What if No Police Officer Appears at My Fairfax Criminal Trial?

What if the police officer in my Fairfax criminal case does not arrive at court?

What if a Fairfax criminal or DUI defendant comes to court on his or her trial date, but no police officer nor other prosecution witnesses appear? As a Fairfax criminal lawyer, I know that the answer to that question depends on various factors. At the very least, do not rely on the absence of witnesses to carry the day for your Virginia DWI or criminal defense. You ideally want to pursue a full court press with the assistance of the best Virginia defense lawyer for you. The right lawyer will know the ins and outs of obtaining as much benefit as possible for your best defense when prosecution witnesses are absent on your trial date. (Note: This article focuses on Fairfax court practice specifically, but also has some general practice to criminal defense throughout Virginia.)

What if I go to my trial date by myself? Will a Fairfax prosecutor even get involved in my case if I have no lawyer?

What if you show up for your trial date without a lawyer? Fairfax prosecutors do not automatically get involved with misdemeanor cases where the defendant has no lawyer. (On top of that, when the current chief Fairfax Commonwealth's Attorney was advocating for more funding for his office,  not long ago his office did not even get involved with a large population of non-Virginia DUI prosecutions that had lawyers representing the defendants.) That choice is discretionary with prosecutors, who may also under certain circumstances provide advice to police in your pro se misdemeanor case without actually entering their appearance with the court in your case.

Will my Fairfax judge automatically dismiss my prosecution if the police officer does not appear for my trial date?

As addressed above, a dismissal of your case is not automatically guaranteed merely because of a no-show on your trial date by the police officer or other prosecution witnesses. What will happen with such a no show, then? First, the county General District Court administrative procedures manual (at p. 82) state that the first trial date for  a Fairfax DUI case will "generally be continued" on that first date, without mandating witness presence. Consequently, unless that "generally" provision is altered on your trial date, the police officer's absence in court on that date is not likely by itself to get you a case dismissal. Second, Fairfax trial judges look for good cause for any request by either side to continue a trial date, whether or not the reason is because of an absent witness. In Fairfax County, Virginia, General District Court, "No continuance shall be granted to the Commonwealth or defendant as a matter of right, but only for good cause shown." Fairfax County General District Court administrative procedures manual at p. 51. (The similar statewide Virginia General District Court provision is at Virginia Supreme Court Rule 7A:14. In Fairfax County Circuit Court, "once a case has been set for trial, a continuance of that trial date will be granted only for good cause." Fairfax County Circuit Court continuance policy webpage. Similarly, in Virginia Juvenile & Domestic Relations District Courts, "Continuances should not be granted
except by, and at the discretion of, a judge for good cause shown, or unless otherwise provided by law." Va. S. Ct. R. 8:14(a).

What approaches can I take to oppose a prosecutor or police officer continuance request based on an assertion of sickness or police training?

When a prosecutor seeks a trial date postponement on the basis of sickness, I am ready to argue against such a continuance when the prosecutor does not present sufficient information to show who is sick ("illness" may also mean illness of a police officer's child that s/he now is staying home with if the child is too sick for school), when the officer became sick (if the officer has been sick since three days ago, why am I only being told of the illness on the trial date?) and what is the infirmity (if the infirmity is a stubbed toe from a few days ago (yes, that may be an exaggerated example, that should not automatically lead to a trial date continuance.) When a prosecutor on or close to the trial date seeks a trial date postponement because of police officer training, that can raise a plethora of persuasive defense arguments about why a trained police officer would have waited until the last moment to sign up for training that clashes with the officer's trial court schedule, or why the officer was delayed in telling the prosecutor's office or why the prosecutor's office was delayed in telling the same to the Virginia criminal defense lawyer.

If my judge denies my Fairfax prosecutor's trial date continuance request, have I won my case?

Typically, when a judge denies a Virginia prosecutor's trial date continuance request, the prosecutor will move to have the case entered nolle prosequi, which means a non-prejudicial dismissal that allows the prosecutor to recharge your case within the statue of limitations period. Clearly, a Virginia criminal defendant wants any dismissal to be with prejudice. See my article here about what approaches a Fairfax criminal lawyer can take in objecting to nolle prosequi dispositions (the Virginia nolle prosequi law requires good cause before a nolle is entered, and I am ready to argue that the same good cause that did not justify a trial date continuance also does not justify a nolle prosequi disposition) rather than dismissals without prejudice, or even a trial the same day without prosecution witnesses.

Do the same continuance rules applying to Fairfax police and assistant commonwealth's attorneys / prosecutors also apply to me as a Virginia criminal or DUI defendant?

The answer to the above question is yes. At the same time, Fairfax judges have very busy court calendars and are more likely to grant a continuance motion that is concisely and persuasively presented, which is ideally articulated by a persuasive Virginia criminal defense lawyer hired by you. Additionally, when a criminal defendant sets a hearing before the trial date to seek a trial rescheduling, that might enhance your chances of getting such a request granted. Make sure your lawyer is ready to advocate for as much fairness to be afforded by the court to a defense trial date continuance and rescheduling request as to a Virginia prosecutor or police officer. When your Fairfax criminal lawyer knows what to do in pursuing any trial date continuance you want and in opposing any unfavorable prosecution continuance request, you are one leg up with your Virginia criminal defense.

Fairfax criminal lawyer Jonathan Katz does not rest until he obtains the best possible defense for you. See for yourself how this approach will help you, by calling 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.