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Can I Sue Someone for Malicious Prosecution in Virginia?


After a lengthy ordeal in which you are found not guilty in criminal court, some may find themselves angry rather than vindicated. If someone called the cops or pressed charges on you for frivolous reasons, you have a right to be angry. Not only do you have a right to be angry, but you also have a right to recover money! Whether it was an ex trying to get back at you for breaking their heart or a neighbor who really doesn’t like your dog, there may be someone who was at fault for the injustice that happened to you. Once you have identified who this person is, it is time to sue them for malicious prosecution in Virginia.

What is Malicious Prosecution in Virginia?

Before you get too excited by the potential of suing someone, you should know what malicious prosecution is and what questions you should ask yourself before filing a lawsuit. Malicious prosecution in Virginia is a cause of action or reason to sue somebody who has wrongfully used the criminal court system to hurt you. It is a path towards justice that both punishes your persecutor and returns you financially to the place you were before the charges were filed. Not every case qualifies as malicious persecution and the ones that do are often very obvious. For instance, If an officer plants drugs on you and then arrests you for possessing those drugs, that would be considered malicious prosecution in Virginia.

Was I Maliciously Prosecuted? 

The first question you should ask yourself is whether the person did it on purpose or if it was an accident. Was the person just mistaken about who stole their wallet? Or did they know you and intend for you to get charged instead of the real thief? A good test for whether or not someone’s intent was malicious is to ask whether their intent was for you to be punished for the crime they said you committed or if they had a different motive such as to make you look bad, for revenge, or to stop you from doing something unrelated. If they had some other intent, it was likely not just a mistake that they pointed their finger at you.

The second question you should ask yourself is whether or not this person with malicious intent was the one who instituted the charges against you. This is a fancy way of saying that the person who came in to testify against you, whether it be a police officer, an ex, or a store clerk, is the same person with the malicious intent. So, for instance if you punched someone in the face at a bar and the bartender calls the cops on you because you are a bad tipper and he wants to see you arrested, you can’t sue the bartender for malicious prosecution in Virginia because the person you punched is the one who decides whether to press charges and testify against you.

Third, you should ask yourself if you were unjustly prosecuted or merely tattled on. For instance, if Friday is your normal day to pick up drugs and your buddy called the cops on you on your way back to make you miss the big poker game that night, that is not malicious prosecution in Virginia. It is malicious in that circumstance, but it was not a frivolous claim, you had drugs. Whereas, if your neighbor who borrowed your tractor tells you to retrieve the tractor from his yard and then calls the cops on you for trespassing, that would be considered malicious prosecution in Virginia. You did nothing wrong and were acting within the scope of your neighbor’s consent.

The final question you should ask is if you were found innocent.  If you think someone planted drugs in your car merely to have you arrested but you couldn’t prove it actually happened and were found guilty, then you likely will not be able to convince another court that you were innocent of the crime. The charge against you must be based on little to no evidence because you must convince a court that it was wrong to press charges in the first place. The only way to prove this is to be found innocent by either the original court or by an appellate court.

How much can I sue for?

If you were maliciously prosecuted in Virginia, you can sue for all money damages that resulted from your persecution including damages to your reputation. This includes all lawyer fees, lost wages, court costs, and any other expenses you incurred while in jail or in court. Every penny you sue for must be accounted for so consult with an attorney for a full accounting of your possible damages including punitive damages which are only available in certain cases.