If you decide to plead guilty or no contest in a criminal case in Virginia, you now have another alternative sentencing option that can keep you out of prison or jail in Virginia. In 2020, the legislature passed Virginia Code §19.2-298.02, which allows for deferred prosecution in criminal cases. You should consult with an experienced criminal defense lawyer to find out if this is a good choice to pursue in your case.
How Deferred Prosecution Works in Virginia
Deferred prosecution is also referred to as Deferred Disposition, Probation Before Judgment (PBJ), or a suspended imposition of a sentence. It allows for the reduction or dismissal of criminal charges without a conviction as long as the defendant meets certain conditions.
Under prior law, deferred prosecution was only allowed for specific crimes, like a first-offense drug or domestic violence conviction. However, the new law provides for deferred prosecution in any criminal case. The prosecutor and defense attorney must agree to the deferred prosecution, and the judge must approve it. In most cases, the individual must plead guilty or no contest, but a deferred prosecution has been allowed in some cases where they pled not guilty and were convicted at trial.
Conditions that a person must comply with can include probation, completing an anger management or other course, making restitution to the victim, completing a specified number of community service hours, and payment of court costs. In deciding whether to approve a deferred prosecution, the judge must consider these factors:
- Mitigating factors relating to the defendant or the offense
- The victim’s request
- Any other appropriate factors
When agreeing to a deferred prosecution, the defendant waives their right to an appeal if they fail to comply with the terms of the deferred prosecution. Once they successfully complete the conditions of the deferred prosecution, the criminal case would be dismissed, or the charges would be reduced, depending on the agreement between the Commonwealth and their lawyer. If they do not complete the deferred prosecution, the judge would enter a determination of guilt and impose a sentence on the original charges.
Expungement of Criminal Records
Another benefit of this option is that the criminal charges may be expunged from an individual’s criminal record if they successfully complete the conditions of the deferred prosecution. The prosecutor must agree that the charges can be expunged when the conditions of the deferred prosecution are worked out.
Deferred Prosecution for Individuals With Autism or Intellectual Disabilities
In 2020, the legislature also passed Virginia Code §19.2-303.6. Under this law, an individual diagnosed with an autism spectrum disorder or an intellectual disability can ask the court to grant a deferred prosecution. When requesting this, they would be asking the judge to defer their case, place them on probation, and dismiss the charges after they successfully complete the terms set by the court. However, the law does not provide for the expungement of the criminal charges.
To be eligible for this type of deferred prosecution, a person must show that the alleged crime was caused by or had a direct relationship to their disorder or disability. They would need to show that a psychiatrist or clinical psychologist diagnosed them with autism spectrum disorder or an intellectual disability.
A person may be eligible for a deferred prosecution even if this is not their first offense. In addition, the prosecutor does not have to agree to the deferred prosecution for an individual to file a petition asking that the judge approve it. However, the court must consider the prosecution’s position and the victim’s views in deciding whether to grant the petition.
Certain crimes are not eligible for deferred prosecution under this law. These offenses include aggravated murder and crimes involving acts of violence, such as kidnapping, assault, robbery, sexual assault, or arson.
If you are facing criminal charges or have questions about whether you are eligible for a deferred prosecution, our dedicated criminal defense lawyers are here to help. Call our Manassas office at 888-DUI-LWYR or complete our convenient online form to schedule your free initial consultation today to learn how we can help you fight the charges you face and achieve the best possible outcome in your criminal case.
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