COVID-19 At War With Our Constitution

Statue of Liberty


Under Virginia law, the right to a speedy trial means that incarcerated individuals have a right to a trial within five months of being indicted or five months after the preliminary hearing date. A Virginia Supreme Court Order declaring COVID-19 a natural disaster has, with limited exceptions, shut down our Court system so that most criminal trials are not moving forward.

The Supreme Court Order requires the Circuit and District Courts to continue all criminal matters, including jury trials, subject to a defendant’s right to a speedy trial, with the exception of emergency matters, including but not limited to, quarantine or isolation matters, arraignments, bail reviews, protective order cases, emergency child custody or protection cases, and civil commitment hearings. Judges may exercise their discretion regarding proceeding with ongoing jury trials, and in cases where the defendant is incarcerated.

In drafting this Order the Supreme Court relied upon Virginia Code section 17.1-330 (D). This statute states in pertinent part that if we have a natural disaster the Courts “may, notwithstanding any other provision of law, draft an Order suspending, tolling, extending, or otherwise granting relief from deadlines…”

So this begs the question: If the prosecution is requesting a continuance and a Circuit Court judge grants a continuance past the five-month mark does this deny a Defendant his right to a speedy trial? The statute and Order seem to prohibit going past the five-month mark but at the same time gives the Court the necessary discretion to move past it.

In most cases, a good attorney will look to prior case law, current statutory law, and consider the facts surrounding your particular case to make the proper argument and to give Judges some guidance on how to rule.

As of the date of this post we are in the middle of our third round of 21- day closures. Many individuals in the Virginia Beach city jail and surrounding areas are being held beyond their speedy trial dates. If you need assistance with this or any other matter, please give us a call. And remember, the right attorney makes all the difference.

This article was written by our founder and lead Criminal Defense Attorney Daniel J. Miller. Dan is a Hampton Roads native and has spent 25 years representing clients in criminal defense matters in Virginia Beach and throughout Hampton Roads. If you are interested in speaking to Mr. Miller about a case, please call our office at (757) 267-4949 today to schedule a consultation.

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