If you obtain an expungement, the person originally charged does not have to disclose any involvement with the charged crime on any state government application for employment or for assistance.
After concluding that a person has the right to seek expungement under Virginia Code § 19.2–392.2(A), a circuit court must then determine whether “the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner.” § 19.2–392.2(F).
Criminal charge expungement in Virginia – Here’s to the possible
There are only a few circumstances in which a criminal charge expungement in Virginia can occur .
Criminal charge expungement in Virginia can occur only when not convicted of a charge. A conviction means a finding of guilt or a “finding of sufficiency to find guilt”. Many deferred dispositions will have a finding of sufficiency which will cause the charge not to be expunged. Should the charge be deferred without a finding of sufficiency or the charge is dismissed, acquitted, or nolle prossed, then a criminal charge expungement is permissible in Virginia. See Virginia law code section 19.2-392.2. Also, if there is a concern of identity theft, expungement can occur under such circumstances as well, as long as there is some type of methodology showing that is what has occurred.
When a charge can be expunged, one has to undergo a few steps through the court. Sometimes a hearing occurs before a Judge when the Commonwealth attorney object to the expungement Order and Motion filed by your criminal defense attorney. Should the Judge grant the Order, the fingerprints and a certified copy of the charge will be disseminated to the police agencies so that they can erase any information matching the documentation.
Often it is a matter of calling an attorney and talking to an experienced criminal defense attorney, to evaluate whether your charge is eligible for expungement. Once eligible, the experienced criminal defense attorney can file the appropriate documents with the court. The attorneys at Lugar Law will instruct you on how to proceed to obtain a new start without a record of the charge being public.
The experienced criminal attorneys at Lugar Law are ready to help and can assist with translating the processes and navigating the criminal law minefield. Call 1(540) 384-0348 to schedule a free consultation today.
Protective orders are court orders issued by a judge or magistrate to protect the health and safety of a person who is alleged to be a victim of any act involving violence, force or threat that results in bodily injury or places that person in fear of death, sexual assault or bodily injury.
There are three (3) kinds of protective orders: Emergency Protective Orders (EPOs); Preliminary Protective Orders (PPOs); and Protective Order (POs).
EPOs are very short-term solutions issued in response to an emergency situation. EPOs expire at the end of the third day following issuance or the next day court is in session, whichever is later (72 hours). This allows time for a preliminary protective order to be filed with the court.
PPOs offer protection for longer periods than EPOs; however, PPOs only last 15 days or until both parties can attend a full hearing, where each side presents their evidence in front of the Court. A petition must be filed with the court to obtain a PPO.
POs are full protective orders issued by a judge for up to two years only after both parties have had the opportunity to attend a full hearing.
An EPO may be issued immediately by a judge or magistrate once the judge or magistrate finds that: (i) there is probable danger of a similar act being committed by the respondent against the alleged victim or (ii) a petition or warrant for the arrest of the respondent has been issued for any criminal offense resulting from the commission of an act of violence, force, or threat. The judge or magistrate can impose certain conditions on the respondent, such as prohibiting the act of violence or threat against the victim or the victim’s family, or both. § 19.2-152.8
In order to obtain a PPO, you must fill out the necessary forms in the court clerk’s office. If the person from whom you want protection is a family or household member or a juvenile, or if you are a juvenile, you should go to the juvenile and domestic relations district court. Otherwise, you should go to the general district court. Once the forms have been filed, the Court may issue a PPO if: (i) the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat, or (ii) a petition or warrant has been issued for the arrest of the alleged perpetrator for any criminal offense resulting from the commission of an act of violence, force, or threat. The order may be issued in an ex parte proceeding upon good cause shown when the petition is supported by an affidavit or sworn testimony before the judge or intake officer. Immediate and present danger of any act of violence, force, or threat or evidence sufficient to establish probable cause that an act of violence, force, or threat has recently occurred shall constitute good cause. § 19.2-152.9
A PO may be issued once there has been a full hearing between the parties or if there is a petition, warrant, or a conviction of any criminal offense resulting from the commission of an act of violence, force, or threat. § 19.2-152.10
There are a few charges under Virginia Law which can allow one to be charged for obtaining items by false representation. Check fraud and check cashing schemes and other fraudulent activities are covered by Va code 18.2-178: Obtaining money or signature, etc., by false pretense, and 18.2-172: Obtaining Signature by False Pretense, and, Virginia Code 18.2-181: Issuing bad checks, are three code sections covering such.
Both require the intent to defraud at the time of the offense. Most often if someone is accused of some check related scheme, it will fall under a false pretense charge in Virginia.
Penalty: Under Virginia code section 18.2-178 if a defendant is found guilty, the defendant will have a criminal record with a class 4 felony; 18.2-172 is a lesser charge of a class 5 felony; and 18.2-181 is a class 6 felony or class 1 misdemeanor depending on the monetary amount (it is a felony if 200$ or more).
A conviction is considered a conviction of larceny which is a crime of moral turpitude. Crimes of moral turpitude fall into three different categories: lying, cheating, and stealing.
Breath Testing on the Side of the Road (PBTs)
The police on the side of the road can ask an individual they have reasonable suspicion or probable cause to take a breath test on the side of the road. This test is OPTIONAL and NOT MANDATORY. Do not let the police convince you otherwise.
The breath test is called a preliminary breath test (PBT) and can dramatically hurt one’s defense against a Driving under the influence (DUI) charge. The law also states that although you have the right to refuse the roadside breath test, and the refusal cannot be used as evidence of guilt if he or she ultimately goes to trial for a DUI offense. If you do decide take the preliminary roadside test and it indicates that alcohol is present, the results cannot be used as evidence during prosecution either. If you are reading this and have already been charged, do not fret if you took the PBT, there are other aspects of the PBT that may be challengeable.
For instance, under Virginia Code § 18.2-267, there is certain information the officer must tell you prior to a PBT administration. The Code Section requires under subsection (F) that a Police officers shall (obligatory language) advise person of rights under provisions of this Virginia Code section that:
- Entitled to have breath analyzed by PBT
- Right to observe process upon request
- Results of PBT not admissible (this means the actual number, the officer can testify that a person took one and subsequent to the test, the officer arrested).
There are also some hyper-technical challenges regarding a PBT test, that go into the training of the officer and proper calibration of the machinery.
DUI charges can be super complex and require a great deal of time, if done properly. Please read through information regarding possible Stop Challenges, Field Tests/Probable Cause for Arrest, Refusal and The Breathlyzer links for more information on your rights with this type of charge.
What Is The Difference Between Breath Tests?
Many people are unsure of the difference between a preliminary and an official breath test. Typically, the preliminary breathalyzer is administered roadside while the officer is performing a DUI investigation, which could also include the administration of field sobriety tests. An official breathalyzer, on the other hand, is typically conducted back at the police station once a suspect has been placed under arrest. In addition, the results of the official breath test may be used as evidence in court.
About the Firm
Lugar Law is a private law firm based in Roanoke, Virginia, with experience helping clients throughout Southwest Virginia in traffic defense, criminal defense, business law, military benefits, and civil litigation. The firm's founding attorney, Cerid Lugar, is an experienced trial advocate with a commitment to dynamic, efficient, and effective representation in every case.
306 Market Street, Roanoke, Virginia 24011
Phone: (540) 384-0348
Fax: (540) 301-2283