Recent Blog Posts in November 2010 |
| November 18, 2010 |
| Is there a difference between DUI and DWI? |
| Posted By Shawn Cline |
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I get this question fairly regularly from DUI clients. The short answer is that there is no difference, and that the state of Virginia does not have an offense of "DWI". In some states DWI is a less serious version of DUI, but that is not the case in Virginia.
That being said, there are many levels of severity of DUI in Virginia. For purposes of this post, I will focus only on those which do not involve death or bodily injury to another party. Obviously these are the most serious types of DUI, but thankfully they are the most rare. That being said, if you are facing such a serious charge, contact us right away. We can help.
Virginia Code 18.2-270 outlines the penalties for DUI. There are two ways that DUI penalties can be elevated. One is based upon the driver's blood alcohol content, or BAC. The other is based upon recidivism, or the number of times that the individual has been convicted previously of DUI.
The least severe form of DUI involves a BAC between .08 and .14 for an individual who has not been convicted previously of DUI. There's nothing light about these penalties though; even this offense carries the possibility of up to a year in jail, a fine of up to $2,500, installation of an ignition interlock on your vehicle, enrollment in alcohol counseling, a one year drivers license revocation, plus court costs!
Things just get worse from there. A violation with a BAC between .15 and .19 means a mandatory minimum of 5 days in jail, which the judge cannot suspend. A violation with a BAC over .20 means a 10 day mandatory minimum jail term. Keep in mind, these are the minimums, and judges frequently go well over these amounts.
Where things really get ugly is for repeat offenders. A second DUI within 5 to 10 years carries a mandatory minimum of 10 days in jail, while a second DUI within 5 years carries a mandatory minimum of 20 days in jail. These are in addition to any mandatory minimums based upon an elevated BAC.
A third offense DUI is a felony, and carries a 90 day mandatory minimum. The stakes continue to escalate after that, with a fourth or subsequent offense carrying a mandatory one year prison term. Felony DUI will result in at a minimum a three year drivers license suspension with no restricted license, and a minimum of five years before such a driver could apply for an unrestricted license.
The bottom line is that the term "DWI" has no meaning in Virginia, but there is a wide range of severity in terms of the types of DUI charges that appear in Virginia courts. If you are charged with a DUI in Virginia, contact our office. We give every case our greatest care and attention. Do not assume that because you were stopped and arrested that the punishments I have talked about are unavoidable. There is much to be done in defending a DUI... let us get started on defending yours! |
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| November 17, 2010 |
| What does immunity mean? |
| Posted By Shawn Cline |
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I have represented numerous individuals over the years who have been offered one form of immunity or another by the prosecution. Normally the situation goes something like this: My client is alleged to have been somehow involved in a criminal enterprise that included one or more accomplices. In an effort to secure a conviction against one or more other parties, my client is offered immunity to testify against the other individuals.
Sounds simple, right? Not so much. The reality is that there are two different types of immunity, and certain offers of immunity are far more favorable than others.
The most common form of immunity is called "testimonial immunity". Testimonial immunity means that nothing that you testify to after the grant of immunity may be used against you in your own trial. This is commonly used in cases of co-conspirators. Basically it is a way to get around the witness's right to assert their 5th Amendment privilege to not say anything at all. The prosecution assures them that nothing that they testify to will be used against them in any way. The problem with testimonial immunity is that it does not prevent the government from prosecuting the individual for the offenses that they are testifying about; it simply means that they have to prove the case without using any of the statements made by the individual after the grant of testimonial immunity.
This sounds fine, but there may be other ways for the government to prove it's case against you. For example, you may have already confessed prior to the grant of immunity, in which case that confession could still be used against you. Or there may be other witnesses or forensic evidence that can prove the case without using your testimony. So testimonial immunity is not all it's cracked up to be.
On the other hand, "transactional immunity" is quite a gift. Transactional immunity means that not only can the testimony not be used against them, but the individual can't be prosecuted at all for the subject offenses. Transactional immunity functions as an absolute bar to prosecution for any offenses for which a witness is called to testify.
