Recent Blog Posts

Can my charges be expunged?

Shawn Cline — Wed, 09 May 2012 15:21:00 GMT

Rarely does a day go by where I don't receive a call from someone who is seeking an expungement for a charge on their record. These people are often struggling to find meaningful employment because of a charge somewhere in their past that continues to show up on background checks. Unfortunately, this information is a matter of public record, and employers and schools often use this to (lawfully) discriminate against individuals who would otherwise be qualified for positions.
In a perfect world, I would be able to help anyone who has turned over a new leaf and put their criminal past behind them with securing an expungement. Unfortunately, Virginia only authorizes expungements under very limited circumstances. Virginia Code §19.2-392.2 allows for expungement of charges where the charge is dismissed by the court or where the Commonwealth's Attorney takes a nolle pros action, which basically means that they decline to prosecute the case. The code does not distinguish between felony charges and misdemeanors in terms of eligibility (although it does create a higher burden for granting felony expungements).
What is most glaring in this code section is that it does not allow for expungement of any conviction, however insignificant the charge and however light the punishment. So if you were convicted of drunk in public and fined $25 by the court, that will stay on your record for the rest of your life.
Also of importance is the interplay between "first offender" statutes such as those related to drug possession (§18.2-251) and domestic violence (§18.2-57.3). A defendant who completes a first offender program is NOT eligible for an expungement of the charge, because to be placed in the first offender program, a defendant must either plead guilty, or stipulate that the evidence would be sufficient for a conviction. Many attorneys rush their clients toward the first offender program as an expedient way to secure a dismissal of a charge. These defendants often find themselves years later explaining to employers why they were charged with domestic violence or possession of drugs. These factors need to be considered prior to accepting the first offender program, not after the fact when it is to late to change the disposition.
The expungement process is quite lengthy. From the date that the petition is filed to the date when the record in Richmond is sealed can take up to six months. Numerous agencies are involved, form the Courts and Commonwealth's Attorney, to the Virginia State Police. It is a bit of bureaucratic nightmare, but the end result in the right case is a citizen who can truly move past a prior criminal charge.
If you are being held back by a criminal charge as you try to move on with your life, call us right away. We will be able to tell you if you qualify, and can file a petition on your behalf and make the associated court appearances. The process is quite technical and sometimes requires the presentation of witnesses and evidence, but in the end it is always worth the effort. There is no substitute for a clean record, particularly in times like these where employers are looking at multiple applicants for every job available. Don't let your record hold you back!

Is it legal to spank a child in Virginia?

Shawn Cline — Tue, 03 Apr 2012 19:35:00 GMT

I often meet with well meaning parents who have been accused of assault on a family member in violation of Virginia Code §18.2-57.2 who are in fact guilty of nothing more than spanking an unruly child. These concerned parents want to know whether spanking is a crime in Virginia. The answer is more complicated than one might suspect. First and foremost, spanking a child is not prohibited in Virginia, and there is no Virginia Code section directly on point in this regard. However, the Virginia Supreme Court has provided some guidance on the matter in stating that "a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child; but if he exceeds due moderation, he becomes criminally liable." Carpenter v. Commonwealth, 186 Va. 851 (1947). The problem with this rule is that "moderation and reason" lack any specific definition. Is it acceptable to spank a child twice? How about ten times? What if I use a belt? Or a switch? None of these questions are answered directly. However, the Court provides some guidance in that the legality of a particular manner and degree of corporal punishment shall be determined by taking into consideration the "age, size and conduct of the child, the nature of his misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child".
The bottom line is that in Virginia, parents (and those acting in parental roles) may spank or otherwise corporally discipline a child as long as they do so within the bounds of "moderation and reason". Unfortunately, parents using this method of behavior modification do so at their own risk. Our society is increasingly intolerant of discipline in any form and increasingly tolerant of bad behavior in children. What you may view as punishment of a child within the bounds of moderation and reason may be viewed by a judge or jury as a criminal assault. If you or someone you love are facing a charge related to spanking or disciplining a child, contact us right away. We understand this complex area of law and are ready to fight for you!

Do juveniles convicted of sex crimes become registered sex offenders?

