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Erin L.T. Ranney, PLLC

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Taking criminal and traffic defense cases in Chesterfield, Colonial Heights, Richmond, Henrico, New Kent, Hanover, Caroline, Hopewell, Prince George, Dinwiddie, Petersburg, Emporia, Greensville, Sussex, and across Virginia

 

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Criminal Law Spotlight - June 2017

Juvenile Status Offenses

Juvenile Status Offenses

With school letting out this month, Virginia's teens will find themselves with increasing time on their hands to be in public and exposed to law enforcement. There are a number of offenses that are criminal or quasi-criminal in nature and violate the law by the age of the person alone. These are referred to as "status offenses". These offenses generally apply only to those individuals below the age of 18, although there are others that apply to those under 21. Here are the main Virginia Code Sections that are strictly status offenses:


Curfew:

15.2-926. Prohibiting loitering; frequenting amusements and curfew for minors; penalty.

A. Any locality may by ordinance prohibit loitering in, upon or around any public place, whether on public or private property. Any locality may by ordinance also prohibit minors who are not attended by their parents from frequenting or being in public places, whether on public or private property, at such times, between 10:00 p.m. and 6:00 a.m., as the governing body deems proper.

A violation of such ordinances by a minor shall be disposed of as provided in 16.1-278.4 and 16.1-278.5

B. A locality may by ordinance regulate the frequenting, playing in or loitering in public places of amusement by minors, and may prescribe punishment for violations of such ordinances not to exceed that prescribed for a Class 3 misdemeanor.

C. Without limiting or restricting the general powers created by this section, the term "public place" shall also include public libraries.

(Code 1950, 15-8; 1954, c. 529; 1956, cc. 218, 664; 1956, Ex. Sess., c. 40; 1958, c. 279; 1960, c. 606; 1962, c. 623, 15.1-514; 1968, c. 425; 1983, c. 502, 15.1-33.4; 1995, cc. 59, 658; 1997, c. 587; 1998, c. 865; 1999, c. 1023; 2004, c. 462; 2009, c. 481.)


Tobacco:


18.2-371.2. Prohibiting purchase or possession of tobacco products by minors or sale of tobacco products to minors.

A. No person shall sell to, distribute to, purchase for or knowingly permit the purchase by any person less than 18 years of age, knowing or having reason to believe that such person is less than 18 years of age, any tobacco product, including but not limited to cigarettes, cigars, bidis, and wrappings.

Tobacco products may be sold from a vending machine only if the machine is (i) posted with a notice, in a conspicuous manner and place, indicating that the purchase or possession of tobacco products by minors is unlawful and (ii) located in a place which is not open to the general public and is not generally accessible to minors. An establishment which prohibits the presence of minors unless accompanied by an adult is not open to the general public.

B. No person less than 18 years of age shall attempt to purchase, purchase or possess any tobacco product, including but not limited to cigarettes, cigars, bidis, and wrappings. The provisions of this subsection shall not be applicable to the possession of tobacco products, including wrappings, by a person less than 18 years of age making a delivery of tobacco products, including wrappings, in pursuance of his employment. This subsection shall not apply to purchase, attempt to purchase or possession by a law-enforcement officer or his agent when the same is necessary in the performance of his duties.

C. No person shall sell a tobacco product, including but not limited to cigarettes, cigars, bidis, and wrappings, to any individual who does not demonstrate, by producing a driver's license or similar photo identification issued by a government agency, that the individual is at least 18 years of age. Such identification is not required from an individual whom the person has reason to believe is at least 18 years of age or who the person knows is at least 18 years of age. Proof that the person demanded, was shown, and reasonably relied upon a photo identification stating that the individual was at least 18 years of age shall be a defense to any action brought under this subsection. In determining whether a person had reason to believe an individual is at least 18 years of age, the trier of fact may consider, but is not limited to, proof of the general appearance, facial characteristics, behavior and manner of the individual.

This subsection shall not apply to mail order sales.

D. A violation of subsection A or C by an individual or by a separate retail establishment that involves a tobacco product other than a bidi shall be punishable by a civil penalty not to exceed $100 for a first violation, a civil penalty not to exceed $200 for a second violation, and a civil penalty not to exceed $500 for a third or subsequent violation.

A violation of subsection A or C by an individual or by a separate retail establishment that involves the sale, distribution or purchase of a bidi shall be punishable by a civil penalty in the amount of $500 for a first violation, a civil penalty in the amount of $1,000 for a second violation, and a civil penalty in the amount of $2,500 for a third or subsequent violation. Where a defendant retail establishment offers proof that it has trained its employees concerning the requirements of this section, the court shall suspend all of the penalties imposed hereunder. However, where the court finds that a retail establishment has failed to so train its employees, the court may impose a civil penalty not to exceed $1,000 in lieu of any penalties imposed hereunder for a violation of subsection A or C involving a tobacco product other than a bidi.

