Recent Blog Posts in 2011 |
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| December 22, 2011 |
| Unlawful filming of another? What is this charge? |
| Posted By Shawn Cline |
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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! |
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| December 14, 2011 |
| What laws apply to hit and run cases in Virginia? |
| Posted By Shawn Cline |
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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. |
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| December 01, 2011 |
| Facing marijuana charges in Virginia? |
| Posted By Shawn Cline |
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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! |
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| October 11, 2011 |
| Is today really the "National Day of Johns"? |
| Posted By Shawn Cline |
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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!
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| September 28, 2011 |
| Can the police search my car when I'm stopped? |
| Posted By Shawn Cline |
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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. |
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| September 24, 2011 |
| My BAC is over .08, I guess I have to plead guilty... |
| Posted By Shawn Cline |
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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! |
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| September 21, 2011 |
| What can be done on a prostitution or solicitation charge? |
| Posted By Shawn Cline |
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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! |
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| September 16, 2011 |
| How bad are federal sentencing guidelines in child pornography cases? |
| Posted By Shawn Cline |
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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! |
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| September 14, 2011 |
| What is the Virginia Sex Offender Registry? |
| Posted By Shawn Cline |
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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. |
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| August 22, 2011 |
| Assault on a family member in Virginia |
| Posted By Shawn Cline |
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| 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! |
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| July 19, 2011 |
| What does "implied consent" mean for a DUI charge? |
| Posted By Shawn Cline |
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Usually the most powerful evidence that the prosecutor has in a DUI case is the breathalyzer result. This is rarely the only piece of evidence in a DUI case, but prosecutors rely heavily upon breathalyzer BAC (blood alcohol content) in the vast majority of cases. For this reason, the Virginia legislature has implemented Virginia Code Section 18.2-268.2, the Implied Consent Statute.
Essentially this statute provides that any person who operates a motor vehicle on a "highway" in the Commonwealth consents through such operation to have samples of their blood, breath, or both taken for a chemical analysis to determine the alcohol content in the blood. Unreasonable refusal to submit to a breath or blood test will result in a charge under 18.2-268.3 for refusal to take a breathalyzer.
There are a myriad of ways to attack the implied consent statute for those charged with unreasonable refusal, and there are a myriad of ways to use the implied consent statute to suppress a blood or breath result in a DUI case. One of the most glaring deficiencies in the implied consent statute is that it only applies on "highways". This does not mean that it is limited to interstates, or even to major streets; however, it does not include private property, and it does not include parking lots. A motorist who is stopped for DUI in a parking lot can be convicted of DUI, but operating a motor vehicle in a parking lot does not invoke the implied consent statute, because a parking lot is not a highway.
The implied consent statute also only applies if the defendant is arrested within 3 hours of the operation of the vehicle. Further, the implied consent statute applies only after a lawful arrest. Every DUI charge involving a breathalyzer result must be examined closely to find the possible defects in police conduct that can result in suppression of the result.
In Virginia, unreasonable refusal to submit to a breathalyzer results in a 1 year suspension of drivers license, pursuant to 18.2-268.3. The code specifically prohibits issuance of a restricted drivers license during this one year period. The result is that an individual convicted of unreasonable refusal cannot operate a motor vehicle anywhere for the next year. This is a serious sanction, and in many ways is worse than the penalties for the DUI itself!
The situation is different for individuals stopped for DUI on federal property (such as any of the military installations in Hampton Roads). Federal law provides for implied consent under 18 U.S.C. 3118, but it is not nearly as expansive (or as harsh), as the corresponding state code. The difference arises because licensure of drivers is a state function; in other words, we do not get our drivers licenses from the federal government, so the federal government does not control whether or not Americans possess a drivers license. Because of this, the only sanction for unreasonable refusal to provide a breath sample when arrested for DUI on federal property is loss of driving privileges on federal property for the next year (although the code also provides that the fact that the individual refused the breathalyzer may be admitted as evidence against them at trial for the DUI itself).
The bottom line is that if you have been charged with DUI, either in state or federal court, you need to call our office for a free consultation. Whether you took a breathalyzer or not, the implied consent statute can be used under the right circumstances as a tool against the government. The consultation is free, so let's sit down and discuss your case. |
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| July 12, 2011 |
| What are Virginia child abuse laws? |
| Posted By Shawn Cline |
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I frequently meet with distraught parents who have been charged with child neglect or abuse. In most cases, these are loving parents who either lacked the skills and resources to effectively care for their children; or in many cases these are parents being accused of something they simply did not do. These parents and guardians are confused and scared, so it is important first and foremost to have an understanding of the Virginia Code as it relates to child abuse and neglect. The good news is that I am going to go over much of it in this article. The bad news is that it is still terribly complex (as you will no doubt see). The bottom line is that if you are facing any charge in Virginia relating to abuse or neglect of a child, you need to contact us right away. That being said, here is the rundown:
The Commonwealth's Attorney always has the liberty to charge crimes against children under the general statutes; be it Murder in any degree, assault and battery,
malicious wounding, or any of a myriad of
sexual abuse charges. These types of charges are discussed elsewhere on this website, so I will not go into them further here. Instead, I want to focus on the types of charges that are specifically directed at abuse and neglect of children.
