Evade and Elude Law: Misdemeanor or Felony?

In Virginia, law enforcement officers may charge someone with Evading and Eluding police anytime you fail to stop driving when properly commanded to stop. But within the Virginia Evade and Elude law, there are actually three different crimes. Each of the three crimes has completely different potential penalties, and each applies to a different factual scenario.  Let’s take a look at each of the three crimes that are contained within the Evade and Elude law (which is Virginia Code § 46.2-817).

Misdemeanor Evade and Elude

It is a misdemeanor to willfully and wantonly attempt to escape or elude a law-enforcement officer.  This law also specifically prohibits an individual from disregarding a law-enforcement officer’s visible or audible signal to bring a motor vehicle to a stop.  A violation of the part of the Evade and Elude law is a Class 2 misdemeanor. That means it has a possibility of up to six (6) months in jail and/or a $1,000 fine.  If convicted, your driver’s license may also be suspended for up to 30 days.

Class 6 Felony Evade and Elude

The second crime found within this law heightens the punishment when a person fails to bring his or her vehicle to a stop after receiving a visible or audible signal from law-enforcement and continues to drive the vehicle recklessly, causing danger to any person. If convicted under this part of the law, it is a Class 6 felony. That means there is a maximum punishment of up to five (5) years in jail.

Class 4 Felony Evade and Elude

Finally, the third crime within this law makes it a Class 4 felony when a person fails to bring his or her vehicle to a stop after receiving a visible or audible signal from law-enforcement, continues to drive the vehicle recklessly, causing danger to any person, and an officer is killed in the pursuit. This has a maximum punishment of ten (10) years in jail and a maximum fine of $100,000.

As you can see, each part of the Evade and Elude law has specific elements that must be proven by the Commonwealth before someone can be found guilty. The way to make sure the Commonwealth proves their case is to hire a lawyer with experience representing clients on this charge and related charges. If you need a lawyer to represent you on any level of Evading and Eluding, give me a call for a free consultation.


Carrying a Concealed Weapon or Firearm

Many people mention the Second Amendment, but if you ask them to quote it, only a handful would be able to.  Here is the exact text of the second amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

This has been interpreted by courts throughout the years, and each interpretation helps to define exactly what the amendment means. This amendment provides a limited right to possess firearms. The right is “limited” because it is a right that can be lost in certain circumstances, and it does not apply universally to all types of firearms.

Concealed Weapon Law in Virginia

firearms. But the most commonly charged crime is Carrying a Concealed Weapon under Va. Code Section 18.2-308.  This statute makes it illegal to possess any one of many kinds of weapons with it being concealed. In addition to firearms, it is also illegal to conceal and carry: most knives, nun chucks, throwing stars, and any weapons “of like kind” as those. This law has an exception in that anyone with a Concealed Handgun Permit may carry a handgun concealed. But even with that permit, it is still illegal to conceal and carry any of the other types of weapons in this statute. This law also does not apply when you are at your home or in your own yard, near your home.

The Carrying a Concealed Weapon criminal charge has many other exceptions and defenses. In addition to the exceptions in the law itself, any police officer who charges you with this crime must have strictly abided by the Fourth Amendment before searching you or seizing your weapon.

Open Carry in Virginia

In Virginia, anyone who is legally able to possess a firearm, may openly carry it. Open carrying means that the firearm is carried in such a way that any casual observer would be able to see it and identify it as a gun. Before open carrying a firearm, there are a few points to consider:

  1. If it is illegal for you to possess a firearm (for example, if you are a felon), then it is still illegal for you to open carry a firearm.
  2. Open carry might make you a target. If your goal is self-defense, becoming a target might be counter-productive.
  3. You will be noticed. Law enforcement officers cannot detain or arrest you merely because they see a firearm openly carried. However, a good rule of thumb for staying out of trouble with the police is not drawing attention to yourself and openly carrying a firearm will make you worth noticing to police, who may then observe or follow you with the idea that they will see some other wrongdoing and be able to detain you, arrest you, or seize the gun.

