Several charges in Virginia (including domestic assault and possession of marijuana) provide the possibility of a “deferred finding" for a first offense. A deferred finding is when a defendant comes before the court, pleads guilty (or no contest) to the charge, the court finds enough facts to prove guilt, BUT withholds a conviction for a period of time. If during that period of time, the defendant does everything the court orders him to do, it DISMISSES the charge. In many cases, this provides a huge benefit to the defendant. But in other cases, it’s not such a gift.

This article will explain the downsides to deferred findings and circumstances in which it may not be such a great decision to take a deferred finding.

Downsides to Virginia Deferred Findings

1) They are not expungeable – Defendants must be aware that just because a deferred finding is entered, and the charge is dismissed, that does not mean the arrest record is expunged. In Virginia, to have a charge expunged, you have to have been: 1) acquitted of the charge, or 2) the charge was dropped (“nolle prossed") by the Commonwealth. There are other limited circumstances, but they will not apply in the context of deferred findings.

What that means, practically, is that if the defendant were to pull their criminal record after the case is dismissed, there will still be a record of the arrest. Further, if you are asked on a job, loan, or school application if you were ever arrested of the charge, you would have to say yes.

While a deferred finding is certainly better than a conviction, be prepared for questions to arise if someone pulls your record.

2) You can still be convicted (and you give up any chance of a defense) – Being granted a deferred finding does not mean that the defendant’s charge will automatically be dismissed. The dismissal MUST be EARNED. As a condition of most deferred findings, the court will require probation, educational courses, community service, and/or additional requirements, depending on the case. If those requirements are not fulfilled, the defendant will be brought before the court to “show cause" why a conviction should not be entered.

What is more, once the defendant is show caused, he or she cannot then argue innocence to the underlying charge. By accepting a deferred finding, you are admitting guilt (or at the very least, that you would lose at trial). Therefore, arguing actual innocence will not assist you in avoiding a conviction.

3) For immigration purposes, they are convictions – For defendants without citizenship, a deferred finding equates to a conviction. Therefore, generally speaking, they will not benefit the non-citizen defendant.

Situations in which Deferred Findings May Not be the Best Choice

Given this, a defendant should not simply accept a deferred finding because it “seems fair" or the Commonwealth Attorney (or even judge, for that matter), says the charge will be dismissed. Each case is different, and the defendant MUST meet with an attorney to determine the best options. Below are a few circumstances where more thought must be given:

1) The case is defensible – If you are innocent of the charge, if there is something flawed about the police investigation, or of there is something about the case that makes it “winnable," a serious discussion must be made about the benefits versus the risk of taking a deferred finding. Time and time again, I have had clients who want take a deferred finding “just to get it over with." That is absolutely the wrong approach, and if I as an attorney am willing to put the time and effort into fighting, so should you. This is your case, and you deserve access to our system.

2) It is unlikely the Defendant will comply with probation – Unfortunately, in some circumstances a defendant is simply unwilling or unable to comply with probation. It takes time, effort, and organization to comply with the court’s order. If compliance is very unlikely, rejecting the deferred finding may be the best idea.

3) There is a possibility of a deferred finding even if you lose at trial – Though this differs among judges and jurisdictions, many times a deferred finding can be attained even if the defendant pleads not guilty to the charge, goes to trial and loses. And if the case is initially tried in the lower level (general district court) and the outcome is a conviction, there is the option of appealing the case to the circuit court to ask a higher level judge for the deferred finding. It may be more time and expense, but that option must also be considered.

For more questions about deferred findings or other criminal law questions, feel free to call me at BenGlassLaw.

James S. Abrenio