In that article I laid out the controlling case law and determined that, at that time, the answer was ‘No‘.
However, a law passed by the General Assembly during the 1st 2020 Special Session has changed this answer somewhat.
The bill, which I have written about in regards to other important changes it made, was H.B. 5062, and, among other things, it added § 19.2-298.02 to the Code of Virginia. Subsection D of this statute addresses a way that a charge, which was resolved by a deferred disposition, might be made eligible for expungement. The relevant section reads:
§ 19.2-298.02. Deferred disposition in a criminal case.
…
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.
The key takeaways from this subsection are:
It is not retroactive;
It requires the agreement of both the defendant and the Commonwealth Attorney; and
It requires that the eligibility and the agreement of the parties be made a part of the final disposition order in the case.
In the past, deferred disposition cases have frequently been dismissed after the deferral period without the defendant or defense attorney being required to appear (so long as all conditions have been met successfully). However, going forward, if the Commonwealth Attorney has agreed to make the charge eligible for expungement, it may be in the best interest of the defendant to arrange for the defense attorney to appear on the return date to ensure that the appropriate language is included in the final dismissal order.
Before we discuss the significant recent changes in deferred dispositions made by the Virginia General Assembly, I should first make sure that everyone understands the concept.
The Virginia State Crime Commission describes deferred disposition this way:
“In general, deferred disposition permits a court to withhold imposition of a sentence and place conditions on the defendant that, when met, allow for the charges to be dismissed. Deferred disposition is usually accompanied by the imposition of conditions similar to probation. Upon the satisfactory completion of all conditions, and if no other criminal offenses are committed during the period of deferment, the original charge may be dismissed.”
In short, this is an excellent tool for a criminal defense attorney when our client is a first offender, or is otherwise unlikely to commit any other offense during the period of deferment … and when it is available. Which leads us to the reason for the recent change.
Prior to the 1st 2020 Special Session of the Virginia General Assembly, the availability of deferred disposition in a given case was often the subject of some controversy.
At the time there were approximately nine code section that specifically granted courts the ability to use deferred disposition.
However, some judges and commonwealth attorneys took the position that the ability to suspend judgment and defer disposition was an inherent power of the court and could be used in most criminal cases.
Over the last fifteen years, there were several cases that made it to the Virginia Supreme Court over some variation of this question.
During the 1st 2020 Special Session, the General Assembly passed, and the Governor signed, H.B. 5062, which clarified the issue by adding § 19.2-298.02 to the Code of Virginia.
§ 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.
With the passage of this bill, deferred dispositions became widely available as an option in almost all criminal proceedings, but with the key requirement that there be agreement of both the defendant and the Commonwealth Attorney.
If you are facing a criminal charge, make sure to discuss with your defense attorney whether a deferred disposition is a possibility and a good idea in your case.
With the election of several Commonwealth Attorneys across the state who had deciding not to prosecute certain crimes in the interest of criminal justice reform, some judges had refused to accept dismissal motions presented by the Commonwealth Attorneys.
However, that is no longer a possibility. During the 1st 2020 Special Session, the General Assembly passed, and the Governor signed, H.B. 5062, which added the following language to § 19.2-265.6:
A. Upon motion of the Commonwealth to dismiss a charge, whether with or without prejudice, and with the consent of the defendant, a court shall grant the motion unless the court finds by clear and convincing evidence that the motion was made as the result of (i) bribery or (ii) bias or prejudice toward a victim as defined in § 19.2-11.01 because of the race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin of the victim.
In layman’s terms, this means that, unless the judge presiding over a matter has clear and convincing evidence of bribery or bias in the decision to dismiss a charge, the court must grant a Motion to Dismiss from the Commonwealth Attorney unless the defendant objects.
This is great news for us criminal defense attorneys (and our clients). It allows us to work with the Commonwealth Attorney in a given matter to find a just resolution, which does not have to include prosecution.
Over the last week, my phone has been ringing non-stop with questions about the ATF’s mercurial position on Form 1 suppressors.
For those of you who are not aware, here is a rough timeline of what has occurred:
Phase 1
December 2020 – Diversified Machine, a company that sold solvent trap kits and parts that could be used in Form 1 suppressor builds, was raided by the ATF.
March 2021 – The ATF removed Diversified Machine’s website and replaced it with a notice stating that the possession of silencer parts and kits sold by Diversified Machine is a violation of federal law.
