Felony, Infractions, and Misdemeanors in Virginia

Criminal offenses in Virginia are generally classified into the following types:

• Felonies.
• Misdemeanors
• Infractions.

The Virginia Code 18.2–8 defines felonies as offenses punishable by death or imprisonment at a state correctional facility. In contrast, infractions are mostly traffic violations and do not attract a criminal charge.

Note: In summary, Virginia's crimes are tried based on these categories. In addition to record categories, Virginia law prescribes statutes of limitations that set prosecution deadlines in the state.

What is a Felony in Virginia?

Felonies are severe crimes that carry harsh penalties. Penalties for felony crimes may vary from one year in jail to life imprisonment or the death penalty. The gravity of the offense is a major determining factor for penalties imposed on felonies.

What are some Examples of Felonies in Virginia?

Section 18.2–10 of the Code of Virginia classified felony offenses into 6 different classes. The different classes go from the most serious offense to the least serious felony charge. Examples of felony offenses and the class they fall into include:

• Class 1 Felonies: Felonies under this category are the most severe and may incur heavy penalties. For instance, persons convicted of capital murder or sexual abuse of a minor may receive the death penalty or life imprisonment. Offenders may also pay fines amounting to $100,000.
• Class 2 Felonies: Terrorism and first-degree murder are examples of class 2 felonies. Crimes under this category are punishable by up to a 20-year jail term or fine payments up to $100,000.
• Class 3 Felonies: Burglaries and attempted poisoning are common examples of class 3. Persons convicted of such offenses may spend between 5 and 20 years in jail or pay up to $100,000 in fines.
• Class 4 Felonies: The maximum penalty for felonies in this category includes imprisonment for 2 to10 years and a fine of up to $100,000. Common examples of class 4 felonies are human trafficking and child abuse.
• Class 5 felonies: Crimes in this category are less severe than those in the other classes. They are sometimes called wobblers because they may be tried as misdemeanors depending on different factors. Offenses like extortion and credit card forgery areunder class 5 felonies. Persons convicted of class 5 felonies may receive sentences between 1 and 10 years in jail. The penalties may include fine payments up to $25,000.
• Class 6 felonies: Offenses in this class are also termed as "wobblers" because they are not as serious as other offenses and may be tried as a misdemeanor. Examples of class 6 felonies include violation of court orders or reckless endangerment.

Note: Virginia courts may impose a prison sentence together with a fine as the penalty for any felony offense (if it is not a death penalty). Only a fine is imposed if the defendant is a business entity and not an individual.

In addition, only adult convictions and intellectually challenged persons may receive the death sentence for a class 1 felony. The maximum sentence is life imprisonment for juvenile felony convicts.

Can I Get A Felony Removed from a Court Record in Virginia?

Yes, you can remove a felony from court records if:

• You were wrongfully convicted as a result of mistaken identity or another reason.
• You were tried and acquitted by the court (Section 19.2–392.2)
• The case was nolle prosequi.

Persons seeking to expunge felony records may file a petition at the court that has jurisdiction over such cases. After the court approves the petition, the petitioner may legally deny that they were ever arrested or charged for a felony because the law explicitly forbids employers from asking about expunged charges.

Is Expungement The Same As Sealing Court Records In Virginia?

In Virginia, record sealing and expungement are quite distinct in terms of accessibility. For instance, sealed records are still accessible to legal and authorized parties. However, expungement is the complete destruction of the record from all places that contain the information.

The records share similarities in how they restrict the public from accessing criminal information. For this reason, landlords and employers are unable to conduct background checks on criminal offenders.

How Long Does a Felony Stay on Your Record in Virginia?

In Virginia, felony convictions may permanently remain on your public records. Persons or entities may view these records while conducting background checks on the record subject.

Note that the Fair Credit and Reporting Act mandates background check companies to only declare convictions from the previous seven years. Note that this law applies only to those seeking employment in the private sector. Government agencies are not bound by the 7-year rule, and they may see every conviction on a job seeker’s record.

What is a Misdemeanor in Virginia?

Misdemeanors are crimes that are less than felonies and may carry a maximum penalty of a 12 months jail term or fine payments. Persons convicted of misdemeanors may serve out their sentence at a county jail.

Criminal justice agencies or prosecutors may file charges for a misdemeanor offense. Law enforcement entities may act on a summons and arrest the offender, while the prosecutor may present a misdemeanor charge against the accused to a grand jury. Individuals can appear before a magistrate to present probable cause, which may lead to the issuance of an arrest warrant for the accused.

Misdemeanors in Virginia are grouped into classes based on the crime severity and corresponding penalties.

• Class 1 misdemeanors: These are the most serious misdemeanor offenses, and offenders may spend up to one year in jail or pay a maximum of $2,500 in fines. The court might impose both penalties at the same time.
• Class 2 misdemeanors: Class 2 misdemeanors attract a maximum of 6 months in jail or fines up to $1,000.
• Class 3 misdemeanors: Crimes under this category are less severe and may require fine payments below $500.
• Class 4 misdemeanors: They are the least severe misdemeanor crimes with only a maximum punishment of a fine that should not be more than $250.