A violation of subsection B shall be punishable by a civil penalty not to exceed $100 for a first violation and a civil penalty not to exceed $250 for a second or subsequent violation. A court may, as an alternative to the civil penalty, and upon motion of the defendant, prescribe the performance of up to 20 hours of community service for a first violation of subsection B and up to 40 hours of community service for a second or subsequent violation. If the defendant fails or refuses to complete the community service as prescribed, the court may impose the civil penalty. Upon a violation of subsection B, the judge may enter an order pursuant to subdivision A 9 of 16.1-278.8

Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection A, B, or C.

E. 1. Cigarettes shall be sold only in sealed packages provided by the manufacturer, with the required health warning. The proprietor of every retail establishment which offers for sale any tobacco product, including but not limited to cigarettes, cigars, and bidis, shall post in a conspicuous manner and place a sign or signs indicating that the sale of tobacco products, including wrappings, to any person under 18 years of age is prohibited by law. Any attorney for the county, city or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $50. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city or town which instituted the action.

2. For the purpose of compliance with regulations of the Substance Abuse and Mental Health Services Administration published at 61 Federal Register 1492, the Department of Agriculture and Consumer Services may promulgate regulations which allow the Department to undertake the activities necessary to comply with such regulations.

3. Any attorney for the county, city or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $100. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city or town which instituted the action.

F. Nothing in this section shall be construed to create a private cause of action.

G. Agents of the Virginia Alcoholic Beverage Control Board designated pursuant to §4.1-105 may issue a summons for any violation of this section.

H. As used in this section:

"Bidi" means a product containing tobacco that is wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros exculpra), or any other product that is offered to, or purchased by, consumers as a bidi or beedie; and

"Wrappings" includes papers made or sold for covering or rolling tobacco or other materials for smoking in a manner similar to a cigarette or cigar.

(1986, c. 406; 1991, c. 558; 1993, c. 631; 1994, c. 305; 1995, c. 675; 1996, cc. 509, 517; 1997, cc. 812, 882; 1998, c. 363; 1999, c. 1020; 2000, c. 883; 2003, cc. 114, 615.)


Alcohol:


4.1-305. Purchasing or possessing alcoholic beverages unlawful in certain cases; venue; exceptions; penalty; forfeiture; deferred proceedings; treatment and education programs and services.

A. No person to whom an alcoholic beverage may not lawfully be sold under §4.1-304 shall consume, purchase or possess, or attempt to consume, purchase or possess, any alcoholic beverage, except (i) pursuant to subdivisions 1 through 7 of 4.1-200; (ii) where possession of the alcoholic beverages by a person less than 21 years of age is due to such person's making a delivery of alcoholic beverages in pursuance of his employment or an order of his parent; or (iii) by any state, federal, or local law-enforcement officer when possession of an alcoholic beverage is necessary in the performance of his duties. Such person may be prosecuted either in the county or city in which the alcohol was possessed or consumed, or in the county or city in which the person exhibits evidence of physical indicia of consumption of alcohol. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows that such consumption or possession was pursuant to subdivision 7 of 4.1-200.

B. No person under the age of 21 years shall use or attempt to use any (i) altered, fictitious, facsimile or simulated license to operate a motor vehicle, (ii) altered, fictitious, facsimile or simulated document, including, but not limited to a birth certificate or student identification card, or (iii) motor vehicle operator's license, birth certificate or student identification card of another person in order to establish a false identification or false age for himself to consume, purchase or attempt to consume or purchase an alcoholic beverage.

C. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor; and upon conviction, (i) such person shall be ordered to pay a mandatory minimum fine of $500 or ordered to perform a mandatory minimum of 50 hours of community service as a condition of probation supervision and (ii) the license to operate a motor vehicle in the Commonwealth of any such person age 18 or older shall be suspended for a period of not less than six months and not more than one year; the license to operate a motor vehicle in the Commonwealth of any juvenile shall be handled in accordance with the provisions of 16.1-278.9. The court, in its discretion and upon a demonstration of hardship, may authorize an adult convicted of a violation of this section the use of a restricted permit to operate a motor vehicle in accordance with the provisions of subsection E of 18.2-271.1 or when referred to a local community-based probation services agency established pursuant to Article 9 (9.1-173 et seq.) of Chapter 1 of Title 9.1. During the period of license suspension, the court may require an adult who is issued a restricted permit under the provisions of this subsection to be (a) monitored by an alcohol safety action program, or (b) supervised by a local community-based probation services agency established pursuant to Article 9 ( 9.1-173 et seq.) of Chapter 1 of Title 9.1, if one has been established for the locality. The alcohol safety action program or local community-based probation services agency shall report to the court any violation of the terms of the restricted permit, the required alcohol safety action program monitoring or local community-based probation services and any condition related thereto or any failure to remain alcohol-free during the suspension period.

D. Any alcoholic beverage purchased or possessed in violation of this section shall be deemed contraband and forfeited to the Commonwealth in accordance with 4.1-338.

E. Any retail licensee who in good faith promptly notifies the Board or any state or local law-enforcement agency of a violation or suspected violation of this section shall be accorded immunity from an administrative penalty for a violation of 4.1-304.

