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Defective Arrest Warrant in Virginia

If you are charged with a defective arrest warrant in Virginia, can the Commonwealth of Virginia still successfully prosecute you? As with all areas of the law, the answer is: it depends.

Virginia Code § 16.1-129.2 lays out the procedure for when an arrest warrant is “defective.” The Code states as follows:

“Upon the trial of a warrant, the court may, upon its own motion or upon the request either of the attorney for the prosecution or for the accused, amend the form of the warrant in any respect in which it appears to be defective. But when the warrant is so defective in form that it does not substantially appear from the same what is the offense with which the accused is charged, or even when it is not so seriously defective, the judge of the court … may issue under his own hand his warrant reciting the offense and requiring the defendant in the original warrant to be arrested and brought before him.”

Thus, the Virginia code states that even if the Commonwealth of Virginia has a defective Arrest Warrant (for example, the warrant charges you with the wrong subsection, or the dates of the alleged offense are incorrect) then in some situations the Court can attempt to cure the arrest warrant sua sponte (on its own initiative). A practical example of this situation occurred in Raja v. Virginia, 40 Va.App. 710 (2003). In Raja, the Virginia Court of Appeals held that, even though the original arrest warrant stated that the defendant’s stalking offense occurred on different dates than were proven at trial, this was not reversible error, as the Commonwealth “may even prove that the offense occurred on a date ‘other than that alleged in the charging instrument.'”

However, as with all areas of the law, there are many exceptions to this rule, and all charges are different. For example, if you are charged with a broad Offense such as “Obstruction of Justice” pursuant to Virginia Code § 18.2-460, can the Commonwealth charge you in the Arrest Warrant under Subsection (A), which is a misdemeanor, even though it actually intends to charge you with Subsection (C), a felony? Having an experienced criminal defense attorney with an attention to detail could make the difference between having a case thrown out for this defect vs. having a case proceed.

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