Second Chances in Virginia

by Jamison Koehler on March 5, 2011

Here, for free, is my simple legal advice: Whatever you do, don’t get arrested in Virginia.

The Commonwealth is, as far as I can tell, one of the worst places to find yourself when facing criminal charges. The laws are tough, and judges, prosecutors and juries are typically unforgiving.  Offenses that would be considered akin to a traffic infraction in other jurisdictions result in criminal convictions.  Unlike in D.C. and other jurisdictions, it is virtually impossible to get a criminal conviction expunged from your record.  And while Virginia does allow for second chances for first-time offenders of minor offenses, the opportunities are far more limited than in other jurisdictions with which I am familiar.

A diversion program, generally, is any type of agreement between the prosecution and the defendant that allows the defendant to have the case dismissed without going to trial.  While I have often described diversion to clients as a “do over” (or, for golf lovers, “mulligan”), this characterization can be misleading:  Many diversion programs impose fairly substantial burdens on the defendant, including fines, restitution, community service, anger management, drug testing, job training, and/or education.

The best types of diversion programs for people charged with a minor offense can be, depending on the jurisdiction, a “stet docket” or “deferred prosecution agreement.”  There are no conditions attached to a stet docket, for example.  The government suspends prosecution for a period of time.  If the defendant can stay out of trouble during that period of time, the charges are simply dismissed. There can sometimes be conditions attached to a deferred prosecution agreement:  in addition to avoiding new arrests during this period, for example, the person might have to perform community service or undergo drug testing.

One type of non-trial diversion program in Virginia is called a Suspended Imposition of Sentence (SIS). Unlike a straight deferred prosecution, the defendant needs to plead guilty under an SIS.  The court simply delays entering the guilty plea into the record to give the defendant an opportunity to perform whatever conditions have been agreed to with the government. In the case of a public intoxication charge in Arlington, for example, the defendant is generally required to perform 24 hours of community service.

While an SIS has the same effect as a deferred prosecution should the defendant succeed in completing the required conditions (that is, a dismissal of the charges), people considering entering into such an agreement should note two important differences. First, although successful completion of the SIS does not result in a conviction on the person’s criminal record, the acknowledgement of guilt would be considered a conviction for immigration purposes. Second, the person should be aware that he is waiving his right to trial by entering into the agreement. If the person subsequently violates any condition of the agreement, the court can simply enter the guilty plea into the record, thereby resulting in a criminal conviction.

Unlike other jurisdictions, Virginia generally limits diversion programs to the most minor of offenses. For example, while certain types of assault can be eligible for diversion in D.C., diversion programs in Virginia typically apply to the offenses that other jurisdictions might treat as akin to traffic infractions: disorderly conduct, public drunkenness and profanity, littering, trespass, or urinating/defecating in public. In Pennsylvania, these charges would be considered “summary offenses” for which, even if found guilty, the person does not end up with a criminal conviction on his record.

As with all diversion programs, the offer of an SIS is entirely discretionary with the government. While courts can try to encourage the government to pursue a non-trial disposition, whether or how to pursue a prosecution is entirely up to the government.

It is also important to note that diversion programs are normally offered only to first-time offenders. A client once complained to me about the terms of a plea offered by the government.  “The last time I got arrested for this,” the client said, “I only had to perform community service. How come I can’t get that again this time?”  I had to inform him that, as with many other things in life, you only get so many chances.

{ 21 comments… read them below or add one }

Rob June 21, 2012 at 2:50 pm

Hi there. My question is this. Is there any way to remove an indecent exposure conviction from my record in Virginia. The conviction is a misdemeanor. I was not arrested but rather issued a summons to appear in court at a later date. There was no trial but I did enter a not guilty plea acknowledging that in this one case I could be convicted. I received a fine for the conviction and we never went to trial. I don’t know that all the details matter but it is such a concern to me and ways heavy on my mind despite the fact that it occured nearly three years ago. I had a clean slate up until that point and have always been a good person in school, work, and my community. Now I am concerned that while I am pursuing completion of my degree in journalism and mass communications of the potential repercussions the plea could have on my ability to find a job in the field. Any response or advice you can give me is appreciated. Thank you,

Tami August 8, 2012 at 8:38 am

Does the Prince William District court automatically send out a diversion program option for a first time misdeamor offense?

Priya December 1, 2012 at 12:59 pm

I have been given ticket for petit larceny in virginia for stealing goods worth around $20 and switching the tags from burlington store. I have been asked to appear in court at Leesburg, VA. This is my first offense during my past 3 years stay in US. Right now, I am 7 months pregnant and in the process of getting green card.

What are my chances of diversion program? With this program would i have a clean record?

Please advice!

Scott January 24, 2013 at 7:14 pm

Someone I know was found to have committed petty larceny of about $25 in Virginia. There were no other prior instances of any crimes whatsoever. The court date was set the same day the charges were filed. An attorney cannot be afforded, I was curious of any advice that can be given and the odds of a “first time offender” being granted with this offense so this person can continue to have a normal life after this incident without it haunting them and without more harsh penalties such as jail time. What are the odds of a “stet docket” or “sis” both referenced above? We appreciate any advice.