December 8, 2021 – The ATF sent the following warning letter to every person in the Diversified customer and contact files. This letter, and their expansive interpretation of 18 U.S.C. Section 921(a)(24) provided ominous foreshadowing of what was to follow.
After discussions with the Detroit Field Office and ATF legal, those affected were offered several options, including submission of an approved Form 1, destruction of said items, or reporting that the item had been destroyed or discarded in the past.
While there was some discussion of any previously approved tax stamps made from Diversified kits or parts being removed from the registry (NFRTR) and being subject to seizure or surrender, this seemed at the time to be an unlikely possibility given the legal and administrative issues that would arise if an approved application, with an issued excise tax stamp, were to be retroactively removed absent any malice or intent on the part of the registrant. However, it was mentioned as a possibility and as of the writing of the article, the final outcome remains to be seen.
Phase 2
February 28, 2022 – The ATF summarily disapproved hundreds of Form 1 applications, giving the following reason for the disapproval.
What we now know is that the ATF reportedly believed these applicants to be using a solvent trap kit or components that the NFA Division has determined to be illegal ‘suppressors’ under the interpretation laid out in the Diversified letter above.
I have personally looked at several of these disapproved Form 1s and am not certain in many cases how the ATF made such a determination. However, they have reportedly sent the names and contact information of these applicants to the relevant local field offices for possible further contact.
Therefore … if you are one of these disapproved applicants and are contacted by the ATF, be polite but insist that you wish to be represented by counsel before proceeding and immediately contact me or your preferred attorney for dealing with ATF matters.
Phase 3
March 3, 2022 – The ATF sent emails to the majority of Form 1 suppressor applicants who had open applications that had not been denied as part of the February 28 mass-disapproval. This email, pictured below, had two key elements I suggest you read carefully.
The first is the footnote at the bottom of the email which states a long list of ways that an applicant, using a solvent trap kit or components that the ATF considers to be themselves suppressors under the Diversified logic, could be found criminally liable when submitting a Form 1 application. Read this carefully once, and then read it again! This is the clearest statement yet of the rules and potential consequences that applicants will face moving forward.
The second key element that stands out in this email is the list of requested additional information that will need to be submitted for these applications (and presumably all future suppressor Form 1s) if it is to be processed.
The request for part level detail seems to have a dual purpose. It will allow the ATF to deny those applications where the applicant is not machining their own suppressor but rather using a kit or components to ‘make’ one in a way that the ATF has now decided is impermissible. But more concerningly, it will provide the ATF a list of companies that have been providing these types of kits and components for future administrative or criminal proceedings. Perhaps these companies will be seized just as Diversified was, with their customer and contact records being used to target additional suppressor owners who believe they have complied with the already onerous NFA process.
So … should you submit the required information to the ATF? That answer varies from person to person based upon the specifics of each build. However, if the basis of your build is a kit or internal components that you have ordered rather than made, then I do not believe your application will be approved even if you attempt to comply.
Alternatively, the email also offered the option to simply not reply by March 25th and the application would be automatically denied and a refund issued for the $200 excise tax payment. In most, but not all cases, this will be the direction I advise my client to take. If you wish to review your scenario, please contact me or your preferred attorney for dealing with ATF matters.
Phase 4
March 16, 2022 – The ATF sent emails to those applicants whose Form 1 suppressor applications were denied as part of the February 28 mass-disapproval. This email, pictured below, requires that the components be surrendered or destroyed.
What does the future hold for Form 1 suppressors?
If this interpretation is allowed to stand (and unfortunately the enabling statute is vague enough that the agency will probably be granted deference by the courts in making this determination) then only those who have the lathes, drill presses, 3D printers, CNC machines, or other equipment necessary to create suppressors without intermediary parts will be allowed to submit Form 1s. All others will be required to purchase suppressors manufactured by licensed manufacturers on an approved Form 4.
Please note that all I have written here is based upon the information I have at the time of writing. This is a very fluid situation and I will provide updates as more information becomes available.
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Back in 2017, I had written an article to answer the question “Is a charge eligible for expungement if it was dismissed following a deferred disposition?”
Before we discuss the significant recent changes in deferred dispositions made by the Virginia General Assembly, I should first make sure that everyone understands the concept.
With the election of several Commonwealth Attorneys across the state who had deciding not to prosecute certain crimes in the interest of criminal justice reform, some judges had refused to accept dismissal motions presented by the Commonwealth Attorneys.