Note: Virginia laws allow some misdemeanor offenders to only serve half of the time handed out to them by the court. This is possible if they earn good conduct credits in jail and they are not serving time for crimes like DUI which requires serving the mandatory minimum requirement.

What are some examples of Misdemeanors in Virginia?

Examples of misdemeanors in Virginia include the following:

• Class 1 misdemeanor
  • Reckless driving
  • Driving under the influence of alcohol - (DUI)
  • Assault or Battery
  • Petit larceny (stealing or theft of goods or property worth under $200)
  • Domestic Assault
  • Disorderly conduct
• Class 2 misdemeanor
  • Driving without a license (first offense). The second occurrence of this will be treated as a class 1 misdemeanor.
  • Possession of a Schedule IV drug—drugs with a low potential for abuse.
  • Second custody or visitation order violation.
• Class 3 misdemeanor
  • Unintentional destruction of property.
  • Possession of a Schedule V drug—controlled drugs like Codeine.
  • Violating a custody or visitation order.
  • The use of reflective window tinting.
• Class 4 misdemeanor
  • Drunk in public spaces
  • Trespassing on rail tracks.
  • Possession of a Schedule VI controlled substance—for example, marijuana.

Can I Get a Misdemeanor Removed from a Record in Virginia?

Misdemeanor records may be expunged if the accused person was acquitted and has been granted a full pardon by the state. Court judges may grant the request if the offender has no pending conviction for the offense.
The court may object to expungement even if the offender meets all legal requirements. Offenders may boost their chances by providing proof that the record’s existence affects their personal and financial life.

Can a DUI Be Expunged in Virginia?

In Virginia, you are eligible to expunge DUI convictions if:

• You were wrongly accused as a result of mistaken identity or identity theft.
• The case was dismissed.
• The prosecutor refused to file charges for the offense.

There is no assurance that the court will grant an expungement even after the offender fulfills the legal requirements. The judge hearing the petition has to be convinced beyond a reasonable doubt that the petitioner has been suffering a manifest injustice (obviously unfair) due to the presence of the DUI on the record.

Without getting it expunged, a DUI conviction will stay on an individual’s DMV record for 11 years and permanently on the person’s criminal record.

What constitutes an Infraction in Virginia?

Infractions are mostly low-level traffic-related offenses. They usually do not attract a jail sentence and are punished by the payment of fines. Infractions are sometimes called ‘summary offenses’ and may be informal. A jury trial is not needed to hear a case of an infraction, and only a bench trial is conducted. A judge may listen to the defendant’s case and determine the outcome.

Demerit points are generally acquired if one commits a traffic offense. This may remain on the individual’s driving record for 2 years, while the actual conviction for a traffic offense may be on the individual’s record for between 3 and 11 years. Accumulating so many demerit points over a short period may also lead to the suspension of an individual’s driving license.

What are some examples of Infractions in Virginia?

Examples of Infractions in Virginia are:

• Speeding
• Running a red light
• Driving without a license
• Driving with a taillight that does not work
• Failing to yield
• Improper turn
• Exceeding speed limits in school zones
• Improper passing
• Driving too close to a vehicle
• Failing to obey a highway sign
• Making an illegal U-turn.

Can Infractions be Expunged from a Virginia Criminal Court Record?

There is no need to expunge infractions since they are not of much consequence in any individual’s life. Infractions may only accumulate as demerit points on the individual’s driving record. To reduce these accrued points, the individual may take a certified driving course to show the authorities a sincere effort to improve driving etiquette.

Driving offenses that might lead to a misdemeanor, such as reckless driving, may only be expunged under these conditions:

• The case was dismissed
• The defendant was acquitted
• The prosecutor does not proceed with the prosecution.

What is Deferred Adjudication in Virginia?

Under Section 19.2-298.02, a trial court, in agreement with a defendant, may pass a deferred deposition on a criminal case. A deferred disposition allows defendants to avoid imprisonment by completing a court-mandated program or conditions. The program could include attending a rehabilitation program or restitution payments to victims.

The court may pass a deferred disposition after considering the following factors:

• The facts and circumstances of the case.
• Mitigation factors related to the case or defendant.
• Crime victim’s request.
• The defendant’s mental state and how it impacts the criminal incident.

Section 19.2-303.2 allows the court to defer judgment against persons on trial for misdemeanor crimes against property. For example, persons convicted of larceny or trespassing may be eligible for deferred disposition. However, there are exceptions to the rule; a defendant is not eligible if charged with peeping into dwelling places or inflicting injury on animals.

Types of Crimes Eligible for Deferred Adjudication in Virginia

In Virginia, the court determines which crimes are eligible for deferred adjudication by considering factors such as the victim’s request and the severity of the offense. The court may also consider the number of prior convictions for specific crimes before deferring judgment. For instance, first-time offenders of larceny and trespassing may qualify for deferred disposition.