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The Land of Probations Before Judgment and Suspended Impositions of Sentences

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Photo from website of U.S. District Court (W.D. Mi.).

No matter how out-of-balance I have found Maryland’s criminal justice system — as to the rights of the criminally accused — Virginia is heavily an even less hospitable place.

Virginia is eminently worse than Maryland in the realm of discovery, alone. In Virginia District Court, mandatory criminal discovery is practically non-existent, and is limited to defendants’ statements to law enforcement, the defendant’s criminal record, and Brady/exculpatory evidence (except that the prosecutor ordinarily is the sole person to decide what evidence is exculpatory, which is like having the fox guard the henhouse). Va. Sup. Ct. Rule 7C:5. Moreover, the governing court rules require seeking, pretrial, a discovery order even to be able to obtain Rule 7C:5 discovery. Worse, in all Virginia courts, Jencks is non-existent.

Without giving an exhaustive list of how much Virginia law is unbalanced in favor of the prosecution, an area of critical note is drunk driving sentencing. Maryland generally has no mandatory minimum sentencing for drunk driving. Virginia provides for twenty days mandatory incarceration for those convicted of drunk driving a second time within five years, and ten days for a second conviction within ten years. Virginia mandates a minimum of five days in jail for having a blood alcohol level of 0.15 or higher at the time of testing, and ten days for having a blood alcohol level of 0.20 or higher at the time of testing. Certainly, even with a conviction, an aggressive defense in Virginia can argue whether the prior conviction has been proven and is a qualifying conviction, and can attack the admissibility and reliability of the breath and blood alcohol testing performed on the defendant.

In various Maryland counties, it is common to receive a probation before judgment — whereby the judge imposes a probation period after a finding of guilt, and where the defendant can say s/he has never been convicted, but immigration authorities consider it a conviction –f or a guilty finding for DWI (which means losing no license points for a DWI guilty finding, with a PBJ) and a whole host of other misdemeanors, where the defendant’s criminal record is otherwise clean and where the factual findings by the judge do not show an egregious crime. Md. Code, Crim. Proc. art. 6-220.

Virginia’s equivalent of a probation before judgment is a suspended imposition of sentence, whereby after a finding of guilt, the case is usually rescheduled six or twelve months down the road, and the case is dismissed, absent any finding of a violation of probation conditions. I have not heard of any SIS’s given for DWI cases, and many prosecutors like to urge that SIS’s are only available under very limited circumstances.

Virginia’s SIS statute appears to apply broadly to a wide range of crimes. Va. Code. § 19.2-303, no matter how much prosecutor’s argue to the contrary. Although the granting of an SIS rests within a sentencing judge’s sound discretion, part of the battle is to convince the judge that s/he has the authority to grant an SIS in the first place. Jon Katz