F. When any adult who has not previously been convicted of underaged consumption, purchase or possession of alcoholic beverages in Virginia or any other state or the United States is before the court, the court may, upon entry of a plea of guilty or not guilty, if the facts found by the court would justify a finding of guilt of a violation of subsection A, without entering a judgment of guilt and with the consent of the accused, defer further proceedings and place him on probation subject to appropriate conditions. Such conditions may include the imposition of the license suspension and restricted license provisions in subsection C. However, in all such deferred proceedings, the court shall require the accused to enter a treatment or education program or both, if available, that in the opinion of the court best suits the needs of the accused. If the accused is placed on local community-based probation, the program or services shall be located in any of the judicial districts served by the local community-based probation services agency or in any judicial district ordered by the court when the placement is with an alcohol safety action program. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, (ii) certified by the Commission on VASAP, or (iii) by a program or services made available through a community-based probation services agency established pursuant to Article 9 (9.1-173 et seq.) of Chapter 1 of Title 9.1, if one has been established for the locality. When an offender is ordered to a local community-based probation services rather than the alcohol safety action program, the local community-based probation services agency shall be responsible for providing for services or referring the offender to education or treatment services as a condition of probation.

Upon violation of a condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the conditions, the court shall discharge the person and dismiss the proceedings against him without an adjudication of guilt. A discharge and dismissal hereunder shall be treated as a conviction for the purpose of applying this section in any subsequent proceedings.

When any juvenile is found to have committed a violation of subsection A, the disposition of the case shall be handled according to the provisions of Article 9 (16.1-278 et seq.) of Chapter 11 of Title 16.1

(Code 1950, 4-62; 1970, c. 686; 1974, c. 460; 1979, c. 537; 1981, c. 24; 1982, c. 66; 1983, c. 608; 1985, c. 559; 1990, c. 771; 1993, c. 866; 1995, c. 374; 1996, cc. 626, 730; 2000, c. 325; 2002, c. 338; 2003, cc. 845, 849; 2004, cc. 322, 461; 2005, c. 895; 2006, c. 207; 2007, c. 133; 2009, cc. 248

4.1-309. Drinking or possessing alcoholic beverages in or on public school grounds; penalty.

A. No person shall possess or drink any alcoholic beverage in or upon the grounds of any public elementary or secondary school during school hours or school or student activities.

B. In addition, no person shall drink and no organization shall serve any alcoholic beverage in or upon the grounds of any public elementary or secondary school after school hours or school or student activities, except for religious congregations using wine for sacramental purposes only.

C. Any person convicted of a violation of this section shall be guilty of a Class 2 misdemeanor.

D. This section shall not prohibit any person from possessing or drinking alcoholic beverages or any organization from serving alcoholic beverages in areas approved by the Board at a performing arts center owned by the City of Alexandria or the City of Portsmouth, provided the organization operating the performing arts center or its lessee has a license granted by the Board.

(1954, c. 651, 4-78.1; 1982, c. 288; 1991, c. 710; 1993, c. 866; 1994, c. 844; 1997, cc. 784, 837; 2007, c. 813.)


Breakdown:

- Curfew times are set by localities and are found within their local ordinances. the ordinances can be found: http://www.municode.com/library/ClientListing.aspx?stateID=46


- Any person over the age of 18, found out with someone under 18 during a curfew time could potentially be charged with Contributing to the Delinquency of a Minor. The facts and circumstances will play heavily into that decision. This can be particularly problematic for teens "on the border" one way or another.


- Chronic violations of the curfew law can and will result in a Juvenile and Domestic Relations Court judge either placing the juvenile in detention and/or questioning the appropriateness of the child remaining with the parent. It can also result in a CHINS petition - Child In Need of Services.


- Tobacco means "in any form". While the first violation is designated as a civil penalty, chronic violations by a juvenile can result in graduated punishments by the judge. Further, the statutes allows a JDR judge to suspend the driver's license of a juvenile in possession of tobacco.


- Those providing tobacco products to an underage person can be charged with a crime under the same Code section listed above.


- Alcohol offenses can be treated with particular seriousness. This is especially true when paired with a motor vehicle in any capacity.


- "Possession" of alcohol does not have to mean that it is in hand. The odor of alcohol about the teen's person coupled with any other indicia (such as a PBT or statements) can be sufficient. Hale v. Commonwealth, 478 S.E.2d 710 (1996).


- If a bottle is unopened, the label on the outside is prima facie evidence to establish that its contents are alcohol. Va. Code Sec. 4.1-353.


- There are also penalties for those providing alcohol to underage persons. See Va. Code Sec. 4.1-301, 302, 304, 306, and 308.



Remember, juvenile offenses are serious cases with a vastly differing sets of dispostions. These are just a few highlights of the juvenile status offense law in Virginia. If you are charged with any criminal offense call me today for a free consultation.

Status Offense Facts


Type:

Summonses or misdemeanors.

 

Maximum punishment:

Misdemeanor - maximum of 12 months in jail, $2500 fine.

 

With multiple misdemeanors, a judge can consider time in detention or committment to the Department of Juvenile Justice.

 

Interesting Facts:  A person can be found guilty of possessing alcohol based upon the odor of alcoholic beverage and the results of a PBT or an admission to consuming alcohol.  A PBT is not strictly required.