First-Time Offender Options in Virginia Criminal Cases

The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.

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Virginia law offers certain first-time offenders an opportunity to avoid a criminal conviction through structured deferral programs. These programs are sometimes called “first offender” provisions, and they exist in several areas of criminal law. Understanding what these programs cover, what they require, and what they do and do not protect against helps people make informed decisions when facing criminal charges for the first time.

It is important to understand at the outset that not every area of criminal law has a first offender program, and not everyone who qualifies for a program will necessarily benefit from using it. Whether to participate in one of these programs is a decision that deserves careful analysis with a defense attorney.

Drug First Offender Deferral: Va. Code § 18.2-251

The most commonly used first offender provision in Virginia is the drug first offender deferral under Virginia Code § 18.2-251. This statute applies to persons charged with possession of a controlled substance under §§ 18.2-250 and 18.2-250.1.

How It Works

Under § 18.2-251, a court may, upon an initial plea of guilty or not guilty, defer further proceedings and place the defendant on probation under conditions designed to address the substance abuse that led to the charge. If the defendant successfully completes the probationary period, the charge is dismissed.

The deferral is not a conviction. The defendant does not receive a guilty verdict or a conviction entry in the record during the deferral period. If successfully completed, the result is a dismissal, which may then be eligible for expungement under Virginia’s expungement statutes.

Conditions of the Deferral

The court will impose conditions tailored to the circumstances. Typical conditions include:

• Enrollment in and completion of a substance abuse treatment or education program
• Random drug and alcohol screening
• Regular reporting to a probation officer
• No new criminal offenses during the probationary period
• Payment of fines, costs, and program fees
• Community service hours

In some cases, the court may require participation in a VASAP program or a court-supervised treatment program. The probation period is typically 12 months, though courts have discretion.

Eligibility

To qualify for the § 18.2-251 deferral:

• The defendant must not have been previously convicted of any felony or of a drug offense under state or federal law
• The defendant must not have previously used the § 18.2-251 deferral

This means the program is available only once. After a successful completion and dismissal, the option is exhausted permanently. A person who later faces another drug charge cannot use § 18.2-251 again.

What Happens If the Program Is Not Completed

If a defendant violates the conditions of the deferral, the court may find them in violation of probation and proceed to enter a conviction and impose sentence. The failure to complete the program can result in a conviction on the underlying drug charge, with all the consequences that follow.

Domestic Violence First Offender: Va. Code § 18.2-57.3

Virginia Code § 18.2-57.3 creates a first offender deferral program specifically for assault and battery against a family or household member under § 18.2-57.2.

How It Works

The procedure is similar to the drug first offender program. A court may, instead of entering a conviction, defer proceedings and place the defendant on supervised probation. Conditions typically include:

• Completion of an anger management or batterer intervention program
• Compliance with a protective order prohibiting contact with the victim
• No new criminal offenses
• Payment of fines and costs
• Any other conditions the court deems appropriate

If the defendant completes all conditions, the charge is dismissed.

Eligibility

The § 18.2-57.3 program requires:

• No prior convictions for assault and battery against a family member
• No prior use of the § 18.2-57.3 deferral

The alleged victim’s consent or opposition may influence the court’s decision about whether to grant the deferral, though it is not legally determinative.

Limitations

Unlike the drug first offender program, the domestic assault deferral does not change the immediate firearm consequences. A protective order issued as part of the deferral conditions still prohibits firearm possession under applicable law during the period the order is in effect. However, because there is no conviction, the permanent Lautenberg Amendment firearms prohibition does not apply if the program is successfully completed.

VASAP and Deferred Dispositions

VASAP (Virginia Alcohol Safety Action Program) is not a first offender program in the same statutory sense, but it functions as a component of deferred dispositions in several contexts, including:

• DUI first offender situations where VASAP is a condition of a restricted license
• Drug first offender deferrals where substance abuse treatment through VASAP is ordered
• Cases where a judge exercises discretion to defer sentencing pending completion of a program

VASAP assessments and educational programs address alcohol and drug use, and VASAP monitors compliance with ignition interlock requirements in DUI cases. The program typically lasts several months and involves fees paid by the participant.

Traffic Offense Deferral

Virginia’s Deferral of Judgment for Traffic Violations statute under Va. Code § 16.1-69.40:1 allows a General District Court to defer the entry of a guilty finding in traffic violation cases for certain first-time offenders. This is distinct from the criminal first offender programs discussed above and applies to traffic infractions and some minor traffic misdemeanors.

Under this provision, a judge may defer proceedings and allow the defendant to complete a driver improvement program. Upon completion, the case may be dismissed without a conviction. The specific application of this statute depends on the charge, the court, and the individual’s driving history.

This deferral option does not apply to reckless driving charges, DUI, or other serious criminal traffic offenses.

What “First Offender” Does and Does Not Mean for Your Record

There are several common misconceptions about first offender programs that are worth addressing directly.

It Does Not Automatically Erase the Arrest

Completing a first offender program and obtaining a dismissal removes the conviction from your record. The arrest record may still exist unless you separately petition for expungement. In Virginia, a dismissal following a first offender deferral can be the basis for an expungement petition, but expungement does not happen automatically upon dismissal. A separate legal process is required.

It Is Not Invisible During the Deferral Period

While you are in the deferral period and have not yet had the charge dismissed, a background check may still reveal that charges are pending. Employers, landlords, and others who run checks while the deferral is ongoing may see the charge. After successful completion and dismissal, a subsequent expungement addresses the remaining record.

It Uses Up the Option

As emphasized above, each of these programs may only be used once. Using the § 18.2-251 deferral for a marijuana charge in your twenties means you cannot use it again for a different drug charge years later. This is a significant consideration when deciding whether a particular case is the right one in which to use the program.

It Does Not Apply to All Charges

First offender programs are available for specific offense categories. If you are charged with something outside the scope of these programs, such as a property crime, a fraud offense, or a violent felony, there is no comparable statutory deferral available. That does not mean there are no other options, but it does mean a different approach is needed.

Consulting an Attorney Before Deciding

The decision to use a first offender program is one of the most consequential choices a person can make in a criminal case. Using the option when the charge might have been dismissed or won at trial can mean permanently exhausting a benefit for a case that may have had a better outcome. On the other hand, a first offender program may be the right choice when the evidence is strong and the benefit of avoiding a conviction outweighs other considerations.

An attorney practicing in the courts of Montgomery County, Radford, Pulaski, and the surrounding New River Valley will be familiar with how these programs are administered locally and can provide guidance tailored to the specific facts of your case.

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This article is general information only and is not legal advice. Do not rely on this article to make decisions about your specific situation. Contact Valley Legal or another licensed Virginia attorney to discuss your case. Attorney advertising.

Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves clients throughout the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski, and surrounding communities.