Legal Question in Criminal Law in Virginia

Re: Avoiding a criminal record for a first time misdemeanor offense

And who or what led you to conclude that you were breaking the law? Who else, of course, but the sturdy constable, obviously, who closed on you obliquely, catching you in a private (sipping) moment)in your vehicle, and who thereupon, undoubtedly, delivered a stern rebuke along with the summons to appear and answer for this opprobrious conduct. Indeed.

Naturally, I suppose, one could safely conclude that this falcon-eyed officer of the law failed to mention that Va. Code Sec. 18.2-323.1 criminalizes(Class 4 misdemeanor) the ingestion of alcoholic beverage by the operator of a motor vehicle only while said operator is actually operating said vehicle upon a public highway in the Commonwealth.

Subsection (B) of the afore-referenced statute merely creates a rebuttable presumption that the operator consumed alcohol in violation of the statute if an open container of such is found within the passenger compartment.

In other words, if you in fact had not consumed any alcohol whatsover while you were driving the vehicle, but in fact, only resorted to the imbibement after you had parked the vehicle, you are in fact, legally speaking, completely and utterly innocent of this charge, and should be arguing as much to the traffic court judge who is assigned to hear and decide your case.

I wish you the best of luck with this. (If for some reason you elect not to contest the charge, tell them you want a disposition known as Suspended Imposition of Sentence [SIS]).

Re: Avoiding a criminal record for a first time misdemeanor offense

In Virginia, there are no first offender statute for aa charge of this nature. However, in negotiating with the prosecutor, it is possible to achieve a disposition that avoids a permanent conviction.It is also posible that a judge will impose the same type of 'deferred finding".

Also, if you were not "booked' for this charge and merely summoned to appear, the FBI's National Crime Information Computer might not record the action taken by the court, or the summons. Any local records check will list the charge and disposition.

An 'expungement' in Virgina of a criminal record of any sort, "arrest only" included,is possible only by motion befoe the Circuit Court in a civil proceeding. The prosector can object that the expungment is not needed because an record of a criminal arrest does not necessarily preent a "manifest injustice" to the arrestee. Expungments can only be obtained when the judge or government dismisses the charges, or with dispositions involving certain 'deferred findings'.