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Can't believe it is a criminal charge Other Criminal Charges & Offenses

Discussion in 'Criminal Charges' started by bpdasus, Jul 8, 2022.

  1. bpdasus

    bpdasus Law Topic Starter New Member

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    Jurisdiction:
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    I recently purchased a PWC and took it out on a lake in Virginia with my sons who were in another boat riding tandem with me through the initial "no wake" zone headed out. We had life vests for everyone in the boat, and I had every intention of putting mine on before taking off. Unfortunately, I did not get that far, as a Sheriff's deputy pulled me over and cited me for not wearing a life vest. A Class IV misdemeanor in VA.

    I showed up in GDC to see if the judge would either dismiss or continue it based on my explanation, and offered to re-take the boater safety class. He would not budge.

    I really do not want a criminal conviction on my record, and am considering appealing the case. The circuit court of course is in the same jurisdiction, and although I believe if I appeal the circuit court judge would have to try it as a new case, I am not naive enough to think I will get a fair shake in the same courthouse.

    The only remaining explanation I did not offer initially is that, I was unaware of the requirement to have the life vest on at all times. It had been some time since I took the boater safety class, and/or I did not apprise myself of VA law on this requirement. I honestly thought I was in compliance having it "with" me (in the boat next to me).

    I do not feel a misdemeanor charge is commensurate with what I did, but what are the odds that a judge would agree on appeal? Thank you in advance.
     
  2. Redemptionman

    Redemptionman Active Member

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    You do realize how many people are killed in boating and lake related accidents annually?

    They won't budge due to the nature of the offense, and the fact that people who have family drown from not wearing life vests are on them politically and monetarily. I would have asked for a diversion program or a first offenders reduction. You should be able to get it off your record since most to all misdemeanors are eligible for expungement.

    Good Luck with it, probably looking at an additional 1000-1500 to get it off your record.
     
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  3. bpdasus

    bpdasus Law Topic Starter New Member

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    Redemptionman,

    Thank you for your reply. Yes, I am aware of the incidents of boating accidents due primarily to reckless behavior and/or intoxication; however, in my case, there was none of that. I was trolling through a no wake zone, at no risk to anyone other than myself. This is why I do not feel the charge is commensurate with the "crime". Do people get a misdemeanor charge for not wearing a seat belt?

    I did request continuance with an offer to retake the boater safety course. I also asked for first offender forgiveness. Unfortunately, I don't believe a guilty or no contest plea is able to expunged in VA.

    Thanks again.
     
  4. Zigner

    Zigner Well-Known Member

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    It's good that you didn't offer that explanation. It's exceedingly weak, to the point of being unbelievable. You are required to be aware of the laws related to your activity.
     
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  5. adjusterjack

    adjusterjack Super Moderator

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    When you fall off the boat and hit your head the life vest will still be sitting on the boat next to where you used to be.

    You knew this was a misdemeanor going in. Why didn't you just plead not guilty and bring a lawyer?

    Apples to elephants.
     
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  6. bpdasus

    bpdasus Law Topic Starter New Member

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    Thanks for the candid response. I understand, and don't disagree that I should have known I had to be wearing the vest at all times and not just have it with me. However, to understand that the CONSEQUENCE of not doing so in my situation carried with it the weight of misdemeanor, well I had to read that several times to believe it. Other than cost to the taxpayers for the hour's time the two deputies spent dealing with my egregious offense (yes, this is sarcasm), no person or property was harmed in any way by my action. Again, is someone charged with a misdemeanor for failing to wear their seat belt?
     
  7. adjusterjack

    adjusterjack Super Moderator

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    Again, apples to elephants.
     
  8. bpdasus

    bpdasus Law Topic Starter New Member

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    Not sure I understand how so.

    Thanks for the reply.
     
  9. zddoodah

    zddoodah Well-Known Member

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    So...you were convicted?

