The new landscape for deferred dispositions in Virginia

Posted on April 3, 2022 by John Pierce

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.

Next Article in the H.B. 5062 series: H.B. 5062 also changed whether a charge may be expunged based upon a deferred disposition.

Posted in Criminal Justice Reform, Criminal Law, Deferred Disposition, Virginia Courts, Virginia Law, Virginia Politics, Virginia State Crime Commission, Virginia Supreme Court | Comments Off on The new landscape for deferred dispositions in Virginia

Virginia law change requires courts to grant a Commonwealth’s motion to dismiss

Posted on April 2, 2022 by John Pierce

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.

Next Article in the H.B. 5062 series: H.B. 5062 also changed the legal landscape for ‘deferred dispositions’ in criminal cases.

Posted in Criminal Justice Reform, Criminal Law, Deferred Disposition, Virginia Courts, Virginia Law, Virginia Politics | Comments Off on Virginia law change requires courts to grant a Commonwealth’s motion to dismiss

Is this the end of Form 1 suppressors?

Posted on March 5, 2022 by John Pierce


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.

Posted in Administrative Law, ATF, ATF Guidance Letters, ATF Ruling, BATFE, eForms, Federal Law, Form 1, Manufacturing, Solvent Traps, Tax Stamp | Comments Off on Is this the end of Form 1 suppressors?

ATF has released a video tutorial for the new eForm 4

Posted on January 14, 2022 by John Pierce

Posted in ATF, BATFE, eForms, Form 4, NFA Transfers, NFA Trusts, Purchasing Firearms, Tax Stamp | Comments Off on ATF has released a video tutorial for the new eForm 4

Does a center console count as a ‘secured container’ for purposes of the Virginia concealed carry law?

Posted on April 4, 2021 by John Pierce

Last year I received a call from a prospective client who had been charged with carrying a concealed firearm without a permit.  For purposes of this article, we will call him ‘Bob’.

Bob had been initially appointed counsel and was being advised by said counsel to consider accepting a plea agreement.  He was concerned by this because he felt, based upon his layman’s reading of the statutory language, that he had not been violating the law at all.

Facts Matter

With the law, the devil is always in the details, so let’s review the specifics of the matter.  The incontrovertible facts, supported by the police report, were as follows:

  • Bob DID have a firearm
  • It WAS loaded
  • It WAS in the center console of his vehicle
  • The center console was closed and latched
  • The officer only discovered it because Bob voluntarily notified the officer during the traffic stop when asked
  • The officer retrieved the firearm by opening the center console

Having set the stage, let’s look at the statutory framework.  § 18.2-308 governs the general prohibition on carrying a concealed weapon in the Commonwealth of Virginia.  However, there are a number of exceptions, including the one that Bob had been relying upon when transporting his firearm in a closed and latched center console.

That exception is currently codified at § 18.2-308(C)(8) and reads in relevant part:

C. Except as provided in subsection A of § 18.2-308.012, this section shall not apply to:

…

8. Any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel;

This exception was added in 2010 via H 885 and I remember its addition quite well since at the time, just as now, I was actively involved with advocating for improvements to Virginia’s gun laws in favor of law-abiding citizens.

The original introduced version (full version history can be viewed here) used the term ‘secured‘ but the version that ultimately passed the House and Senate had changed this word to ‘locked‘.  Governor McDonnel sent it back, specifically asking that the word be changed back to ‘secured‘.  The General Assembly acquiesced and the version signed into law had the word as ‘secured‘.  This is vital because it clearly demonstrates that the word is intended to mean something other than ‘locked‘.

But is There Case Law?

I am glad you asked … because there is.  In 2015, the Court of Appeals of Virginia ruled on this very matter in Hodges v. Commonwealth, 771 S.E.2d 693 (Va. Ct. App. 2015). Without addressing the extraneous details of the Hodges case, he was charged with a concealed carry violation for a firearm in a center console and one of the questions before the Court was whether the exception noted above applied to the center console of a vehicle which was closed but not locked.

Here is what the Court had to say:

Prior to 2010, unless a limited exception applied, this restriction precluded the transportation of a handgun in a concealed manner in a vehicle, including instances where the firearm was stored in a glove compartment or center console.

In 2010, however, the General Assembly enacted … an additional exception to the general prohibition of Code § 18.2–308(A). That exception … provides that Code § 18.2–308(A)’s prohibition on carrying a concealed weapon “shall not apply to … [a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel….” Thus, it is not a violation of Code § 18.2–308(A) to carry a handgun in a car’s glove compartment or console so long as the gun is “secured.”

We addressed the new exception in Doulgerakis v. Commonwealth, 61 Va.App. 417, 737 S.E.2d 40 (2013).  Reviewing the legislative history that led to the enactment of the exception, the Court determined that “locked” and “secured” were not synonymous, and therefore, a weapon did not have to be in a locked container within the vehicle to fit within the exception. … The Court then defined “secured” as “in safekeeping or custody” or “well-fastened.”

Consistent with Doulgerakis, we [find] that “secured” is not synonymous with “closed.” To fall within the exception, the container within the vehicle must not only be closed, but also must be latched or otherwise fastened.

As we noted in Doulgerakis, “the legislature, by adopting the exception relevant here, determined that a weapon ‘secured in a container or compartment in the vehicle’ was not ‘readily accessible for use or surprise if desired.’ ”

In addition, the Court ruled that this exception is not a statutory defense which the defendant must prove but rather an element which the Commonwealth must prove in order to secure a conviction.  In their words:

[T]he Commonwealth ultimately bears the burden to establish that the allegedly concealed weapon was not secured in a container within the vehicle …

[Applying the test from Foley v. Commonwealth, 63 Va.App. 186, 755 S.E.2d 473 (2014)], the evidence required to establish whether a gun is secured within a console is not “peculiarly within the knowledge of the defendant.”  … In general, when officers discover a weapon in the center console of a vehicle, they will have knowledge at least equal to that of the defendant as to whether the console was locked, latched or otherwise secured. In this case, the officers had superior knowledge because the officers actually opened the console. Accordingly, despite an officer not being able to recall at trial whether or not the console was latched, the officers possessed that information at the time that the console was opened.

The Court then summarized their logic by stating that:

As noted above, the 2010 enactment of this exception represented a significant change in the law of the Commonwealth. Aware of our decisions in Leith and other similar cases, the General Assembly chose to effectively reverse those holdings, making the policy choice that, going forward, a weapon, secured in a container (such as a center console) within a vehicle, would not be considered a concealed weapon for the purposes of Code § 18.2–308. It would be anomalous for the General Assembly to have made such a sweeping change in the law of the Commonwealth only to implicitly place on a citizen the burden of asserting that very change.

“[W]e assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.” Washington v. Commonwealth, 46 Va.App. 276, 281, 616 S.E.2d 774, 777 (2005). Given the legislative language selected, it is clear that, in this instance, the assumption is more than a convenient legal fiction.

While this is a great deal to digest for those who do not regularly read case law, the highlighted section above does a good job of summarizing the Court’s finding.

So where does this leave Bob?

The short answer is that Bob needed counsel who was familiar with firearms law.  He did not retain me so I do not know what outcome he received in his case but I hope his counsel was able to properly defend him.

If you have a firearms issue, I strongly advise you to contact me, or another attorney who is intimately familiar with firearms law, to give you the best chance of a positive outcome in your case.

Posted in Concealed Handgun Permit, Criminal Law, Virginia Concealed Handgun Permit, Virginia Courts, Virginia Law | Comments Off on Does a center console count as a ‘secured container’ for purposes of the Virginia concealed carry law?