Shawn Cline — Tue, 06 Mar 2012 14:30:00 GMT

I frequently represent juveniles accused of sexual offenses of various kinds, from the slightest inappropriate touching to the most serious felony offenses. Invariably, the juvenile and the parents are concerned about the possibility mandatory sex offender registration. This is a legitimate concern, as sex offender registration is often a life long stigma that prevents one from obtaining work and can substantially limit housing options. In addition, the registry is readily accessible to the general public, thereby creating a sense of perpetual ridicule and shame in the community. Fair or not, having one's name placed on the sex offender registry is a life altering event.
The good news is that most juvenile charges are handled in the Juvenile and Domestic Relations Court, which usually means that registration is not required, even for conviction of an offense that would otherwise require registration pursuant to Virginia Code §9.1.902. However, many juvenile felony offenses are certified to the adult circuit court through the provisions of Virginia Code §16.1-269.1. This code section allows the Commonwealth's Attorney to request a hearing in the Juvenile and Domestic Relations Court for any minor who is at least 14 years old to have the matter certified to the Circuit Court, where the minor is treated as an adult offender. Pursuant to Virginia Code §9.1-901, any juvenile convicted of an offense in Circuit Court which would require registration is required to register as a sex offender. In addition, the Commonwealth's Attorney can file a motion to have any charge for which registration would be required of an adult trigger registration of a juvenile where the minor is at least 13 years old. The Juvenile and Domestic Relations Court would rule on the issue of registration after the motion is filed.
The bottom line is that some juvenile offenses can result in a lifetime of sex offender registration. This must be taken into consideration in addressing any sexual allegation against a minor. If you or a child you care about are facing these types of charges, call us right away. We will sit down and discuss you specific situation and determine the best course of action.

Brandishing a firearm charges in Virginia

Shawn Cline — Mon, 27 Feb 2012 18:57:00 GMT

I frequently have clients come to my office facing charges of brandishing firearm. Usually, these individuals are lawfully carrying a firearm, and find themselves the victim of malicious prosecution at the hands of private citizens who claim to have been threatened by the presence of the firearm. Virginia Code §18.2-282 makes it a Class 1 misdemeanor to "point, hold, or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such a manner as to reasonably induce fear in the mind of another..." The penalties become far more serious if the offense occurs on or within 1000 feet of a school, wherein it is a Class 6 felony, punishable by up to 5 years in the penitentiary. This code section certainly serves a legitimate purpose, but many Virginians elect to lawfully carry their firearms openly, which can be misconstrued as a threatening gesture.
The ultimate question is whether the manner of carrying the firearm could reasonably induce fear in the mind of another. That is not to say whether the most timid individual conceivable would have been frightened by the manner of brandishing, but whether a reasonable person would have felt threatened. It is not a defense to establish that the firearm was not loaded, or was not functional at all, as the individual observing the firearm would have no way of knowing that. One could easily be frightened by an unloaded pistol, as it looks the same as one that is loaded.
If you or someone you know is facing a charge of brandishing a firearm in Virginia, contact our office right away. These charges can be dealt with effectively. We own guns too, and respect your right to carry them!

What will a DUI do for my insurance? What is an FR-44?

Shawn Cline — Tue, 10 Jan 2012 21:32:00 GMT

When I meet with a client facing a DUI charge, they are typically worried most about the possibility of jail time. The reality is that for routine misdemeanor DUI charges, jail time is typically just a few days, and sometimes is suspended altogether. There are more lasting effects from a DUI conviction, however, particularly in the area of insurance premiums. The reality is that many insurance carriers will simply drop coverage for an individual convicted of DUI. This will depend largely upon your prior driving history, as well as factors such as age and employment.
Virginia is also one of a handful of states that requires additional minimum coverage for individuals convicted of DUI. Pursuant to Virginia Code §46.2-472, every motorist in Virginia is required to carry insurance of at least $25,000 insurance for bodily injury, $50,000 for bodily injury to two or more persons, and $20,000 for property damage. These coverage levels are actually fairly low, and most motorists carry significantly better coverage. However, Virginia Code §46.2-316 mandates that those convicted of DUI are required to carry at least double the basic coverage mandated in §46.2-316. To facilitate this, individuals convicted of DUI in Virginia must complete what is called an FR-44 Financial Responsibility Certification. This form essentially states that the individual is carrying insurance commensurate with the requirements for those convicted of DUI.
The bottom line is that most people fail to see the forest for the trees when the look at a DUI charge. They find themselves so terrified of the prospect of a couple of days in jail that they fail to appreciate some of the other more permanent effects of a conviction. Months and even years later, individuals are not concerned about having spent a few hours or days in jail, but they are greatly concerned about the staggering insurance premiums that follow the conviction.
There are countless reasons to aggressively fight a DUI charge. Insurance is just one of them. If you are facing a DUI charge in Virginia, contact us right away. We are here to help!

