Don’t give up on that disorderly conduct charge in Virginia

If that “disorderly conduct” charge for your behavior just sounds unbeatable, don’t give up.  Virginia’s section 18.2-415 “Disorderly conduct in public places” is a catch-all, last resort for the Commonwealth’s Attorney (prosecutor). Your lawyer (or you) may be able to fight this charge in several ways. Here’s one way: Section 18.2-415 cannot include conduct “otherwise made punishable under this title.”  Title 18.2 offers many, many other crimes. And if a reasonable judge or jury could have found you guilty beyond a reasonable doubt of some OTHER criminal charge(s) under title 18.2, then that part of your behavior that goes to prove the other crime(s) has to be taken out of consideration for the disorderly conduct charge.

If you shouted mean and nasty things, look at section 18.2-416 “abusive language.”  If you broke something, try section 18.2-137 for damage to property.  There’s more.  After all of this behavior is taken out of consideration, your behavior that remains may not be enough to convict for disorderly conduct.  The prosecutor should have charged you with the other crime(s) instead of charging you with disorderly conduct.  But can the prosecutor later charge you with these other crimes?  Sure, but if that happens, you or your lawyer can argue double jeopardy, or something else that fits the facts of your case.  In addition, the prescribed maximum punishment for these other crimes may be (but not always are) less than the maximum for disorderly conduct, i.e., up to 12 months in jail and a fine of up to $2,500.

Other places to look for a defense to 18.2-415 include the following: (1) whether you had the specified intent; (2) whether you committed the prohibited act(s); (3) whether you were in a “public place”; (4) whether you were engaged in a First Amendment exercise of free speech; and so on.

Of historical interest: Before 1976, the old section 18.2-415 did not EXclude conduct that could be punished as other crimes.  Virginia legislators excluded such conduct and “the utterance or display of any words” in 1976, after the federal appeals court in Richmond held the old section 18.2-415 unconstitutionally vague and overbroad.  Some legislators have since tried, and failed, to remove the other crimes exception.  They may try again.  And note that even though 18.2-415 excludes the utterance or display of any words,” the court may hear evidence about what you said, and how you said it, to evaluate your overall conduct at issue.