Felony, Infractions, and Misdemeanors in Virginia

Criminal offenses in Virginia are generally classified into Infractions, Misdemeanors, and Felonies depending on their severity. Virginia Code 18.2–8 defines felonies as offenses punishable by death or serving time at a state correctional facility, while all other offenses (except traffic violations) are misdemeanors. Infractions are mostly traffic violations and do not attract a criminal charge. In summary, Virginia's crimes are tried based on these categories.

What Is A Felony In Virginia?

Felonies are the most severe crimes anyone could ever commit, attracting the most severe penalties in Virginia. Offenses like murder, embezzlement, arson, and burglary are felony crimes, and the penalty for them ranges from the death penalty to serving one year at any correctional facility in the Commonwealth of Virginia, depending on the gravity of the offense. Since felony is a very serious offense, it may remain permanently on the offender’s criminal record.

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: This is the most serious offense an offender may be charged with in the Commonwealth of Virginia. Capital murder and sexual abuse of a child under 15 are examples of crimes that fall under this class of felony. The penalty for a class 1 felony offense may be a death sentence, life imprisonment, or a fine of a fee amounting to $100,000.
• Class 2 Felonies: Terrorism, first-degree murder, burglary with a deadly weapon, and abduction to extort money are some of the offenses that fall under this category. These are also serious crimes punishable by a jail term of 20 years or above or a fine of up to $100,000.
• Class 3 Felonies: Offenses like burglary, shooting, or stabbing someone with the intent of killing, certain drug crimes, or attempting to poison someone are all class 3 felonies. The penalty for a class 3 felony is a sentence to jail for any time between 5 to 20 years or a fine of any amount up to a total of $100,000.
• Class 4 Felonies: The maximum penalty for felonies in this category includes imprisonment for 2—10 years and a fine of up to $100,000. Some of the offenses that may be categorized as class 4 felonies include human trafficking, child abuse, arson of an unoccupied building, forging of public records, bigamy, and many others.
• 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, computer fraud of a minimum amount of $500, voluntary and involuntary manslaughter, credit card forgery, and others all fall under class 5 felonies. It carries a penalty of 1 to 10 years in jail, or at the discretion of the court, spending not more than 12 months in prison with a fine of a maximum amount of $2,500.
• 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. Animal cruelty, violation of a court order, reckless endangerment, strangulation, and multiple cases of domestic violence are all examples of crimes that fall under class 6 felonies. The penalty for a class 6 felony is a jail term of between 1—5 years, or at the discretion of a court, serving not more than 12 months in jail with a fine a maximum amount of $2,500.

It should be noted that the court may, on its discretion, impose a prison sentence together with a fine as the penalty for any felony offense committed (if it is not a death penalty). Only a fine is imposed if the defendant is a business entity and not an individual.

Also, only an individual who is above the age of 18 years and is deemed not intellectually disabled may be given the maximum penalty of a death sentence for a class 1 felony. For a person who was under the age of 18 years when the crime was committed or declared intellectually disabled, the punishment will be life imprisonment and a fine of not more than $100,000.

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

Yes, the law in Virginia allows an innocent person who was wrongfully convicted of a felony and was later pardoned to seek the removal of such convictions from their records. Section 19.2–392.2 of Virginia’s laws also grants a defendant who was charged and tried in court over a felony case but was acquitted to seek the removal of that record from their criminal history. A defendant whose case was nolle prosequi (not prosecuted) may also file for the record to be expunged. A person whose DNA profile was entered into the state’s forensic database may also have all information erased from the database and all physical samples destroyed.

The defendant may file a petition at a court in the county where the case was tried to ask for the record to be expunged. Once successful, 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?

Sealing records and expunging records are similar in Virginia. They both prevent the public from having access to the record except through a court order. Educational institutions, employers, and other members of the public will not see such records in the defendant’s criminal history, and only law enforcement officers will have access to them. Hence, a sealed or expunged record may not stop the defendant from gaining employment (in the private sector) or university admissions.

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

In Virginia, all criminal convictions (be it misdemeanor or felony) may stay on the accused person’s record forever. The state makes no distinction in that regard. For a background check, however, the Fair Credit and Reporting Act mandates background check companies to only declare convictions from the previous 7 years. Any conviction before that time is not listed as part of background checks. It should be noted 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 fine and imprisonment for a maximum period of 12 months. While felony offenders serve their jail time at a state correctional facility, those guilty of misdemeanor serve their punishment at a county jail. Misdemeanor charges in Virginia may be brought by the police, prosecutors, and civilians. The police may act on a summons and arrest the offender while the prosecutor may present a misdemeanor charge against the accused to a grand jury. Civilians may also go in front of a magistrate and swear out probable cause who may then issue an arrest warrant for an accused to be arrested.

Just as it is in felonies, misdemeanors are also categorized into classes in order of the gravity of the offense and the severity of the punishment to be served. The laws in Virginia define the classes of misdemeanors as:

• Class 1 misdemeanors are the most serious misdemeanor offenses, and offenders are liable to a jail term of a maximum of one year or a fine of not more than $2,500. Depending on the discretion of the court, an offender could also be served both punishments.
• Class 2 misdemeanors: The crimes in this class are less serious than those in class 1. The maximum penalty is a jail term of not more than 6 months or a fine of not more than $1,000 or both, depending on the court.
• Class 3 misdemeanors: They are not very serious crimes and may only carry a maximum penalty of a fine that should not be more than $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.

It should be noted that 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 the offenses that fall under each class of misdemeanor are:

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. The defendant may prove innocence, and a previously clean record will convince the judge to expunge the record. The state may still object to the expunging of the record at the hearing in court. However, solid proof that the continuous existence of the record damages the defendant’s reputation and makes it difficult to gain employment will back those claims up.

Can a DUI Be Expunged in Virginia?

Only an accused, whose DUI case was dismissed, not pursued by the prosecutor, or was found to be wrongly accused, may seek the expunging of a DUI record. Even after satisfying either or all of the three conditions, it is still not a certainty that the record will be expunged. 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 and may not constitute a felony or misdemeanor. 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—11 years, depending on the offense. 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?

Simple traffic violations that are not misdemeanors are not criminal offenses and do not need to be expunged. They 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 if the case is dismissed, the defendant is acquitted, or the prosecutor does not proceed with the prosecution.