Unlawful filming of another? What is this charge?

Shawn Cline — Thu, 22 Dec 2011 19:33:00 GMT

Like most states, Virginia makes it a crime to videotape or photograph an individual without their knowledge while they are naked or in some state of undress. While there are numerous exceptions to this rule, and it can be difficult for presecutors to prove, the penalties for conviction are quite severe. Virginia Code §18.2-386.1 makes it unlawful for any person to "knowingly and intentionally videotape, photograph, or film an nonconsenting person" where that person is nude, clothed only in underwear, or in a condition exposing genitals, buttocks, or the female breast. This law applies in a "restroom, dressing-room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location". For the law to apply, the person filmed must have a "reasonable expectation of privacy" at the time of filming. Violation of this statute is a Class 1 misdemeanor punishable by up to 12 months in jail and a fine of up to $2,500. However, if the person filmed or photographed is under 18 years of age, the charge is a Class 6 felony, punishable by up to 5 years in the penitentiary. Regardless of the degree, a third conviction will result in mandatory sex offender registration.
Obviously, this is an extremely serious charge, but there is much to be done in defending this allegation. First and foremost, the filming must have been non-consensual at the time of filming for the statute to apply. Many people who are willing participants in videotaping of sexual acts have second thoughts later and wish they hadn't participated. But the issue is whether the individual was fine with being filmed at the time the film was taken, not whether they regretted it later. Secondly, if the person does not have a reasonable expectation of privacy this section does not apply. For example, a person intentionally exposing themselves in public who is photographed without their knowledge or consent while doing so is not protected by this statute; and those who photograph or film such acts are not subject to prosecution. Like any case involving photography or video, there is always an issue of proving who took the video, and whether that person did so "knowingly and intentionally".
The bottom line is that this is an exceedingly serious charge, and one that many people simply are not aware of. People think that they are free to videotape and record whatever they wish within their own homes, but this simply is not the case. With the proliferation of cell phones and computers that can produce clandestine recordings with relative ease, there is more and more of this sort of thing going on.
If you are facing this charge, you must contact an experienced criminal defense attorney. Do not delay, as much can be done in the initial stages to deal with this offense. Contact us today, we are here to help!

What laws apply to hit and run cases in Virginia?

Shawn Cline — Wed, 14 Dec 2011 15:33:00 GMT

Hit and run cases are fairly common in any criminal and traffic practice. Virginia has created a complex series of statutes governing the various reporting responsibilities of drivers and passengers involved in accidents. The primary statute is Virginia Code §46.2-894, which provides in essence that the driver of a vehicle involved in an accident involving attended property which results in death, injury, or property damage shall "forthwith" report such accident to law enforcement or to the occupants of the other vehicle. In addition, the driver must render assistance as required by the circumstances in the event of injury. Where a driver is unable to comply because of his own injuries, he must do so "as soon as reasonably possible". Violation of this section is a Class 5 felony if the accident results in death, injury, or damages in excess of $1,000. If the accident only results in damages less than $1,000 (and no injury), the person is guilty of a Class 1 misdemeanor. Given the nature of cars today, it is fairly rare to have an accident involving damages of less than $1,000, so these charges are very often felonies.
The duty to report is not limited to the driver, as Virginia Code §46.2-895 requires that where the driver fails to make a report, every occupant of the vehicle 16 years of age or older has a duty to report the accident to law enforcement within 24 hours. Failure to comply is a Class 6 felony if the accident resulted in death or injury. Otherwise this violation is a Class 1 misdemeanor.
Pursuant to Virginia Code §46.2-896, where the driver strikes an unattended vehicle or property he has an obligation to make "reasonable effort" to locate the owner, and failing to do so, shall leave a note identifying himself to the owner. In addition, he must report the accident in writing to law enforcement within 24 hours. Violation of this statute is punished as in §46.2-895.
All of these code sections and reporting requirements apply on both public and private property. These types of accidents often occur in private parking lots, but the same reporting requirements apply.
Depending upon the circumstances, hit and run in Virginia can carry the possibility of lengthy prison time. Regardless of the circumstances, hit and run charges can have a detrimental effect on your record. These are criminal, not traffic, offenses, and for that reason they should not be treated lightly by a defendant. Often these cases are assigned to top prosecutors within the Commonwealth Attorney's office, so proceeding without an experienced attorney of your own is perilous, if not foolish.
If you have been charged with hit and run, contact our office right away. There is much that can be done to address these charges. We will sit down with you and discuss the best avenues of defense based upon your specific case.

