SPECIAL TREATMENT FOR JUVENILES UNDER VIRGINIA LAW
Juvenile criminal defense is different under Virginia law from adult criminal defense. Juveniles generally experience more lenient treatment under Virginia Law.
Crimes by Juveniles are generally prosecuted as delinquency acts in Virginia Juvenile and Domestic Relations District Courts. Juveniles are defined by their age for purposes of prosecution: 17 and under are considered minors. But your child’s age doesn’t prevent the government from prosecuting your juvenile as an adult for serious crimes.
Virginia law provides that juveniles age 14 to 17 may be tried as an adult for certain enumerated crimes. Va Law §16.1-169(A). However, when a juvenile is tried as an adult and convicted of a felony, the court may depart from any mandatory minimum sentence required by law and suspend any portion of the sentence. Va Law § 16.1-272. When sentencing a juvenile as an adult, the court must consider the juvenile’s exposure to adverse childhood experiences, early childhood trauma, or any child welfare agency and the differences between juvenile and adult offenders.
Police Interrogation of Juvenile
The parent or guardian must be notified of a juvenile’s arrest prior to any custodial interrogation by a law enforcement officer, and the child must have contact with his parent or guardian before the interrogation.
Exceptions to this rule:
• The parent is a codefendant,
• The parent is suspected of committing a crime against the child,
• The parent cannot reasonably be located or refuses contact; or
• The police officer believes the information sought is necessary to protect life, limb, or property from imminent danger and the interrogation questions are limited to those that are reasonably necessary to obtain that information.
Possession of Marijuana by a Juvenile
Under Va Law § 18.2-250.1, possession of marijuana is unlawful in Virginia, but the violation is classified as a delinquent act for juveniles (Va Code §16.1-228) with a maximum fine of $25 and loss of driving privileges for a period of 6 months.
Juveniles are eligible for deferment of their marijuana possession charge, whereas adults are not.
“Delinquent act” means (i) an act designated a crime under the law of the Commonwealth, or an ordinance of any city, county, town, or service district, or under federal law, (ii) a violation of § 18.2-308.7, or (iii) a violation of a court order as provided for in § 16.1-292, but does not include an act other than a violation of § 18.2-308.7, which is otherwise lawful, but is designated a crime only if committed by a child. For purposes of §§ 16.1-241 and 16.1-278.9, “delinquent act” includes a refusal to take a breath test in violation of § 18.2-268.2 or a similar ordinance of any county, city, or town. For purposes of §§ 16.1-241, 16.1-273, 16.1-278.8, 16.1-278.8:01, and 16.1-278.9, “delinquent act” includes a violation of § 18.2-250.1.
ARE JUVENILE RECORDS IN VIRGINIA SEALED OR OPEN?
Virginia Juvenile records, charges, and convictions do not get sealed immediately, nor do they disappear. For this reason, pleading guilty or paying a ticket without fighting it in court will not make your charge go away.
FELONY: A Virginia juvenile felony conviction will remain on your criminal record for the rest of your life.
MISDEMEANOR: A Virginia juvenile misdemeanor conviction will be administratively removed from your criminal record eventually – five years after the offense is committed OR after a juvenile turns 19 years old, whichever is later.
TRAFFIC: Traffic criminal offenses in Virginia committed by juveniles, such as a DUI or reckless driving, can remain on the DMV record until the age of 29.
COMMON JUVENILE OFFENSES
- Alcohol crimes: DUI / DWI (Virginia Laws 18.2-266), Underage drinking / minor in possession of alcohol (Virginia Laws 4.1-305)
- Traffic crimes: Reckless driving (Virginia Laws 46.2-862 and 46.2-852), DUI / DWI (Virginia Laws 18.2-266)
- Theft crimes: Shoplifting / altering price tags / grand larceny / concealing / burglary / robbery (Virginia Laws 18.2-95, 18.2-96, 18.2-103)
- Sexual crimes: sexting / possession, creation and distribution of child pornography
- Computer Crimes: Hacking, Computer Fraud, DDOS Attacks, and other Cybercrime
Strip Searches of Children Prohibited
Under Virginia law, no child under 18 shall be strip-searched or subjected to a search of any body-cavity by a law enforcement officer or a jail officer, with limited exceptions:
– Children committed to DJJ or in a secure local facility for juveniles or adults;
– Children under custodial arrest when there is reasonable cause to believe the child is concealing a weapon.
