Sep 10, 2020 Timing your hiring of a Fairfax or Virginia criminal lawyer
Timing your retaining a lawyer for your Virginia criminal or DUI defense
Timing your obtaining a lawyer for a Virginia felony, misdemeanor or DUI case involves taking the time to find the right lawyer, and obtaining and investing the finances for the attorney. As a Fairfax criminal lawyer, I know that the prosecution team is already assembled, and that the criminal defense playing field is made more level once the defendant obtains a lawyer.
How do I find the right lawyer for my Virginia DUI or criminal case?
My tip sheet for finding the right lawyer who will pursue your best possible Virginia criminal defense covers such considerations in choosing a criminal defense lawyer as knowing how relevantly experienced and devoted the lawyer is to criminal and DUI defense, and how committed that lawyer will be to you and your case. Former prosecutors who say to hire a former prosecutor are communicating an illusion, in that great criminal defense lawyers come from both a criminal defense and prosecutorial beginnings, and some prosecutors — like some organ transplant recipients — are not suited for the transition to criminal defense, just as I would never be able to stomach prosecuting. Timing the hiring of your lawyer is important.
Am I missing out on key criminal defense opportunities the longer I wait to hire a Fairfax criminal defense lawyer or Virginia DUI lawyer?
Most people do not set aside funds for needing a Virginia criminal defense lawyer, and I do not believe in rushing people to hire a lawyer before they are ready, so long as they know that certain procedural deadlines apply in court cases, and certain opportunities are ideal to pursue earlier rather than later. For instance, some Virginia prosecutors send a notice of intention to introduce a DWI case certificate of analysis into evidence at trial without the need for testimony. A Virginia DUI defendant needs to preserve the option to challenge blood alcohol content (BAC) testing results, and wants to correctly and timely (within a short time window) file an opposition to such a notice, which is ideally handled through a lawyer. For blood draw Virginia DUI cases, the defense has a ninety-day deadline from the date of the blood draw to present the court with a proposed order to transfer a portion of the blood sample to a defense-designated private lab for testing. These are but some examples about the importance of good timing in hiring a criminal lawyer.
For all cases, video evidence and other evidence from private sources might be less likely to have been overtaped, discarded, or hard to find the earlier that a subpoena is issued to obtain such material. Some witnesses are not easy to find and secure for the trial date in the first place, and can become more difficult to secure by subpoena or otherwise as time proceeds forward. Timing your retaining a lawyer enables that lawyer to get right to work on such items.
What if I cannot afford a retained Virginia criminal defense lawyer?
A Virginia criminal defendant who cannot afford a lawyer should correctly and timely request a court-appointed lawyer. If the defendant later obtains the funds for a retained lawyer, s/he has the option to hire that lawyer to replace his or her court-appointed lawyer, while needing to know that a retained lawyer is not always better than a public defender or court-appointed lawyer; it all depends on the lawyers being considered. Timing definitely demands not waiting until it is too late to seek a court-appointed lawyer.
With many Virginia misdemeanor cases, the prosecution waives seeking jail time (both active and suspended), which then leads the court to decline providing a court-appointed criminal defense lawyer. Consequently, the earlier that a Virginia criminal defendant knows whether the court will decline an appointed lawyer, the sooner the defendant knows the timing needed for seeking and retaining a lawyer whom s/he might be able to afford.
Do Covid-19-related trial scheduling delays provide me more time to secure a Virginia criminal lawyer?
Numerous Virginia courts are timing arraignments, trials and felony preliminary hearings later than in pre-coronavirus times, in an effort to create social distancing in the courthouses. Jury trials are being delayed even longer than bench trials, and the scheduled resumption of jury trials is likely to favor incarcerated defendants, who have suffered being presumed-innocent and missing out on getting a speedy trial, but still jailed while awaiting their trial dates.
Hiring a Virginia criminal lawyer less than two or three weeks before trial can present such timing challenges as obtaining timely discovery evidence, finding a lawyer who is available on the trial date, and giving the lawyer sufficient time to seek a trial date postponement if the attorney is not available on the current trial date. I am not saying that it is safe to hire a lawyer anywhere near this close in time to the court date. Individual factors of your criminal case help inform the risks of waiting certain periods of time after arrest or before your trial date to obtain a qualified lawyer.
Must I hire a lawyer before my first Virginia court date?
Sometimes a first Virginia District Court date is a trial date and sometimes not. Some cases start with an arraignment date without the court’s online docket nor the warrant of arrest nor case summons saying it is an arraignment date rather than trial date. Such courts as Fairfax often add an ascertainment of counsel / attorney review date after the arraignment date, which — as with the arraignment — if missed by an unrepresented defendant can lead not only to a bench warrant for the defendant’s arrest but also a new prosecution for failure to appear in court. When you hire a lawyer before any court date, you have the peace of mind that you will not face any timing nor other landmines by yourself.
Do I automatically get a continuance if I appear for my first court date without a lawyer?
A reason that Virginia courts set arraignment dates for certain cases is to make clear to the defendant that appearing on the trial date without a lawyer can then be deemed a waiver of the right to have an attorney. Even though I repeatedly see judges grant trial date continuances to Virginia criminal defendants whose first court date is their trial date, I do not always see judges advising defendants at that trial date of their Sixth Amendment right to an attorney, nor advising unrepresented criminal defendants of the rights they give up by pleading guilty or no contest / nolo contendere in their cases. This leaves the timing of hiring a lawyer squarely in the lap of the defendant.
For Fairfax misdemeanor prosecutions, how should my timing in hiring a criminal defense lawyer be affected by the county prosecutor’s office now being uninvolved in prosecuting a wide universe of cases?
In July, 2020, the Fairfax County chief prosecutor announced that his office now generally will only handle a limited universe of misdemeanor prosecutions, including DUI, intimate partner assault, and sexual assault cases. (I anticipate that the list of cases not handled by Fairfax prosecutors will shrink once the county government budgets for more prosecutors and prosecutorial staff and resources, but those funds are all the more limited during Covid-19 times.) That is not a reason to be more lax about timing the hiring of your Virginia criminal lawyer. First, the Fairfax commonwealth’s attorney’s office is free on a case-by-case basis to get involved in prosecuting any criminal case. Second, the police officer in the case has more experience than the defendant in preparing for prosecutions, and the sooner the defendant obtains a qualified lawyer, the sooner that police officer’s advantage can be offset. Third, having a lawyer in one’s Fairfax criminal case can take advantage of any absence of a prosecutor in the case.
Does the prosecution cease fire merely because you do not yet have a criminal defense lawyer?
In addition to the above-listed benefits of obtaining a Virginia criminal defendant early on, I point out that the prosecution keeps being able to strengthen its case no matter whether the defendant has a lawyer. This concept summons the saying among recovering alcoholics that their disease continues doing push-ups in the parking lot, whether or not they are in an AA meeting. Waiting to hire a criminal defense lawyer is no cease-fire for the prosecution. Furthermore, when the prosecution files a motion to amend the charging document to its benefit or for other beneficial relief, the prosecutor should not be expected to wait for a criminal defense lawyer to appear in the case and possibly object to the motion before setting a hearing seeking such relief.
Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against Virginia misdemeanor, felony and DUI prosecutions. To get a great jump start on your defense, call Jon Katz at 703-383-1100 for a free in-person consultation for your court-pending case.