Facing marijuana charges in Virginia?

Shawn Cline — Thu, 01 Dec 2011 16:02:00 GMT

Even as we see the governors of other states petitioning the Drug Enforcement Agency to reclassify marijuana as a Schedule II controlled substance, which would allow doctors to prescribe it to patients in the 16 states with medical marijuana statutes on the books without risking federal prosecution; Virginia continues to be as aggressive as ever in the prosecution of simple possession of marijuana. Virginia is one of the most conservative states in the nation, so it's likely that the growing national trend toward decriminalizing (and perhaps even legalizing) marijuana will be felt here well after the majority of states have adopted more progressive approaches to marijuana.
That's the bad news for those of you in Virginia who use marijuana. The good news is that possession cases are often difficult for the Commonwealth's Attorney to prove. There are countless avenues of attack for an aggressive criminal defense attorney in dealing with these charges. First and foremost, "possession" is actually fairly hard prove. Just reading the statute, you can see that mere ownership presence in a residence or vehicle wherein marijuana is discovered does not create any presumption of possession. Individuals borrow vehicles, and even borrow clothing that belongs to others, so there are countless reasonable explanations for the presence of marijuana in one's vicinity. The Commonwealth will usually have to rely upon statements by the defendant in these types of cases to establish possession. The issue then becomes whether the individual was entitled to a Miranda rights advisement, and if so, whether such an advisement was given. This is a complicated legal question that goes far beyond a simple determination of whether the individual was under arrest.
Another challenge for the prosecution is proving whether the substance was in fact marijuana. While there is a statute that authorizes testimony of field testing by any law enforcement officer to determine the chemical makeup of marijuana, field testing is frequently not done. Where this testing is not done, the sample must be packaged and sent to the Department of Forensic Science in Richmond for chemical testing. There are countless ways to attack the handling, mailing, testing, and reporting of these results. Many inexperienced lawyers will simply concede that the plant substance is marijuana, thereby foreclosing one of the critical avenues of defense. Don't let this happend to you!
The bottom line is that Virginia will continue to prosecute and lock people up for smoking marijuana, long after more progressive states have seen fit to treat marijuana as a medical issue. In the meantime, if you are charged with possession of marijuana in Virginia, you must contact an aggressive and experienced criminal defense attorney. Do not accept that your future has to be ruined by this charge! Call us today!

Is today really the "National Day of Johns"?

Shawn Cline — Tue, 11 Oct 2011 19:34:00 GMT

Many of you probably saw the article in the Daily Press today commemorating the "National Day of Johns" in Newport News. "Commemorating" might not be the right word, unless your idea of a commemoration is to arrest 27 individuals suspected of soliciting prostitutes and post their pictures online before they are tried or convicted of anything. But that is how Newport News chose to celebrate this day. It's interesting that a google search for "National Day of Johns" quickly reveals a rather local flavor to this "national" event.  In fact, there is not one reference to the festivities outside of Newport News anywhere on the world wide web.  That being said, it's an important day for these 27 men who have had their names and faces posted all over the internet without trial or the presentation of a single prosecution witness.
I have spoken in several previous posts about prostitution charges in Hampton Roads, and will spend some time today discussing solicitation of a prostitute, as Newport News has chosen to make the topic particularly relevant today.  Virginia Code §18.2-346 makes it a crime to "offer money or its equivalent to another for the purpose of engaging in sexual acts as enumerated above [ in subparagraph (a) of the statute] and thereafter do any substantial act in furtherance thereof".  The "sexual acts" in question are adultery, fornication, cunnilingus, fellatio, anilingus, anal intercourse, as well as animate and inanimate object sexual penetration.
Solicitation charges are Class 1 misdemeanors, carrying the possibility of up to a year in jail and a fine of up to $2,500. The effect on one's family and employment go far beyond that. That being said, these charges can and should be aggressively attacked. There is a great deal of sexual conduct that is not covered by the statute.  Similarly, it is often difficult to prove the precise nature of an agreement. The mere existence of an agreement is not enough; the statute also requires that the individual commit a "substantial act in furtherance thereof" after the agreement is reached (not before).
The bottom line is that law enforcement aggressively prosecutes prostitution charges in Newport News, and throughout Hampton Roads. If you have been charged with soliciting a prostitute, do not delay, contact us today. We are here to fight for you!