Jane May 8, 2013 at 8:22 am

I know someone who was recently charges with shoplifting and they haven’t been to court yet I was wondering if you could tell me what was going to happen and if she had the chance to complete a program to have it off record due to she is looking for employment. She had a misdemeanor marijuana charge from 2007 can you help

Karla June 14, 2013 at 8:32 pm

I’d like to know if the community service that I completed for a Non-Profit Organization in DC can be accepted in Virginia. I completed over 4000 verifiable hours and would like to know if not, why will they not be accepted?

Sarah September 11, 2013 at 8:08 pm

Do they drug test at chesterfield county diversion programs? Will they put me on probation? It’s my first offense

Katie September 15, 2013 at 6:29 pm

Hi. I just received a drunk in public last weekend. I am an over 21 student. I was walking by myself early in the morning so an easy target for the cops. I am afraid this will hurt my chances at future employment. Should I just pay the fine and be done with it or is there away to expunge this from my record without further putting my name in the books? I am quite concerned. Will this show up on a background check?

Mike October 11, 2013 at 6:29 am

My 15yr old son has just had assault/battery charges filed on him from an incident in school in Virginia. They have put him in the “Diversion Program” with the first meeting in 10 days. He’s guilty, he did it, no getting out of it. My question involves any fees and costs I’m to expect during this process. It is his first (and better be only) offense. Thanks.

Council November 4, 2013 at 9:01 am

I had to complete 50 court appointed community services hours by today. I only completed 30. My PO said he can write the letter a few days from now I just need to do my hours & report back all week. and say she shows progress but late deadline on community service hours. What are the possible outcomes from missing the deadline.

Jessica November 15, 2013 at 3:39 pm

I have an obstruction of justice charge in va I hired a lawyer and plead guilty . this is now preventing me from getting a job in wv any idea how I can get this expunged or if it’s even worth trying.. I’m just trying to get on with life ya know.

Anne April 17, 2014 at 3:55 pm

My 18 year old son who was attending a party was charged with a class 1 misdemeanor in Chesterfield County, VA. The charge was for underage possession of alcohol. He admitted to consuming a single beer and was not given a breathalyzer. He is a first offender. I was wondering if we should hire an attorney?

Jamison Koehler April 17, 2014 at 4:27 pm

Yes.

L.J. May 12, 2014 at 4:59 am

Please note that a SIS in Virginia is considered a conviction for the military because it’s a plea bargain. You cannot enlist, reenlist, or extend; depending on the charge you could be seperated. Mosts SISs result in dismissal without prejudice; please get good information from your attorney…mine just said, “It’s a good deal the ends in dismissal.” and I said okay instead of fighting it. Now I can never serve again; there aren’t any statutes for expungement. Small mistakes in Virginia can last a lifetime.

Jamison Koehler May 12, 2014 at 6:58 am

L.J.: SIS-type programs are also considered to be the equivalent of convictions for immigration and many administrative purposes.

Joe June 19, 2014 at 2:09 pm

Does “Suspended Imposition of Sentence” follow the same guidelines Virginia’s “First Offender Program?” Or are they actually the same thing? Basically I want to know if I file for SIS will I be screwing myself in the longrun by pleading guilt, never being able to get it expunged, and losing my job.

Alicia July 8, 2014 at 6:47 am

I have a question. My husbands ex wife and I got into an argument because she doesn’t fully understand the custody papers and since my husband is deployed I’m the primary care taker for their daughter and she threatened to run me over with the car and I tired to stop her and she said I hit her and she went crazy and starting throwing punches at me and I went into self defense mode. The cops we’re called and I explained my side and she did as well and they asked if we wanted to press charges both said no and they made a police report stating it was just an altercation between us well a day later she went and filed charges against me I got served and I went down and filed against her as well. My question is what’s going to happen in court? Will it get dropped? This is my first time every going through this and she has a record with calling the cops and everything. It’s basically jealous and she’s trying to bring me down and get her daughter back thanks.

Ashley September 6, 2014 at 12:32 pm

I was charged with shoplifting. At walmart.when I was. Leaving. Then a couble of months later I was charged with. A second shoplifting.because they reviewed the camera and saw that I stole more and returned it for a gift card. Can I get charged with. Two shoplifting one the same day if I never left the property?

David November 1, 2014 at 12:12 pm

I worked for walmart in produce and they said I shoplifting :alter price goods 18.2-103. But I did no such thing you have to be a manager to put codes in to machine to make labels they only have me buying the things they say I changed price on I work in produce and never used label me chine ever sence I worked there ever they had me arrested but let me out same day no bail what do you think I should do court date 2 months thank you .

jonathan November 8, 2014 at 8:32 am

Traveling to fl from pa I was pulled over at 111/70 in virginia. Would a pretrial intervention be applicable in this case? I am a florida resident.

brittany December 3, 2014 at 12:25 pm

Do they give you a drug test in a courthouse

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