Criminal Defense Laws in Virginia

Criminal Defense Law in Virginia: Overview

Virginia has undergone sweeping criminal justice reform in recent years. In 2021, the state became the first Southern state to abolish the death penalty. That same year, Virginia legalized recreational marijuana for personal use, though commercial sales have been delayed. Virginia classifies felonies into six classes (Class 1 through Class 6) and misdemeanors into four classes (Class 1 through Class 4). The state has modernized its approach to various criminal matters, including raising the felony larceny threshold, reforming driver's license suspension practices, and decriminalizing simple marijuana possession prior to full legalization. Virginia does not have a stand your ground statute and generally follows a duty to retreat doctrine, though the castle doctrine applies within one's home. The state has been working to expand expungement eligibility, with a comprehensive sealing law (Virginia's record sealing statute) enacted to allow broader sealing of criminal records. DUI remains a heavily prosecuted offense with mandatory minimum penalties for repeat offenders.

Key Statutes & Deadlines

DUI Penalties and Mandatory Minimums

Virginia's DUI law under Va. Code § 18.2-266 prohibits operating a motor vehicle with a BAC of 0.08% or higher. A first offense is a Class 1 misdemeanor carrying up to 12 months in jail and a $2,500 fine, with a one-year license revocation. If the BAC was between 0.15% and 0.20%, there is a mandatory minimum of five days in jail; for BAC above 0.20%, the mandatory minimum is 10 days. A second DUI within 5 years carries a mandatory minimum of 20 days in jail (one month if within 5 years, 10 days if within 5 to 10 years), a $500 minimum fine, and a three-year license revocation. A third DUI within 10 years is a Class 6 felony with a mandatory minimum of 90 days in jail (six months if within 5 years), an indefinite license revocation, and forfeiture of the vehicle. Fourth and subsequent offenses are also Class 6 felonies with mandatory minimum of one year in prison.

Marijuana Legalization and Remaining Restrictions

Virginia legalized recreational marijuana for adults 21 and older effective July 1, 2021, permitting possession of up to one ounce and home cultivation of up to four plants per household. However, the commercial retail market has not yet launched as the regulatory framework has been subject to political disputes between the legislature and governor. Public consumption remains a civil penalty of up to $25. Possession of more than one ounce but not more than one pound is a civil violation with a $25 fine. Possession of more than one pound is a felony. Distribution of marijuana outside any future licensed framework remains a criminal offense. Virginia automatically sealed or expunged many prior marijuana-related misdemeanor convictions when legalization took effect.

Self-Defense and Duty to Retreat

Virginia follows a duty to retreat doctrine in most situations, meaning a person must retreat if possible before using deadly force in self-defense. This principle has been established through Virginia case law rather than statute. The exception is the castle doctrine, which provides that a person has no duty to retreat within their own home when confronted with an intruder or aggressor. Virginia courts apply a reasonableness standard, considering whether the defendant reasonably believed that deadly force was necessary to prevent imminent death or serious bodily harm. Virginia does not have a stand your ground statute. The distinction between justifiable self-defense and criminal use of force is highly fact-dependent, and Virginia juries are given detailed instructions on self-defense elements.

Virginia Court System

Virginia's criminal cases are tried in the General District Courts (misdemeanors and preliminary felony hearings) and Circuit Courts (felonies and misdemeanor appeals). Virginia has 31 judicial circuits. The Court of Appeals of Virginia serves as the intermediate appellate court for criminal cases, and the Supreme Court of Virginia is the court of last resort. Virginia recently expanded the Court of Appeals' jurisdiction in 2022 to provide appeals as a matter of right in criminal cases, replacing the prior petition-based system for most appeals. Juvenile and Domestic Relations District Courts handle cases involving minors. Federal criminal matters are handled by the Eastern and Western Districts of Virginia.

Damages & Penalties

Virginia's felony penalties are: Class 1, life imprisonment (formerly death-eligible, now maximum is life); Class 2, 20 years to life; Class 3, 5 to 20 years; Class 4, 2 to 10 years; Class 5, 1 to 10 years (may be treated as a misdemeanor with up to 12 months jail at the jury or court's discretion); and Class 6, 1 to 5 years (may also be treated as a misdemeanor). Misdemeanor penalties are: Class 1, up to 12 months jail and $2,500 fine; Class 2, up to 6 months and $1,000 fine; Class 3, fine up to $500; and Class 4, fine up to $250. Virginia has a habitual offender or "three strikes" provision for violent offenses that can mandate life imprisonment for a third conviction for certain violent felonies.

Recent Legislative Changes

Virginia abolished the death penalty in 2021, becoming the 23rd state and first Southern state to do so. Recreational marijuana was legalized in 2021, though the commercial market remains in development. The felony larceny threshold was raised from $500 to $1,000 in 2020. The state ended the practice of suspending driver's licenses for unpaid court costs and fines. Virginia expanded its Court of Appeals to provide criminal appeals as a matter of right beginning in 2022. The comprehensive record sealing law enacted in 2021 is being implemented in phases, with automatic sealing provisions gradually taking effect.

Frequently Asked Questions