Can the police search my car when I'm stopped?

Shawn Cline — Wed, 28 Sep 2011 14:17:00 GMT

I can't tell you how common it is for clients to come to me with all sorts of charges that emerged from a search of their automobiles. There is almost a limitless variety of contraband that people can and do conceal in their cars as they commute from place to place. From narcotics, to concealed weapons, to illegal alcohol; police officers routinely find these items through vehicle searches.
Automobile searches are as complicated a field of criminal law as any you will find, and the law is constantly changing with various state and federal cases addressing specific fact patters and slight variations on the existing law. But certain points are well settled, and this posting will provide a cursory overview. Remember though, that there is no substitute for sitting down with an experienced criminal defense lawyer to discuss your specific case.
Code §19.2-59 provides that "No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer." Obviously, an automobile would qualify as a "thing", so it would appear that your car cannot be searched without a warrant. Unfortunately, courts have carved out an exception to the warrant requirement, which is known broadly enough as the "automobile exception". The cases that form the bedrock of this exception have come in the last 50 years in response to the proliferation of automobiles as the primary means of transit in this country.
So what is the "automobile exception", and how broad is it? Well, first and foremost, officers always have a right to seize contraband items that are in "plain view". So if an officer walks up to your vehicle and sees narcotics through the window, he can seize them (and take other actions, which will be discussed later).
But even if an officer cannot see the contraband with his own eyes, he can search an automobile if there is probable cause that the vehicle contains evidence of criminal activity (see United States v. Ross, 456 U.S. 798). So if the police pull you over and smell marijuana emanating from the vehicle, they can search any part of the vehicle where evidence of the marijuana might be found.
In addition, even where there is no probable cause that the vehicle contains evidence of a crime, police may search any part of the vehicle within immediate control of an individual being placed under arrest. (see Michigan v. Long, 463 U.S. 1042). This is ostensibly for officer safety. By way of example, this would allow a search of the entire driver compartment of a vehicle after removing and arresting the driver. The same would apply for a passenger being arrested. The discovery of contraband items in this limited search would probably constitute probable cause to search the entire vehicle. It is important to note, however, that the search incident to arrest must be based upon a charge which would actually result in arrest. For example, an officer cannot stop someone for speeding, place them under arrest, and thereby gain authority to search the drivers compartment of the vehicle. This is simply because there is no reason to arrest someone for speeding.
One type of search that is always allowed is a consent search; in other words, where the driver voluntarily allows the officers to search the vehicle. The key is that the consent must be voluntary. Consent is not voluntary if the officers gain consent through unlawful coercion. For example, if a vehicle is stopped for speeding, the officers are allowed to ask permission to search the vehicle. If the driver says no, however, the officers cannot detain the vehicle while waiting for a drug dog, with the hopes that the dog will give probable cause to search. This is because the duration of the stop cannot exceed that which would be reasonable to ascertain the nature of the violation (e.g. speeding), and write the appropriate summons. If, however, the drug dog could arrive within the reasonable time for issuance of such a summons, then the dog would be allowed to sniff around the car while the other officer issues the summons. The key is that the vehicle cannot be held longer than reasonable under the circumstances of the underlying stop.
Similarly, the officers cannot tell the driver that if he does not consent to a search, the vehicle will be held until the drug dog arrives, because it would not be legal to hold the vehicle for that period of time. Under these circumstances, the driver's consent to the search would probably be viewed as not voluntary, and therefore not valid.
One of the most glaring elements of the automobile exception to the search warrant are "inventory searches" of vehicles taken into police custody by virtue of being towed. These inventories are ostensibly for the protection of the vehicle owner so that no personal items within the vehicle are lost or stolen at impound. But inventory searches are exceedingly thorough, and require no probable cause that any contraband is within the automobile.
A high percentage of the contraband that ultimately finds its way into criminal proceedings comes from automobile stops. If you or someone you love is the subject of a criminal charge, and the basis of the charge was a stop and search of an automobile, please call our office right away. There is much to be done in addressing an automobile search. While courts have tried hard to limit the application of the search warrant requirement, the Constitution is still on your side.

My BAC is over .08, I guess I have to plead guilty...

