Challenging Virginia trial continuance request by prosecutors is an opportunity by criminal defendants for a dismissal

Challenging trial continuance motions by prosecutors is part of a Virginia criminal defense lawyer’s arsenal. As a Fairfax criminal attorney, I here address the law governing trial date continuances and defense strategies for thwarting a continuance.

Will my first Virginia criminal court trial date conclude on that first date?

One of three things can happen on your Virginia criminal court trial date. A trial can take place; your case can settle for anything running from a dismissal to a plea deal; or your case can get continued. No matter how much apprehension a trial date can cause many criminal defendants, a continuance of that date can be frustrating and give the defendant a feeling of continued limbo and uncertainty. I instead look at each court date and each moment in court as an opportunity to be challenging the prosecutor’s case and to obtain as much justice as possible against Virginia DUI, misdemeanor and felony prosecutions, regardless of what date actually commences any trial. It is essential to proceed to a trial date fully prepared for trial and never assuming a guarantee of a postponement, dismissal, or favorable negotiation that both the defense and prosecution agree to.

What is the judicial standard for challenging a Virginia prosecutor’s motion to continue a criminal trial date?

In challenging a prosecutor’s continuance motion, I argue that a criminal trial date should not be granted without showing good cause for obtaining a continuance. That is another way to describe the two-pronged Virginia caselaw of leaving criminal trial date continuances to the judge’s sound discretion and considering the prejudice that a continuance causes to the party that loses that motion. For both Virginia criminal and civil cases, “the decision to grant a motion for a continuance is within the sound discretion of the circuit court and must be considered in view of the circumstances unique to each case. The circuit court’s ruling on a motion for a continuance will be rejected on appeal only upon a showing of abuse of discretion and resulting prejudice to the movant.” Ortiz v. Virginia, 76 Va. 705, 720 (2008) (quoting Haugen v. Shenandoah Valley2, 74 Va. 27, 34 (2007)).

What are some of the particular circumstances that might particularly lead a Virginia judge to grant a trial date continuance?

Haugen v. Shenandoah Valley‘s dissent compiles a list of numerous circumstances where a trial judge may be more likely to grant a continuance in a Virginia criminal case, including: ” Code § 19.2–159.1 (continuances shall be granted to allow criminal defendant to obtain counsel and prepare for trial); Code § 19.2–265.4 [and Va. Supreme Court Rule 7C:5(f)] (continuance is a remedy for Commonwealth’s failure to provide discovery in criminal case); Code § 19.2–266.2 (continuance permitted for good cause shown in criminal case [to the prosecution based on the timing and type of certain defense objections and Constitutional motions); Code § 30–5 (a party or party’s attorney who is a member of the General Assembly may receive continuance as a matter of right during time the legislature is in session); Code § 53.1–210…” Haugen, Justice Agee concurring and dissenting (n.2). Challenging a prosecutor’s continuance motion needs to take the foregoing law into consideration.

“Ready for trial, judge”

When the prosecutor asks for a same-day continuance on the trial date, there is often nothing more powerful for the defense to say in in challenging a continuance than: “Ready for trial, judge. We object to a continuance. A continuance will prejudice the defendant because…” If the prosecutor asserts that the police officer is sick, I might interpose that we have not been told when the officer became sick and whether the defense and court could have been told of that illness before the trial date, on which the defense has come ready for trial, and possibly even at the time expense of witnesses, and financial expense of any expert witnesses and a paid court reporter in District Court. Those time and financial expenses are the type of prejudice to the defense that are reasons to consider denying a prosecutor’s continuance motion. When a prosecutor moves for a continuance in order to prepare better or to obtain an essential witness, the inquiry there should focus on the extent to which the prosecution was diligent or not in having that preparation accomplished earlier on, and the extent to which (and when) the prosecutor did or did not give notice to the court and defense before the trial date of a wish to continue the trial date.

What is the judge’s perspective when a Virginia criminal defense lawyer is challenging the prosecutor’s effort to obtain a trial date continuance?

When a Virginia criminal defense lawyer is challenging a prosecutor’s trial date continuance motion, it helps to put oneself in the shoes of the judge (where persuasion is always helped by putting oneself in the shoes of the person we are endeavoring to persuade. In many courthouses, judges have crushing dockets, where civil litigants in particular have to wait a particularly long time for their jury trial, in that only criminal defendants have a Constitutional speedy trial right, as well as a statutory speedy trial right. Judges know that continuing a trial date adds to the bottleneck of trial dates that may become an even narrower bottleneck as hundreds more cases get added to the court’s docket periodically. Consequently, administrative efficiency becomes a part of the sound judicial discretion equation in considering whether to grant a trial date continuance.

What happens when a Virginia prosecutor is denied a continuance on the trial date?

When a Virginia trial judge denies a Virginia prosecutor’s continuance request, that can cause permanent inertia and ultimate end of the prosecution, but not always. First, the prosecutor might find a way to proceed to trial anyway when a continuance is denied. Second, the prosecutor can ask for a non-prejudicial dismissal (nolle prosequi) that enables the prosecutor to recharge the defendant (where the defendant can then argue whether the recharge comes too late under statutory and Constitutional considerations). Third, if the case gets recharged, the defendant must again be challenging the prosecution, and possibly face a re-arrest (or else a summons) on any recharge. Then again, a judge may be less likely to grant a new nolle prosequi where one was previously granted. I here address the good cause standard that must be applied when a judge considers a prosecutor’s nolle prosequi motion. Virginia Code § 19.2-265.3.

The defense needs always to be ready for challenging the prosecution at trial, and to seize all opportunities that come from prosecutor’s unpreparedness and trial date continuance motions

Fairfax criminal lawyer Jonathan Katz pursues your best defense challenging Virginia DUI, felony and misdemeanor prosecutions. Jon Katz has successfully defended thousands of criminal defendants, and will be delighted to meet with you for a free in-person confidential consultation about your court-pending case. Call 703-383-1100.