Attacks on statutory constitutionality must be a part of your attorney’s arsenal, says Fairfax criminal defense lawyer

Attacks on statutory constitutionality must be a part of your attorney’s arsenal. As a Fairfax criminal defense lawyer, I know that such challenges are more likely to prevail at the appellate court level than the trial court level, but challenges need to be preserved for appeal at the trial court level in order to be permitted to be argued in the appellate court. Of course, Virginia General District Court and Juvenile and Domestic Relations District Court proceedings do not involve preserving matters for appeal, because appeals from Virginia district courts are de novo (an entirely new proceeding) where the Virginia district courts are courts not of record, where those courts do not have their own recording devices.

A great Virginia criminal defense lawyer will think quick on their feet, be well prepared, assemble and synthesize the evidence, and take a piercingly fresh look at the statute(s) against you

Virginia criminal court judges come from a wide range of resumes, plenty of whom have limited criminal defense nor prosecutorial experience, let alone Constitutional law experience after law school. Consequently, as a Fairfax criminal defense lawyer, I know that Constitutional challenges to a statute (versus Constitutional challenges seeking suppression of searches and seizures and statements by criminal defendants, which judges repeatedly handle in criminal charges) are not automatically going to be territory that your trial judge handles very often. We start with that a great Virginia criminal defense lawyer will think quick on their feet, be well prepared, assemble and synthesize the relevant evidence in your case, and take a piercingly fresh look at the statute(s) against you. That is to say that your Virginia criminal defense lawyer needs to pursue a full court press defense for you, and not rely on anything by itself to be a magic bullet. Ideally your criminal defense attorney will also be a good writer, because Constitutional attacks on a statute usually need more development than a few oral sentences to the judge on the trial date. Such Constitutional challenges are ideally filed with the court well in advance of your trial date.

For vagueness and overbreadth Constitutional attacks, make sure your Virginia trial judge makes a finding both as to the statute’s constitutionality on its face and as applied

Numerous Virginia criminal statutes are ripe for attacks as unconstitutionally vague and overbroad, in that criminal defendants’ Fifth and Fourteenth Amendment Constitutional rights are violated to be prosecuted for actions that they are not sufficiently warned are crimes in the first place. Do not expect that such challenges will be magic bullets. If they were, then we would not have the following vague federal Supreme Court definition of obscenity: “(1) whether the material depicts patently offensive representations or descriptions of ‘ultimate sexual acts, normal or perverted, actual or simulated’ or ‘masturbation, excretory functions, and lewd exhibition of the genitals;’ (2) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California(opens in new tab), 413 U.S. 15 (1973). Certainly not precise are Miller‘s references to “offensive”, “appeals to prurient interest” and “serious … value.” At the same time, thirty years later, my former Beat the Prosecution podcast guest Louis Sirkin(opens in new tab) scored a huge Constitutional and civil liberties victory in convincing a majority of federal Supreme Court justices to draw a bright line for child pornography convictions to require that the image be of a minor, rather than to be an adult posing as a minor. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In the next paragraph, I address the need in Virginia to challenge statutory unconstitutional vagueness and overbreadth both on facial and as-applied grounds.

A Northern Virginia trial judge invalidates a criminal statute as unconstitutionally vague, but the Court of Appeals reverses for not addressing the statute as applied

Another of my podcast guests, Michael Cash(opens in new tab) (who moved not long ago from the Fairfax County public defender’s office to another Northern Virginia public defender location), recently experienced an appellate reversal of a trial court victory granting such attacks, invalidating on its face Virginia Code § 18.2-370.2(opens in new tab) that provides: “Every adult who is convicted of an offense prohibiting proximity to children when the offense occurred on or after July 1, 2000, shall as part of his sentence be forever prohibited from loitering within 100 feet of the premises of any place he knows or has reason to know is a primary, secondary or high school.” Commonwealth of Virginia v. Cox(opens in new tab), Record No. 0463-26-4 (Va. App. Aug. 18, 2026) (unpublished). Cox’s defense is that as a homeless person, Cox used public facilities to shower, was showering at the school where Cox was found, and that the statute was unconstitutionally vague to tell Cox that Cox’s activity at the school amounted to criminal loitering. Cox’s trial judge invalidated the foregoing statute on its face without addressing the statute’s as-applied Constitutionality. At least the Virginia Court of Appeals’ remand in Cox gives both Cox and Cox’s trial judge a new opportunity to address the statute both as applied and on its face. In barring a vagueness invalidation of this and all other statutes, Cox for instance says: “[O]ur Supreme Court emphasized that ‘[a]n appellant can only mount a successful facial challenge to a statute by first showing that the statute in question is unconstitutional as applied to her and ‘that the statute in question would not be constitutional in
any context.'” Cox (citations omitted).

Fairfax criminal defense lawyer Jonathan Katz fully defends you on all material fronts against Virginia felony, misdemeanor and DUI prosecutions. A great next step to your Virginia criminal defense is to meet with Jon Katz for your free initial in-person confidential consultation about your court-pending prosecution. Usually Jon can meet with you within a business day of your contacting us at 703-383-1100(opens in new tab), Info@KatzJustice.com and (text) 571-406-7268.