Shawn Cline — Sat, 24 Sep 2011 13:44:00 GMT

Not true!
I can't tell you how often I hear clients who feel absolutely defeated by the fact that they were stopped for DUI and produced a breathalyzer result over .08. "Over the limit, under arrest", right? Well, being over the limit can certainly get you arrested, but there is a long road between arrest and conviction, and an aggressive and experienced DUI attorney knows how to turn that road into a treacherous minefield for the prosecution.
First and foremost, unlike some states, Virginia does not have what is called a "per se" DUI statute. The best way to compare a "per se" DUI statute to Virginia's DUI statute is by example. As it turns out, North Carolina has a "per se" DUI statute. §20-138.1 of the General Statutes of North Carolina provides that a motorist shall be guilty of driving under the influence where "he has, at any relevant time after driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration."
Virginia's statute is different, however, and has been interpreted by the Virginia Supreme Court to mean that the result of a breathalyzer or blood test only creates what is called a "permissive inference" that the blood alcohol at the time of the breathalyzer was the same as the blood alcohol at the time of driving. This seems like a minor point, but cases are won and lost on minor points.
What this really means to the DUI practitioner is that in North Carolina, once the motorist submits a breathalyzer over 0.08, the case is essentially over (unless there was no reason to stop the vehicle in the first place, etc.).
However, in Virginia, that BAC over 0.08 is only indicative of the BAC at the time of the breath sample, not necessarily at the time of operation of the vehicle. This is a critical distinction, because the only BAC that matters in Virginia is the BAC at the time of operation of the vehicle.
This is where things get interesting; and where things get scientific. The science of blood alcohol is far more complex than can be explored in this posting. Suffice it to say that blood alcohol is a constantly changing variable. It changes with time, with alcohol intake, with food intake, with metabolism, and with countless other factors. If you have ever consumed alcohol, you know that the effects are not felt immediately. Think about it like this: if you take two bottles of beer and drink them as quickly as possible, you do not feel the effects right away. But perhaps 30 minutes later you will begin to feel some measure of intoxication. Why is there a delay? Shouldn't you feel the aclohol as soon as it's in your body? The answer is that the effects of intoxication are not felt until the alcohol actually gets into the brain, and to get there, it must first process through the digestive system, through the lining of the stomach and into the blood stream, only then can it flow into the brain to affect the central nervous system. This takes time. How much time? Well, it varies from person to person, and upon other variables such as food intake, speed and volume of alcohol intake, fatigue, metabolism, etc.
The reason why this is so important is that it is entirely possible for an individual to consume some amount of alcohol and then operate a vehicle with a BAC that is slowly rising, but never exceeding 0.08. This individual could be stopped on suspicion of DUI with a BAC of say, 0.07 (but still rising). By the time they get to the police station, that BAC could be drastically higher (and well above 0.08). In North Carolina (because of the "per se" statute), it makes no difference that the BAC at the time of the breathalyzer was higher than it was at the time of operation of the vehicle. But in Virginia, a skilled DUI attorney can demonstrate to the judge or jury through scientific evidence that the BAC could have been much lower at the time of operation of the vehicle than it was at the time of the breathalyzer; thereby rendering the breathalyzer result essentially meaningless. This is where things like performance on the field sobriety tests and testimony of witnesses to the individual's drinking can be absolutely essential, along with an understanding of the science of blood alcohol and it's effect upon the central nervous system.
The bottom line is that DUI litigation is a tremendously complicated field. If you are the kind of person who can't have a DUI on your record, you need to contact our office. Our rates are reasonable, but we know the law and the science of DUIs, and can apply both to winning your case!

What can be done on a prostitution or solicitation charge?

Shawn Cline — Wed, 21 Sep 2011 17:28:00 GMT

Prostitution and soliciting a prostitute are some of the most common charges in this area. Local law enforcement agencies conduct stings using websites like backpage.com to catch individuals involved in these types of transactions. Perhaps it is because of the strong military presence in this area, bringing tens of thousands of young people far away from their homes, but the sex industry generates tremendous revenue in Hampton Roads; and considerable attention from law enforcement. The stakes are high, as solicitation and prostitution are both Class 1 misdemeanors, carrying up to a year in jail and a $2,500 fine. And unlike many other misdemeanor offenses, prosecutors in Virginia are usually looking for jail time when the charge is prostitution or solicitation. This is particularly true where the individual has previously been convicted of the same offense.
Virginia Code §18.2-346 criminalizes the commission of adultery, fornication, cunnilingus, fellatio, anilingus, object sexual penetration, or anal intercourse for money or some other thing of value. In addition, the Code criminalizes the offer to commit any of these acts in exchange for money or something of value where the individual "thereafter does any substantial act in furtherance thereof". This language is critical, because in certain cases an agreement will be reached regarding the exchange of sexual services for money, but the individual will be arrested prior to doing any substantial act in furtherance of the agreement. In addition, from time to time police officers will arrest an individual for engaging in action that simply is not criminalized by the statute. Even where an individual has engaged in criminalized conduct, there are issues to be explored, such as the lawfulness of the arrest, as well as the possibility of entrapment. These defenses are highly technical, and should only be presented by an experienced criminal defense attorney.
These types of charges carry not only the possibility of jail time and fines, but also the tremendous stigma that comes from such a conviction. Many employers will terminate and not thereafter hire individuals convicted of this offense. This is particularly true for those in the military. The ramifications for those who are married or in relationships are obvious and usually swift. The bottom line is that these charges must be defended, and aggressively. Contact us today, we are ready to help you!