For all of those reasons, you might want to consider not openly carrying your gun, even though you do have a legal right to do so. If you qualify for one, you can get a concealed carry permit and carry your handgun however you like.

Defense Attorney for Carrying a Concealed Weapon in Virginia

I regularly defend clients on all of the gun crimes in Virginia. If you’re facing one of those crimes, you need an experienced Virginia gun crime attorney. Contact me for a free consultation.


Possession of a Firearm by Felon

If you are a convicted felon, it is unlawful for you to possess a firearm unless your right to do so has been restored by a court. So if you have a felony record, and a police officer realizes you are in possession of a firearm, the officer will almost certainly arrest you and seize the gun as evidence.

Firearm by Felon in Virginia

possession of firearmThis crime is defined by Virginia Code Section 18.2-308.2.  As with all crimes, in order for you to be convicted of this the Commonwealth will have to prove each element of the crime. This crime has 2 basic elements:

That you were previously convicted of a Felony;  OR that on some date after July 1, 2005, while you were a juvenile, you were adjudicated delinquent (like “found guilty” but for juveniles) for Murder, Armed Robbery by gun, or Rape; OR that you are under the age of 29, and were adjudicated delinquent as a juvenile 14 years of age or older for any felony.


That you knowingly and intentionally possessed or transported, or knowingly and intentionally carried about his person, hidden from common observation, any Firearm, Stun gun, or explosive material.

Possession of a Firearm by Felon is a Class 6 Felony in Virginia

Any person who was previously convicted of a “violent felony” will be sentenced to a minimum mandatory of 5 years imprisonment.

Any person who was previously convicted of a felony within the past 10 years will be sentenced to a minimum mandatory of 2 years imprisonment.

If neither of those applies, the sentence could include time in jail or prison up to 5 years, as applies with all Class 6 Felonies in Virginia.

Defenses for Possession of a Firearm by Felon

The virginia law provides some exceptions to this law. You may have a good defense to being charged under this particular statute if any of the following apply to you:

  1. You only possessed a Stun Gun, and were at or very near your own residence.
  2. You were carrying out your duties as a member of the Armed Forces of the United States or of the National Guard of Virginia or of any other state.
  3. The governor of Virginia restored your gun rights previously.
  4. Your right to possess firearms or ammunition has been restored under the law of another state.
  5. The evidence against you was unlawfully obtained in violation of your Fourth Amendment Rights.
  6. The evidence against you was unlawfully obtained in violation of your Miranda rights.

Illegal Search and Seizure in Possession of a Firearm by Felon Cases

Even when you were possessing a firearm unlawfully, the Commonwealth and Police still must not violate your Constitutional Rights in obtaining the evidence against you.  The Virginia Court of Appeals, in Minter v. Commonwealth (2014), recently considered a case where the Defendant had been charged with this crime, and his attorney moved to suppress the evidence of the gun, because police had violated the defendant’s rights.

In that case, the Defendant, a felon, was carrying a concealed gun when officers saw him walking in a public parking lot. While they drove their unmarked vehicle slowly past, the defendant appeared very interested in their vehicle and began to walk away faster, crossing a muddy pool of water to get away. Officers stopped their vehicle and asked to speak to him and he agreed. The defendant appeared very nervous and was shaking and stammering over his words. The defendant reached into his pockets twice and after the officers had told him to keep his hands out of his pockets. Officers conducted a pat-down and asked the defendant if he had any weapons. He stated that he did, and they located a handgun on his person.  At the defendant’s trial, the evidence of the gun was allowed and he was convicted.  But the Defendant appealed that decision.

On his appeal, the Court of Appeals held that the Defendant had been “seized” by the police officers at the moment they did the frisk, or “pat-down”. And when they did that, they did not have reasonable suspicion to believe the Defendant had been committing a crime, and they had no other reason to believe he was carrying a weapon.  Because they did the pat-down without reasonable suspicion, the gun should not have been admitted into evidence at the Defendant’s trial. As a result, the Defendant’s conviction was reversed.

