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Withdrawal of felony counsel and marijuana 251 license suspension

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Virginia’s 2017 legislative session concluded with the following two important criminal law bills:

1. On February 18, 2017, I blogged that legislative efforts failed to exempt marijuana 251 dispositions (enabling an ultimate dismissal of a drug possession charge after a finding of facts sufficient to convict) from mandatory driver license suspensions. That changed on February 24, when a substitute to the bill passed both houses of the Virginia legislature on February 24, 2017.

If signed into law by the governor, the bill will give the sentencing judge the discretion whether to suspend a marijuana 251 defendant’s driving privileges for six months, so long as the offense was not committed while the defendant was “in operation of a motor vehicle.” If the sentencing judge opts not to suspend the defendant’s license, then the required minimum community service for the 251 disposition increases from twenty-four hours to fifty hours.

If the bill becomes law, we may see more 251-eligible defendants seek a negotiation whereby the prosecution will agree not to seek a license suspension, rather than going to trial and having the prosecutor seek a license suspension if the defendant does not prevail at trial. Some judges, of course, might be more reluctant to enter a 251 disposition in the first place if the defendant maintains his or her right to proceed to trial.

2. New legislation passed on February 15, 2017, and to be codified as Virginia Code § 19.2-190.2, will significantly change the landscape of practicing felony defense in Fairfax County, Virginia, and beyond.

For years in Fairfax, a retained lawyer could not expect that s/he could enter his or her appearance in a felony case at the District Court level and withdraw from the case upon indictment if the client had not paid for Circuit Court defense. After probable cause is found at a Fairfax preliminary hearing — or if the defendant waives his or her right to such a hearing — the chief Circuit Court judge expects the same lawyer to appear at the Circuit Court term date when the felony trial date will be set, and to continue representing the defendant, absent a successful motion to withdraw as counsel.

Before this new legislation, criminal defense lawyers in Fairfax felony cases have been placed in a position either to require advance payment for both District Court and Circuit Court representation even when many lower-level felony cases resolve as misdemeanor dispositions at the District Court level, or to risk being required to spend substantial time for a multi-day jury trial without being sure that payment will be made for such services.

The benefits of this Fairfax County Circuit Court approach include maintaining continuity in the representation of the defendant. The disadvantages include defendants facing lawyers who will require Circuit Court payment when the case is still in District Court, and lawyers who might end up defending in Circuit Court without payment for the Circuit Court phase of the case.

The new legislation does require retained criminal defense counsel to notify the Court and the defendant within ten days of District Court certification of the felony case to the Circuit Court, that the lawyer is withdrawing his or her representation. That changes the situation in county courthouses that currently do not require a retained lawyer to continue his or her representation in Circuit Court after entering an appearance in District Court for a felony case.

As a practical matter, if a criminal defense lawyer wishes to have the option to utilize this new legislation, it is wise that the lawyer’s retainer agreement clearly advise about this legislation, and that the lawyer provide written and oral advice about the new legislation to clients who entered retainer agreements with the lawyer before this legislation came into being.