How bad are federal sentencing guidelines in child pornography cases?

Shawn Cline — Fri, 16 Sep 2011 14:33:00 GMT

This is kind of a loaded question, and the answer is "terrible". I'll explain why, but the take away from this posting is that if you are facing federal child pornography charges, your long-term liberty is at considerable risk.
Let's start by understanding sentencing guidelines.  Felony sentencing in Virginia, and Class A misdemeanor and all felony sentencing in the federal courts, are handled through what are called "sentencing guidelines".  Prior to 1995 in Virginia and prior to 1984 in the federal system, judges were bound only by statutory maximums and minimums in determining sentences. Since few charges carry mandatory minimums, judges had tremendous discretion in determining sentences. Judges could consider the nature of the offense and the offender's characteristics in deciding a sentence that suited the particular crime. This degree of judicial autonomy was a time honored part of our jurisprudence, dating back to the Magna Carta in England.  This system wasn't perfect, and certainly some judges would treat the same offense differently then others, but it was generally accepted as the best option available.
This all changed with the implementation of federal sentencing guidelines in the Sentencing Reform Act of 1984. This act created the U.S. Sentencing Commission and mandated federal guidelines which would take into consideration aggravating and mitigating factors about the offense and the offender, and thereby produce a sentence range. Initially, these guidelines were mandatory, in other words, the judge could not divert upward or downward from the guidelines. However, the Supreme Court held in 2005 in United States v. Booker that the guidelines were only discretionary, and that while they might provide guidance to the sentencing judge, he was able to depart from them in appropriate cases.
Today virtually ever state has some form of sentencing guidelines, and Virginia is no exception.
The basic premise is to create a more fair criminal justice system by fostering consistency and predictability in sentencing. However, in practical terms, sentencing in federal child pornography possession charges has become consistently outrageous and predictably draconian.  I have handled child pornography cases in Virginia and federal courts, and have seen federal guidelines for the same child pornography possession offense calculated at as much as ten times the recommended state guidelines.  I have also handled child pornography cases in military courts, where there are no sentencing guidelines at all.  Interestingly enough, it has been my experience that military courts typically adjudge the most lenient sentences in these cases, perhaps because the court can consider all the aggravating and mitigating factors without being hamstrung by sentencing guidelines.
There is no question though that federal child pornography possession guidelines are the most severe.
Here's why: Federal sentencing guidelines were designed to be promulgated by the U.S. Sentencing Commission based upon data collected from previous sentences. In other words, the sentencing guidelines did not come directly from Congress, but rather from the Sentencing Commission which was chartered by Congress to produce carefully considered guidelines. However, largely as a result of political pressure, Congress has on numerous occasions directly amended the sentencing guidelines for possession of child pornography to make them considerably worse; all without considering input from the Sentencing Commission. Interestingly, possession of child pornography is the only offense for which Congress has directly amended the guidelines. All other guidelines have been promulgated by the Sentencing Commission, and not directly from Congress.
Predictably, Congress has taken the politically expedient route of making the guidelines for possession of child pornography unbelievably severe. So severe in fact, that in many cases the sentencing guidelines for simple possession of child pornography in the federal system are more severe than the guidelines for having actually engaged in the sexual abuse depicted in the pornography! This result defies belief, but it is a product of Congressional meddling in this complex field, as well as the morbid popularity of shows like "To Catch a Predator".
Here's what Congress has done: It has more than doubled the base offense level for possession of child pornography from 10 in 1991 to 22 in 2011. On top of that, they have added a 2 point increase for use of a computer (virtually all child pornography exchange today occurs online, so this almost always applies). They have added a 5 point increase for distributing images with the "expectation of something of value" (receiving an image from someone else on a peer to peer network qualifies for this increase, so this increase almost always applies). There is a 4 level increase for images depicting bondage or violence, and another 5 level increase for possession of more than 600 images. Because this material is now distributed primarily online, an individual can assemble a collection of more than 600 images in a matter of minutes, and almost invariably this collection will include images depicting bondage or violence, regardless of whether the individual is seeking this type of material. Further, the individual may not have ever viewed or even have been aware of the content of these images, he will still be accountable for these increases in offense level.
The result of this Congressional meddling is that most federal possession of child pornography cases will produce guidelines at or near the statutory maximum of 20 years.
Meanwhile, state guidelines remain considerably more reasonable, although much of that will depend upon how the prosecutor decides to charge the case. This is because each image can constitute a separate charge, so the prosecutor can decide how many charges he wishes to bring based upon the volume of the collection.
If you or someone you love is facing a possession of child pornography charge, contact us right away. Time is of the essence in developing a defense in these types of cases. We handle both state and federal child pornography cases, and are ready to defend you!

