Fairfax criminal continuance policy and practice- Virginia criminal attorney says to be fully ready for trial on your first non-DUI post-arraignment court date

Fairfax criminal continuance policy and practice needs to be fully understood by your Virginia criminal and DUI defense lawyer not only so that your defense is not taken by weakened surprise, but also so that the defense can use this knowledge as a sword for arguing against same-day trial date continuances requested by the prosecutor / assistant commonwealth’s attorney. As a Fairfax criminal lawyer, I make sure to be fully ready for every trial date, because a judge should never be replied upon to give an in-court continuance, other than for the standard practice of Fairfax County General District Court (GDC) judges to grant either side a trial date continuance on the first trial date.

Should I seek an advance hearing to ask to request a rescheduling of my trial date?

The ideal way for a criminal defendant to seek a Fairfax criminal continuance is to do so as far in advance as possible before his or her court date. Even if you do not yet have a lawyer, you can yourself get a continuance hearing scheduled and hear. Moreover, if you have no lawyer, do not automatically expect to be granted a trial date continuance to have more time to find and obtain a lawyer. Judge are more willing to grant a postponement request when that is made well in advance of the trial date, so as to save the time and calendaring of the prosecutor’s / commonwealth’s attorney’s office and their witnesses.

What is the procedure for seeking a court date rescheduling in advance of my trial date in General District Court?

Your Fairfax criminal trial date will be scheduled either in General District Court, Juvenile and Domestic Relations District Court, or Circuit Court. On top of that, the Fairfax County General District Court judges also handle the satellite courts for Fairfax City (with its own court clerk at the city hall), Vienna, and Herndon. A Fairfax County General District Court trial date continuance can be sought by submitting this Fairfax criminal continuance request form if a prosecutor signs his or her written consent thereon. The judge does not have to grant the continuance, so if I am already close to the trial date for a case involving the Fairfax County commonwealth’s attorney’s office, I prefer simply scheduling the matter for a continuance hearing (9:00 a.m. for Fairfax DUI / DWI cases in General District Court, and 9:30 a.m. for Fairfax criminal cases in General District Court). A correct continuance hearing request needs to be filed with the court and served on the commonwealth’s attorney’s office before 8:30 a.m. for the requested hearing date. The Fairfax County General District Court will accept attorney court filings by email (but those need to be filed well in advance of the chosen court hearing date) to gdcmail@fairfaxcounty.gov for criminal cases and gdctraffic@fairfaxcounty.gov for traffic cases (with a cc: to cwagdc@fairfaxcounty.gov for the prosecutor’s office, while still getting the commonwealth’s attorney’s office a copy by fax, hand delivery or mail). Fairfax City continuance hearings can be scheduled for Tuesday and Thursday mornings so long as the respective court clerk’s office timely receives the hearing request. Vienna and Herndon court is only held weekly, but the option still exists to set a pretrial hearing for before their weekly court dates.

What is the procedure for seeking a court date continuance in advance of my Fairfax Juvenile & Domestic Relations District Court trial? How readily do Fairfax JDR judges grant continuance requests made on the trial date?

The Fairfax County Juvenile & Domestic Relations District (JDR) Court typically handles court date continuance requests through remote hearings that the moving party arranges by timely and correctly filing and serving this Calendar Control Notice. If the prosecutor opposes the Fairfax criminal defendants’ continuance request, the judge may schedule the matter for a contested continuance hearing. Do your best not to wait until your trial date in Fairfax JDR court to request a continuance. Covid led to a longer delay and backlog in scheduling trials in the Fairfax JDR court, adding that as a factor making judges there probably less willing to grant contested continuance requests that are made on the trial date, which of course is a benefit to the defense when the contested Fairfax criminal continuance request is made by the prosecutor.

How do I seek a trial date continuance in Fairfax Circuit Court?

The Fairfax Circuit Court handles a multitude of criminal and non-criminal jury trials, bench trials and hearings. Do not expect the trial judge in this court to be very receptive to contested Fairfax criminal continuance requests — and even consented continuance requests — made on the trial date. A Fairfax criminal defense lawyer may seek a trial date continuance by scheduling a remote calendar control hearing using this form. If the continuance request is opposed, the defense needs to be ready to argue the matter on a Friday 10:00 a.m. motion hearing date, meeting the court-required advance notice for setting that hearing.

Why does Fairfax criminal continuance policy and practice not assure a continuance request on the first trial date?

If Fairfax criminal continuance policy and practice assured granting a criminal defense or prosecutorial continuance request on the day of trial, that would backlog already heavy court dockets, inconvenience witnesses subpoenaed to testify and be a money loss for them for lost work and any travel expenses, cause the criminal defendant to pay for any repeat appearance of an expert witness, and interfere with criminal defendants’ speedy trial rights (when the continuance is sought by the prosecutor).

Why are Fairfax judges more flexible with some continuance requests over others?