The point is this:  Officers have to follow the rules, and if they haven’t followed the rules in your case, an experienced attorney who has handled firearm cases should be able to help you get a good result.  Many of these same principles apply to various drug charges as well.

Can I get my Gun Rights Restored?

Maybe.  You can petition to have your right to possess a firearm restored. That petition is usually made in the Circuit Court, and a firearm law attorney should be able to help you with the process. The Virginia State Police have provided some good information regarding Restoration of Gun Rights.

Virginia Beach Expungement Lawyer

Expungement or Sealing of Virginia Criminal Records

expunge-arrest-recordsIf you have been arrested or charged with a crime, it is likely that you do have a criminal record, even if you were ultimately found not guilty or the prosecutor dropped the charges.  The record of your arrest will still be there, and in most cases is available to the public and can show up on background checks.  The solution to this problem is expungement.

Your Virginia criminal record may be expunged if:

  • you were charged with a crime, but found not guilty
  • the charges against you were dismissed, dropped, or “nolle prossed”
  • your name or other identification was used without your consent to commit a crime.

If you were convicted (found guilty or pled guilty) of a crime in Virginia, your record cannot be expunged unless the Governor of Virginia grants you an absolute pardon based on your actual innocence.  This is very uncommon, and if you were actually convicted or pled guilty, the chances of getting a pardon are very slim.

People who wish to have their arrest record expunged must file a petition with the circuit court in the city or county where the charge was dismissed, along with a complete set of fingerprints.  A copy of the petition is also filed with the Commonwealth Attorney’s Office for that city or county, and the petition must include information on the specific charge to be expunged, the date of the final disposition of the charge, the petitioner’s date of birth, and the full name of the petitioner at the time of the arrest.  Sometimes a court hearing will take place, with the Commonwealth, to determine whether the expungement order should be granted. It is always a good idea to have a criminal defense attorney file and track your expungement to minimize the risk of any problems and to be sure the expungement gets transmitted to all the state agencies needed to ensure the arrest is actually removed from your record.

An expungement can help you get your life back and prevent problems in seeking jobs and obtaining security clearance.

Contact us for a free consultation and flat-fee price quote for getting your arrest record in Virginia expunged. We serve clients in Virginia Beach, Norfolk, Newport News, and throughout Hampton Roads.

Getting a Ticket After a Car Accident

wreck-ticketIt’s bad enough that you’re car was just wrecked, but why did the police officer also have to write you a ticket?  In Virginia, it’s very common for one or all of the people involved in a vehicle accident to get a traffic ticket. The most common tickets cops give after wrecks are for reckless driving, following too closely, or failing to yield. But here is what you must remember:  the police officer cannot make a determination about who is “at fault” in the wreck, and if he didn’t witness it, it will be pretty difficult for him to establish any violation of the law at all.

Why Fight the Ticket After A Car Accident?

So one reason to fight the traffic ticket after your car accident is because a knowledgeable traffic attorney can often win the case, getting the ticket completely dismissed and keeping it off your record. This is especially true if the police officer did not actually see the accident occur.  The second reason to fight your ticket is related to your personal liability in the wreck.  In some cases, if you’re found guilty of the traffic ticket related to a wreck, then you will also be automatically liable for the other party’s damages and injuries from that accident.

Always remember that pre-paying a ticket is exactly the same as being found guilty of it. When you pay that fine to the court, you are admitting that you did exactly what you’ve been accused of. So pre-paying or going to court and losing could both end up costing you or your insurance company many thousands of dollars. The solution? Let us fight your traffic ticket, and also consult one of the best Virginia Beach Personal Injury Lawyers to see whether you might have a valid claim for your own injuries caused by the accident.

Criminal Defense in Hampton Roads, Virginia