If you are facing charges, or if you have been offered some arrangement for immunity and have not consulted with a lawyer, call our office right now! We can help you navigate this complex area of law. Your freedom may depend upon the quality of counsel you receive! |
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| November 12, 2010 |
| What Happens if I Don't Take a Breathalyzer? |
| Posted By Shawn Cline |
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The Virginia Criminal Code 18.2-268.3 establishes penalties for failure to submit to a breathalyzer after a DUI arrest. Operating a motor vehicle on a "highway" (which includes any public road), constitutes consent to to have samples of breath, blood, or both taken from a suspect arrested for DUI. Therefore, a driver lawfully arrested for DUI in Virginia must submit to a breathalyzer, or he or she is in violation of 18.2-268.3. The penalties for such violation vary depending upon the individual's DUI history. A first violation is a civil offense, resulting in a one year drivers license suspension. Unlike a DUI conviction, anyone convicted of improper refusal to submit to a breathalyzer is not eligible for a restricted drivers license. This means no driving, for any purpose for the next year; whereas someone convicted of DUI may be eligible for a restricted license that allows them to drive to work, school, and medical appointments. Anyone convicted of improper refusal who has within the previous 10 years been convicted of DUI or improper refusal is subject to a 3 year license suspension, again with no restricted license. This second offense also carries the possibility of jail time.
In addition, the fact that you do not submit to a breathalyzer does not mean that you will not be charged, and perhaps convicted, of DUI. The court will consider other evidence presented by the Commonwealth's Attorney for this purpose. For example, the officer will testify about how you were driving, how you did on the field sobriety tests (assuming that you consented to perform them), and his observations of your general demeanor and motor skills. So it is possible to be convicted of both improper refusal and DUI.
If you have been charged with DUI or with improper refusal, call us right now! We can help you navigate this complex area of law. We aggressively attack DUI charges, and are ready to defend yours! |
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| November 11, 2010 |
| But the Officer Didn't Even Read me my Rights! |
| Posted By Shawn Cline |
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Clients frequently tell me that the arresting officer did not read them their rights. While this always piques my interest, it is not always critical in the ultimate outcome of the case. We all watch television and movies, and through these media were are inundated with the idea that police officers have to read suspects their rights. This is true... sometimes. The rights we are talking about come from the case of Miranda v. Arizona, a 1966 Supreme Court case establishing the requirement that officers must advise a suspect of their rights to (a) remain silent, and (b) have counsel present at a custodial interrogation.
The reality is that rights advisements are only required for suspects who are "in custody" and being "interrogated". So how do law enforcement officers get around this requirement? Well, for starters, they may tell you before beginning an interview that "you are free to leave at any time". By saying this, you are no longer considered to be "in custody". Unfortunately, many people are so intimidated by their surroundings (police station, badges, guns, etc.) that they do not really feel free to leave, no matter what the officer says. Also, officers will often gather all the incriminating statements they need before placing someone under arrest. Then, after the arrest, they will not ask them any questions at all. I see this all the time. Individuals confess to committing crimes while they are not in custody, and then are upset that the officer did not read them their rights after the officer placed them under arrest. The officer did not read them their rights because he was done with his questioning before he arrested them! It's that simple. No rights advisement is required if no questions are asked. In fact, if a talkative suspect feels the need to spill the beans without being asked any questions at all, officers are not required to stop him for a rights advisement. The statement is treated as voluntary and can be used in court.
Miranda warnings are some of the most contentious areas of criminal law. Aggressive prosecutors and vote-seeking politicians have been eating away at this fundamental American right since 1966. Are you facing criminal charges where you made statements against your interest? Call us! We may be able to help! Miranda v. Arizona is your ally, let's sit down and see how it can be applied to your case. |
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| November 08, 2010 |
| Welcome to our Criminal Defense Blog |
| Posted By Hampton Roads Criminal Defense Attorney |
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| We are pleased to announce the launch of our Criminal Defense Blog. |
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| Continue reading "Welcome to our Criminal Defense Blog" » |
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