Sickness is one of the most common Fairfax criminal continuance request that gets granted, and particularly if the sickness might be contagious. Nonetheless, I recall at least one Fairfax judge who denied such a prosecutorial request concerning the police officer’s purported illness when I objected and argued in favor of more information (which was not provided by the prosecutor) before granting his continuance request, namely when did the police officer fall ill, what is his illness, and if he was already ill before today when (if at all) before today did the Fairfax police officer tell that to the prosecutor’s office, and if he told the prosecutor’s office about his illness before the court date, why was I not told before the court date, for my client (and any witnesses) to free up more of their court date for other matters? None of this is to say that Fairfax criminal defendants should cook up that they are sick to avoid their trial date. Plenty of judges probably assume that many criminal defendants try that. Defendants must never lie.

If I want witnesses at my GDC Fairfax court date, should my Fairfax criminal lawyer check in advance with the court to protect my witnesses’ schedule?

Your Fairfax criminal lawyer and you may decide to have expert and lay witnesses present to testify on your behalf. Suffice it to say, your witnesses may be reluctant to return to court a second time if your first trial date gets continued through a prosecutor’s Fairfax criminal continuance request. Your expert witness can be expected to bill to return to court, and your Virginia criminal defense lawyer may experience pushback from the judge if your expert is not available on soon-upcoming court dates that are offered by the judge for a new trial date. Your Fairfax criminal defense lawyer can certainly work to avoid such issues by scheduling a pretrial hearing date to ask the judge to make the first trial date one that can be continued on the court date if not settled on that day, or alternatively to make the first trial date one that will be marked as not to be continued (but of course sickness and other unforeseen factors might still lead to a continuance on any trial date). While judge-shopping is not permissible, know nonetheless that if your lawyer convinces the court not to permit any same-day trial date continuances and if you find yourself with one of the less favorable judges, you get that judge and no other judge through a continuance. Yes, a Virginia GDC conviction permits you to appeal and to ask the judge to let you remain at liberty pending appeal, while an appeal means paying a lawyer for the appeal and extending the unknown of how the case will result on appeal.

Will my Virginia criminal lawyer be granted a same day continuance request on my first Fairfax DUI trial date?

“In the Fairfax County General District Court, the first court date on a charge of driving while intoxicated (DWI) will generally be continued and neither the Commonwealth nor the Defense will need to subpoena witnesses for this date.” Fairfax GDC Administrative Procedures (March 2017) at § 5:25, page 82. The foregoing word “generally” is both an opportunity and warning for the defense. It is an opportunity for still enabling your Fairfax DUI lawyer to object to a same-day assistance commonwealth’s attorney’s continuance request. It is a warning to not automatically expect to receive a same-day Fairfax criminal continuance in GDC, but I have never been denied such a request yet, among the many times I have made such a request.

Good cause must be shown to obtain a continuance of your Fairfax criminal trial date

In Virginia GDC criminal court, “continuances should not be granted except by, and at the discretion of, a judge for good cause shown, or unless otherwise provided by law.” Virginia Supreme Court Rule 7A:14(a). Consequently, as a Fairfax criminal lawyer, I use this good cause rule to my clients’ best advantage when explaining to a judge why I oppose a prosecutor’s Fairfax criminal continuance request. Many times judges have sustained my objection to such requests, and in one instance involving allegedly unlawful revenge porn, even the prosecutor’s explanation that a denied continuance would bar recharging the alleged offense due to the passage of the one-year statute of limitations, the judge still denied the postponement request to which I entered an objection.

Arguing the absence of good cause when a Virginia trial judge denies a prosecutor’s postponement request and is then asked to enter the case nolle prosequi

When a Virginia judge denies a prosecutor’s same-day Fairfax criminal continuance request, the prosecutor will either proceed to trial or move to enter the case nolle prosequi, meaning dismissed (literally not prosecuting) without prejudice, meaning enabling the prosecutor to have the criminal allegations recharged. Your Virginia criminal defense lawyer of course wants your case dismissed with prejudice, to prevent any recharge. Sometimes judges have sustained my objection to a nolle prosequi. In arguing against a nolle prosequi, I might point out to the judge that the same absence of good cause for granting the prosecutor’s trial date continuance request applies to the prosecutor’s nolle prosequi request, but judges often grant such nolle prosequi requests nonetheless, possibly viewing it as too unjust to both deny a prosecutorial continuance request AND to deny a subsequent nolle prosequi request, and possibly only being ready to deny such a prosecutorial continuance request only if the judge will grant a nolle prosequi request. Consequently, is a joint continuance denial to the prosecution coupled with granting a nolle prosequi request little different from granting a prosecutor’s continuance request in the first place? I prefer a nolle and recharge to a continuance. The nolle plus recharge gets my objection to both on the record, and can better support any objection I make to a future prosecution continuance or nolle request the prosecutor makes if the case gets recharged. Furthermore, a case dismissal can create inertia in the case that simply leads to no recharge of the case.

Fairfax criminal lawyer Jonathan Katz has successfully defended thousands of people accused of felony, misdemeanor, drug and DUI offenses. When you have Jon Katz as your lawyer, you are in great, experienced and caring hands, and you have a lawyer who works as a team with you and listens closely and acts well on your concerns and ideas about your case. Find out what we mean by calling us at 703-383-1100 for your free in-person confidential consultation with Jon about your court-pending case.