Multiple crimes may be prosecuted against your one allegedly wrongful act, says Fairfax criminal lawyer

Multiple crimes can be prosecuted against you even if you have only committed one allegedly unlawful act. As a Fairfax criminal lawyer, I know that success is not always assured in arguing the Double Jeopardy prohibition of the Constitution’s Bill of Rights clause to the Fifth Amendment. Not only that, merely because your criminal prosecution starts with one or two counts does not guarantee against additional charges being filed against you. Consequently, you may wish to ask your potential Virginia criminal defense attorney how they will deal with efforts to expand the number of criminal charges against you, including objecting procedurally to such an expansion of your prosecution, arguing for Double Jeopardy protection (where applicable), and moving to sever counts against you into separate trials.

One firearm offense can grow into numerous criminal counts

D’andra Davon Ballard learned the hard way that multiple crimes can be charged from merely one alledgedly wrongful act, here from an allegedly unlawful public shooting of a firearm. Ballard v. Commonwealth of Virginia, ___ Va. App. ___ (Nov. 6, 2024). Ballard’s encounter with police followed law enforcement’s hearing a gunshot, finding Ballard inside a pickup truck near the apparent area of the gunshot, finding a shell casing nearby on the sidewalk, and finding a handgun behind Ballard’s driver’s seat. Ballard was convicted at a Virginia General District Court trial (by definition, without a jury) of unlawful misdemeanor public firearm discharge. He did not appeal that conviction, which means that it is unclear what, if any, Fourth Amendment Constitutional suppression motion Ballard filed against the search of his car and his arrest. Ballard did appeal his conviction for reckless handling of a firearm, and the Circuit Court dismissed that account, finding that the statute required the prosecution to choose between proceeding on one of the two latter counts, and not one count alone, as they were both only chargeable under the one statute, at Virginia Code § 18.2-280.

How does the Fifth Amendment’s Double Jeopardy Clause not preclude a conviction for multiple firearm crime counts?

Ballard already had multiple felony convictions when arrested for his above-described incident. Therefore, he also got charged with being a felon in possession of a firearm, which conviction can be avoided if the defendant has already had their firearm rights restored pursuant to statute. Virginia Code § 18.2-308.2. Ballard concludes that the Constitution’s Double Jeopardy protections did not preclude Ballard from first being convicted in District Court for the misdemeanor of unlawful public shooting, and then being prosecuted in Circuit Court for the felony of being a convicted felon in possession of a firearm. Nor did the following provision in the unlawful shooting statute preclude the felony prosecution: “Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section.” Virginia Code§ 18.2-280. Although the following major Supreme Court case is not mentioned in Ballard, the starting point for Double Jeopardy analysis for merging counts is Blockburger v. U.S., 284 U.S. 299 (1932), which asks whether the elements of one count fully nest within the elements of another. 

How do I lawfully possess and use handguns and other firearms in Virginia?

The Commonwealth of Virginia is one of the nation’s most Second Amendment-hospitable states. That does not mean that fireram rights are unlimited in the commonwealth. Before you shoot, before you apply to possess a firearm, and before you keep a weapon in your home or elsewhere, know the applicable law and the safety measures needed, and make sure you are sufficiently trained in using the weapon responsibly. Consider that no amount of training will necessarily assure that you will use a firearm in the most ideal way when faced with a life or death sitaution.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Your initial in-person confidential consultation with Jon Katz is free for your pending prosecution. Call us at 703-383-1100, info@BeatTheProsecution.com.