    Appeal on what basis? If, as you suggested, appealing gets you a trial de novo (a do-over), then I'd strongly suggest you confer with a local attorney to see whether it would be a good idea to do that and try to negotiate some sort of deferred adjudication. However, if it's just a normal appeal, nothing you've written suggests any basis for doing so.

    Why wouldn't you? What's your defense? You admitted (here at least) that you violated the law, and you didn't write anything that suggests any viable defense. It sounds like your definition of "fair shake" is for the court to disregard the law because you "didn't intend" not to wear the life jacket. No reasonable person would believe that.

    Ignorantia juris non excusat.

    Bwahahaha!

    The Virginia Legislature, which enacted the law, obviously disagrees, and that's all that matters.

    Based on what you've written here, zero.
     
  10. bpdasus

    bpdasus Law Topic Starter New Member

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    Thanks for the reply. I have no reasonable grounds of defense. Only an explanation that I was not willfully violating the law and the hope that a judge might extend mercy to a first time offender. Based upon the negative outlook of that outcome from you and a few other members here, you have answered my question. Thank you.
     
  11. Zigner

    Zigner Well-Known Member

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    Legally speaking, you absolutely were "willfully" violating the law, as you made a willful choice to not wear the PFD. Furthermore, even claiming that you were unknowingly violating the law won't get you far, since a reasonable person would have known the law(s) related to the activity they were participating in.
     
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  12. army judge

    army judge Super Moderator

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    Defendants plead or get convicted of various crimes all across the nation.

    If your criminal record is as pure as winter's first snowfall, all is not lost.

    You can try to make a deal with the prosecutor where you plead guilty, but because you've never been a naughty lad, you're allowed to plead guilty and receive deferred adjudication.

    What the heck is that darn "deferred adjudication/deferred disposition"?

    All isn't lost, mate.

    Well, all isn't lost IF YOUR case hasn't been resolved with your plea or a guilty verdict.


    ========

    Read on, curious one:

    ========

    § 19.2-298.02. Deferred disposition in a criminal case.
    A. A trial court presiding in a criminal case may, with the agreement of the defendant and the Commonwealth, after any plea or trial, with or without a determination, finding, or pronouncement of guilt, and notwithstanding the entry of a conviction order, upon consideration of the facts and circumstances of the case, including (i) mitigating factors relating to the defendant or the offense, (ii) the request of the victim, or (iii) any other appropriate factors, defer proceedings, defer entry of a conviction order, if none, or defer entry of a final order, and continue the case for final disposition, on such reasonable terms and conditions as may be agreed upon by the parties and placed on the record, or if there is no agreement, as may be imposed by the court. Final disposition may include (a) conviction of the original charge, (b) conviction of an alternative charge, or (c) dismissal of the proceedings.

    B. Upon violation of a term or condition, the court may enter an adjudication of guilt, if not already entered, and make any final disposition of the case provided by subsection A. Upon fulfillment of the terms and conditions, the court shall adjudicate the matter consistent with the agreement of the parties or, if none, by conviction of an alternative charge or dismissal of the case.

    C. By consenting to and receiving a deferral of proceedings or a deferral of entry of a final order of guilt and fulfilling the conditions as specified by the court as provided by subsection A, the defendant waives his right to appeal such entry of a final order of guilt.

    Prior to granting a deferral of proceedings, a deferral of entry of a conviction order, if none, or a deferral of a final order, the court shall notify the defendant that he would be waiving his rights to appeal any final order of guilt if such deferral is granted.

    D. Upon agreement of all parties, a charge that is dismissed pursuant to this section may be considered as otherwise dismissed for purposes of expungement of police and court records in accordance with § 19.2-392.2, and such agreement of all parties and expungement eligibility shall be indicated in the final disposition order.

    2020, Sp. Sess. I, cc. 20, 21.


    § 19.2-298.02. Deferred disposition in a criminal case

    .....