What is the Virginia Sex Offender Registry?

Shawn Cline — Wed, 14 Sep 2011 18:31:00 GMT

One of the most enduring effects of a conviction for a sex crime in Virginia, and really throughout the entire country, is the sex offender registration that follows. Virginia, like most states, maintains an online database of individuals who have been convicted of certain sexual offenses. The registry includes the individual's home and work addresses, their picture, as well as the convictions that triggered registration. Citizens can search this registry with ease, using zip codes as a search term. The registry is maintained by the Virginia State Police, and according to the website, its purpose is to "make information more easily available and accessible, not to warn citizens about any specific individual." That is all well and good, but the practical effect is that individuals on the registry who my have little to no likelihood to reoffend are forced to endure a lifetime of ridicule and harassment. And you can't avoid this scorn simply by leaving the state, as each state requires registration regardless of where the conviction occurred.
Certain offenses trigger registration, and registration is typically a lifetime requirement. However, depending upon the nature of the offense, an individual may petition the Circuit Court for removal from the registry after either 15 or 25 years.
Sex offender registries in Virginia and throughout the country are political gold for politicians. Any measure that seeks to make life more difficult for people convicted of these sorts of offenses is sure to receive widespread approval from voters. What these people fail to understand is that the risk of reoffending in most cases is quite low. Meanwhile, individuals on these registries find it impossible to secure employment and maintain any degree of normalcy.
If you or someone you love is facing a sex charge, you must contact an experienced criminal defense attorney. We handle every type of sex crime, from possession of child pornography to the most serious crimes involving physical contact with minors. Please call, we are here to help.

Assault on a family member in Virginia

Shawn Cline — Mon, 22 Aug 2011 17:07:00 GMT

Assault and battery on a family member in violation of Virginia Code §18.2-57.2 is one of the most common offenses that I see in my office. Very often, the parties have resolved their differences, and neither wants to go forward on the matter. The problem is that almost every local jurisdiction has a "no drop" policy for assault on a family member. What this means is that regardless of the parties' wishes, the case is going forward, and one side will be testifying against the other. For this reason, it is wise to hire an experienced criminal defense attorney if you or someone you love has been charged with assault on a family member. The repercussions of a conviction for this offense are drastic and far reaching. For one thing, the charge is a class 1 misdemeanor, carrying with it the possibility of up to one year in jail, along with a $2,500 fine. Unlike many other class 1 misdemeanors which rarely result in jail time, judges routinely lock defendants up for assault on a family member. In addition, by virtue of a federal law known as the Lautenberg Amendment, anyone convicted of a crime of domestic violence is forever prohibited from carrying a firearm. Obviously this affects sportsmen and gun enthusiasts, but more importantly in the Hampton Roads area, it has a terrible impact upon military members. As a former member of the military, I remember qualifying annually (and even making expert once!) on an M-9. Almost every servicemember, regardless of rate or MOS, has a similar requirement. If you are convicted of assault on a family member, it is a federal offense to handle that weapon, even though qualifying on the weapon is a requirement of your military duties. Worse yet, there is no military exception to this law! The bottom line is that if you are convicted of assault on a military member, and you are on active duty or in the reserves, you will more than likely be discharged. The takeaway from all of this is that these charges must be fought, regardless of whether you have worked out your issues with your spouse or significant other. And to do so, you need to hire an aggressive and experienced attorney. Call us today, we are ready to fight for you!