Virginia probation length and violation penalty caps took effect mid-2021 and benefit criminal defendants

Virginia probation length and violation penalty caps screamed out for reasonable limits for decades. As a Fairfax criminal lawyer, I applaud that those probation violation sentencing caps finally have become law, effective the middle of this year. These caps mean that supervised probation for felony cases cannot exceed five years. Also, a first-time technical probation violation cannot bring more than fourteen days incarceration, versus a probation violation based on committing a new crime, which has no penalty cap so long as the penalty does not exceed the case’s original suspended sentence.

What limits does the new legislation place on Virginia probation length and violation penalty caps?

Virginia supervised probation — meaning with a probation officer involved — may not exceed five years. Va. Code § 19.2-303. The foregoing limit does not prevent the court from imposing a substantial suspended jail sentence on the defendant, apart from the Virginia probation length. If a Virginia criminal defendant ever is found in violation of probation through violating any term or condition of probation or violating the criminal law, the court can impose up to the maximum of the suspended sentence for a new criminal law violation, and a lesser maximum sentence for other so-called technical violations.

What type of probation violation is technical for purposes of limiting the punishment?

A major breakthrough with Virginia’s new probation length legislation is the substantial incarceration limits for technical probation violations. What is a technical violation?:

“‘[T]echnical violation’ means a violation based on the probationer’s failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use, possession, or distribution of controlled substances or related paraphernalia; (viii) refrain from the use, ownership, possession, or transportation of a firearm; (ix) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (x) maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer. Multiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section.” Virginia Code § 19.2-306.1(A).

What is the jail sentencing limit for a Virginia technical probation violation?

“The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumption against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation. However, if the court finds, by a preponderance of the evidence, that the defendant committed a second technical violation and he cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than 14 days of active incarceration for a second technical violation. The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation. For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.” Virginia Code § 19.2-306.1(C). Consequently, in light of the Virginia probation length statute, an argument against holding an alleged technical probation violator without bond pending a probation violation hearing, is that doing so can exceed the maximum possible sentence risked for the alleged technical violation.

Obtain a Virginia criminal lawyer who has a strong command over sentencing matters

As much as it is preferable to obtain an acquittal or dismissal of your Virginia criminal case, sentencing is a frequent reality even for some of the best criminal defense lawyers. Make sure that your criminal defense lawyer has a strong command over Virginia probation length and sentencing matters, to pursue the best possible advantage for you with any settlement negotiations and actual sentencing. ‘

Fairfax criminal lawyer Jonathan Katz knows how vital it is to be fully prepared for trial, case negotiations and any sentencing. Learn the major defensive difference that Jon Katz can make in your case by scheduling a free in-person consultation with Jon about your court-pending Virginia DUI, felony or misdemeanor criminal defense, at 703-383-1100.