    In limited cases, the law in Virginia allows us to secure for our clients a resolution or disposition that avoids a conviction. How, you may ask? First, the client must be "qualified." Usually, this means that you have a clean record and this is your first offense - although the definitions of "clean record" and "first offense" are pretty nuanced. (We will need to go over your personal background in detail at a consultation, as there are too many factors to list out here.) IF you are eligible for this type of disposition, and successful with your obligations to the court, we can help you get the case dismissed- every client's dream!

    In a deferred disposition, the following happens:

    1: The judge takes our plea, which can be either guilty, not guilty, or no contest;

    2: The judge makes a finding that there are facts sufficient for you to be found guilty, if the case proceeded to trial;

    3: The judge then withholds a finding of guilt (meaning he/she does not enter the final conviction on the record and sets the case aside) for a set length of time;

    4: Our client is told what his or her obligations during the "probationary time period" will be - this can be supervision by a probation officer, community service, substance abuse treatment, or other things;

    5: At the end of the "probationary period", if the client performed the obligations as expected, the case is dismissed!

    What offenses are eligible, by law, for deferred dispositions in Virginia?

    - Underage Possession of Alcohol (VA Code 4.1-305(F));

    - Assault and Battery Against a Family or Household Member (VA Code 18.2-57.3)

    - Possession of drugs (VA Code 18.2-251)

    - Trespass

    - Destruction of Property

    - Other misdemeanors found in VA Code 18.2-119 through 18.2-152.

    What happens to my record after my deferred disposition?

    Most people wonder what will happen to their record after their case is dismissed. The criminal record will show that you were charged with a crime, and will also show that the case was dismissed. Sometimes, depending on which database is checked, it will show that you received a deferred disposition. Without question, the record will illustrate that you do NOT have a conviction for the offense, and you can confidently report that you do not have a conviction.

    However, for most of the charges eligible for deferred disposition, you will have had to be fingerprinted. Therefore, you will have a record within the criminal history database as having been charged.

    Can the charge be expunged? Unfortunately, no. Because each of these types of deferrals requires the judge to make a finding that there are facts sufficient for a finding of guilt, the expungement process is not available. The benefit of the deferred disposition is that you get a chance to avoid a conviction on your record. The law does not provide for you to completely hide what happened from public and law enforcement view.

    Virginia Deferred Dispositions | Carmichael, Ellis, & Brock PLLC
    ....

    Choices ALWAYS have consequences, so ALWAYS choose wisely!

    https://www.avvo.com/legal-guides/u...in-virginia--not-always-as-great-as-they-seem
    ....
     
  13. Redemptionman

    Redemptionman Active Member

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    The OP also didn't state whether this occurred in a district local municipality or a circuit larger county court?

    that can make a difference as well
     
  14. bpdasus

    bpdasus Law Topic Starter New Member

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    Thank you for the reply. I will consider this.
     
  15. bpdasus

    bpdasus Law Topic Starter New Member

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    Thanks again. It was in a general district (county) court. One other important note: The judge verbally stated: "This does not get reported anywhere. It stays at the courthouse for 10 years, and then is purged." Is this category (Class IV) of misdemeanor, or this particular code section, not reported in the criminal database? 29.1-748
     
    Last edited: Jul 8, 2022
  16. bpdasus

    bpdasus Law Topic Starter New Member

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    29.1-748
     
  17. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Had it been a boat having the life vest sitting next to him and not on him would have protected him from the crime he was charged with. In fact, he would have been 100% legal in VA.
     
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  18. bpdasus

    bpdasus Law Topic Starter New Member

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    That's correct. That was the (wrong) understanding I had with the PWC I was on - that I had to have one with me.
     
  19. zddoodah

    zddoodah Well-Known Member

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    AFAIK, no one here is a lawyer licensed in Virginia, so I'm not sure you're going to get any sort of clear response to this. That said, if the judge told you that "[t]his does not get reported anywhere," no one here is likely in any position to contradict that.
     
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  20. adjusterjack

    adjusterjack Super Moderator

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    Ah, I was acronymically challenged. I thought it was a boat. I sure missed the boat on that one.

    :confused:
     

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