Virginia probation revocation- Fairfax criminal lawyer on the limits of “technical violation” penalty limitations

Virginia probation revocation (VPR) proceedings can be very stressful on defendants. As a Fairfax criminal lawyer, I know that 2021 brought a great statutory change that limits penalties for alleged “technical” probation violations, versus new convictions that cause a probation violation. Virginia Code § 19.2-306.1 However, if a judge dislikes the statutory limits on penalties for technical probation conditions, the judge may look for ways in which such limits are not as limiting as they may appear at first blush. For instance, if a judge denies pretrial release pending a VPR hearing, that period of detention until the VPR hearing can blunt the benefit of such penalty limits. Section 19.2-306.1(C) provides that: “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, the Virginia Supreme Court has confirmed that if you press your luck with getting repeated dirty urine tests for illegal drug use, you might get yourself into the territory of a third technical violation which means no statutory limits on the amount of suspended jail / prison / incarceration time that a judge may impose for such a VPR. Commonwealth of Virginia v. Canales, ___ Va. ___ (2025).

Why would repeated dirty urines not amount to one technical violation for a Virginia probation revocation proceeding?

During his probation period, Canales repeatedly produced dirty urines, and some clean urine drug tests in the interim. Ironically, it was these clean urine tests that trumped an argument in his Virginia probation revocation proceeding that repeated dirty urines could have resulted from one incident of illegal drug use that perhaps kept the drug for a period of time in Canales’s blood stream. Canales’s trial judge slammed him in sentencing for his repeated illegal drug use while on probation, sentenced to two and one-half years of active imprisonment. In Canales,  the Virginia Supreme Court concludes “that the circuit court permissibly determined that the probation violations at issue were not part of a ‘single course of conduct’ under Code § 19.2-306.1.” Canales.

Fight allegations of dirty urines tooth and nail in VPR proceedings

You want to fight allegations of dirty urines tooth and nail in Virginia probation revocation proceedings, starting with opposing being detained without detention release pending your VPR hearing. For starters, make sure your lawyer is ready to challenge the finding of a positive drug test in the first place, including challenging chain of custody, possible contamination of the urine sample somewhere along the way, whether the drug test was only by dipstick (which requires lab testing if positive) versus by a lab test, and the accuracy of the lab testing.

What should I do if charged with violating my Virginia probation conditions?

Too often criminal defendants do not consider the real risks from a Virginia probation revocation proceeding. When charged with a Virginia probation violation, timely obtain the right lawyer who will pursue your best possible defense. Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense at every turn.  For your free strictly confidential in-person initial consultation with Jon Katz, call 703-383-1100, Info@KatzJustice.com, or (text) 571-506-7268.