Some members of the Virginia Senate have made it clear they are not happy about the Virginia Supreme Court’s holding in Hernandez v. Commonwealth. The case which can be read in its entirety here, is being met with harsh criticism by lawmakers who feel the court has granted judicial discretion in criminal cases that is not apparent in the Virginia Code. In the upcoming session lawmakers are expected to address the ruling with clearer statutory language as to the discretion a trial court judge has in deciding whether a criminal case can be taken under advisement for a year.
Del. Ben Cline, R-Rockbridge, has proposed the bill in response to a 2010 Virginia Supreme Court ruling that said judges have broad authority to defer convictions. “When we speak on criminal matters, we hope and expect the courts to listen,” Cline said at a committee hearing on his bill.
The chairman of the Senate courts committee, Republican Sen. Thomas K. Norment Jr. of James City County, says Cline’s bill would improperly erode judges’ discretion. He proposed an amendment to do the opposite of what Cline intended: make it clear that all judges have authority to defer convictions. “There may be occasions when a judge would like to cut a break to a nice, clean-cut kid who is on his best behavior in court,” said Sen. Mark Obenshain, R-Harrisonburg. “But other people don’t get an opportunity to be cut a break. This is a dangerous precedent in terms of treating people differently.”
Henry County Commonwealth’s Attorney Bob Bushnell said the decision of whether to go easy on a first-time offender rests with prosecutors, “If a judge wants that kind of discretion, he should resign and run for commonwealth’s attorney,” Bushnell said.
The Virginia Supreme Court reversed the Court of Appeals finding that a trial court judge lacks discretionary power to take a criminal case under advisement. In the opinion, the appeal was treated as a pure question of law. The court said, “the act of rendering judgment is within the inherent power of the court and that the very essence of adjudication and entry of judgment by a judge involves discretionary power of the court.” The court did not require that the judge conclude the case within a given time frame after the presentation of evidence. Judges have always had the authority to continue a case for further disposition.
This holding can make a significant difference in your DUI case as a matter of law. You now may be able to convince a judge to take your DUI case under advisement until you complete a set list of conditions. But, every judge has his or her own set of preconceptions and biases, which may or may not favor your case or your personal profile.
Once you comply with the conditions a judge may set in your DUI case, you could expect that the charge would be dismissed, or that a lesser offense is the result, or even if convicted of DUI, you may have a lower penalty than those prescribed in the statutes.
This reminds us that good lawyering is even more important after this case was decided, at least until the legislature revisits mandatory sentencing following this ruling. Every case is different and if this is a subsequent DUI offense your chances of grace are unlikely. That is why it is important to hire an experienced attorney to handle your defense.
THE STRONG LAW FIRM handles DUIs, DWIs, car accidents, truck accidents and severe collision injury claims throughout Northern Virginia, Fairfax, Falls Church, Arlington, Alexandria, Annandale, Ashburn, Sterling, Reston, McLean, Manassas, Woodbridge, and Loudoun County.
CALL THE STRONG LAW FIRM AT 703-350-4241 today.