Federal Law Treatment of Juveniles Charged With Federal Offenses in the United States District Court in the Eastern District of Virginia in Alexandria
18 U.S. Code § 5032 – Delinquency proceedings in district courts; transfer for criminal prosecution
A juvenile alleged to have committed an act of juvenile delinquency, other than a violation of law committed within the special maritime and territorial jurisdiction of the United States for which the maximum authorized term of imprisonment does not exceed six months, shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1003, 1005, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 953, 955, 959, 960(b)(1), (2), (3)), section 922(x) or section 924(b), (g), or (h) of this title, and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.
If the Attorney General does not so certify, such juvenile shall be surrendered to the appropriate legal authorities of such State. For purposes of this section, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
If an alleged juvenile delinquent is not surrendered to the authorities of a State pursuant to this section, any proceedings against him shall be in an appropriate district court of the United States. For such purposes, the court may be convened at any time and place within the district, in chambers or otherwise. The Attorney General shall proceed by information or as authorized under section 3401(g) of this title, and no criminal prosecution shall be instituted for the alleged act of juvenile delinquency except as provided below.
A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be proceeded against under this chapter unless he has requested in writing upon advice of counsel to be proceeded against as an adult, except that, with respect to a juvenile fifteen years and older alleged to have committed an act after his fifteenth birthday which if committed by an adult would be a felony that is a crime of violence or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1005, or 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, 959), or section 922(x) of this title, or in section 924(b), (g), or (h) of this title, criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice. In the application of the preceding sentence, if the crime of violence is an offense under section 113(a), 113(b), 113(c), 1111, 1113, or, if the juvenile possessed a firearm during the offense, section 2111, 2113, 2241(a), or 2241(c), “thirteen” shall be substituted for “fifteen” and “thirteenth” shall be substituted for “fifteenth”. Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to the preceding sentence for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151), and which has occurred within the boundaries of such Indian country, unless the governing body of the tribe has elected that the preceding sentence have effect over land and persons subject to its criminal jurisdiction. However, a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense, or would be an offense described in section 32, 81, 844(d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section 401 of the Controlled Substances Act, or section 1002(a), 1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3)), and who has previously been found guilty of an act which if committed by an adult would have been one of the offenses set forth in this paragraph or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed, shall be transferred to the appropriate district court of the United States for criminal prosecution.
Evidence of the following factors shall be considered, and findings with regard to each factor shall be made in the record, in assessing whether a transfer would be in the interest of justice: the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile’s prior delinquency record; the juvenile’s present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile’s response to such efforts; the availability of programs designed to treat the juvenile’s behavioral problems. In considering the nature of the offense, as required by this paragraph, the court shall consider the extent to which the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal activities, involving the use or distribution of controlled substances or firearms. Such a factor, if found to exist, shall weigh in favor of a transfer to adult status, but the absence of this factor shall not preclude such a transfer.
Reasonable notice of the transfer hearing shall be given to the juvenile, his parents, guardian, or custodian and to his counsel. The juvenile shall be assisted by counsel during the transfer hearing, and at every other critical stage of the proceedings.
Once a juvenile has entered a plea of guilty or the proceeding has reached the stage that evidence has begun to be taken with respect to a crime or an alleged act of juvenile delinquency subsequent criminal prosecution or juvenile proceedings based upon such alleged act of delinquency shall be barred.
Statements made by a juvenile prior to or during a transfer hearing under this section shall not be admissible at subsequent criminal prosecutions.
Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the provisions of this chapter.
A juvenile shall not be transferred to adult prosecution nor shall a hearing be held under section 5037 (disposition after a finding of juvenile delinquency) until any prior juvenile court records of such juvenile have been received by the court, or the clerk of the juvenile court has certified in writing that the juvenile has no prior record, or that the juvenile’s record is unavailable and why it is unavailable.
Whenever a juvenile is adjudged delinquent pursuant to the provisions of this chapter, the specific acts which the juvenile has been found to have committed shall be described as part of the official record of the proceedings and part of the juvenile’s official record.