The most serious child abuse charge is under Virginia Code Section 18.2-371.1, Abuse and Neglect of Children. Within this code section are two different offenses, the more serious is a class 4 felony, carrying up to 10 years in the penitentiary. The lesser offense is a class 6 felony, carrying up to 5 years in the penitentiary. Both offenses require that the accused be the "parent, guardian, or other person responsible for the care of a child under the age of 18". So you can see one possible defense right there, if you do not fit that definition under the law, you cannot be convicted of either offense (although you may still be guilty of another offense, such as assault and battery). The code requires that the accused "willful act or omission or refusal to provide any necessary care... causes serious injury to the life or health of such child" to be guilty of the class 4 felony. The code defines "serious injury" as including, but not limited to "(1) disfigurement, (2) a fracture, (3) a severe burn or laceration, (4) mutilation, (5) maiming, (6) forced ingestion of dangerous substances, (7) life-threatening internal injuries." Unless the accused's act or failure to act directly causes one of these conditions or a comparable condition, they cannot be convicted of the class 4 felony.
That being said, the code allows for a lesser offense within the same statute for a class 6 felony. The code provides that any parent, guardian, etc. whose "willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life shall be guilty of a class 6 felony". As you can see, there is no actual injury required under this part of the code. As long as the responsible adult's conduct showed reckless disregard for the child's life, they can be convicted of this less severe (but still very serious) charge.
As you can see, there are two theories for conviction for both of these felony charges. One is a specific act, the other is a failure to act. In other words, it is not always a defense to say "I didn't do anything". The idea is that a responsible adult has an obligation to act under certain circumstances. Doing nothing is sometimes not acceptable. A good way of looking at this would be to think of a firearm in the home. A responsible parent ought to secure firearms in the home, particularly where the children are of an age where they may be curious but not yet capable of understanding the consequences of using a firearm. For this reason, a parent might be charged under one of these statutes for failure to secure a firearm if the result of such failure was the death of a third party at the hands of an armed child. This is just an example, and should not be considered as controlling or limiting in any way.
Cases involving neglect and abuse of children are not always felonies. In fact, in most child abuse and neglect cases emerge as misdemeanors. Code Section 18.2-371 is the basic Contributing to the Delinquency of a Minor statute in Virginia. This statute makes it a class 1 misdemeanor, punishable by up to 12 months in jail, for any person over 18 years of age who "willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected". This is still a serious offense, but far less serious than the felonies discussed previously. These cases typically involve a lack of supervision, or perhaps even active facilitation, on the part of an adult which causes a child to engage in illegal or dangerous conduct. These cases often involve allowing minors access to drugs or alcohol.
There is a final way in which these types of charges can be brought in Virginia, although it is rarely used. Within the Child Labor section of the code is Section 40.1-103, which prohibits any "person employing or having custody" of a child causing or permitting the life of the child to be endangered or the health of the child to be injured. Violation of this section is a class 6 felony, punishable by up to 5 years in prison. This is an unusual charge, given that it falls under the child labor prohibitions, but it is brought from time to time.
As you can see, there are a myriad of ways that Virginians can be charged with abuse or neglect of a child. These cases are exceedingly difficult, because invariably the parents or guardians love their children and the best for them. If you are facing these types of charges, do not wait... contact us right away. We are here to help!
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| June 20, 2011 |
| What are the possible penalties for child pornography charges? |
| Posted By Shawn Cline |
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Possession and distribution of child pornography are some of the most common felony charges that I deal with. Almost without exception, the individual was caught as part of a "catch a predator" type of sting, conducted by either federal or state law enforcement. Depending on the facts of the case, there is much that can be done to defend cases like these, particularly where the individual has not made a confession to law enforcement. When these stings are conducted, the law enforcement officers cannot see the subject of the sting, after all, the police are sitting on a computer somewhere far away from the subject of their investigation. Police rely on subpoenas for information such as the IP address of the subject computer, as well as the name of the host internet provider to attempt to identify who was using the computer when the alleged conduct took place.
These cases are extremely complex, and you must hire an attorney who understands computer forensics. Many very good lawyers are ill-suited to handle a child pornography case, simply because they do not understand the principles behind peer-to-peer networks, which are the primary means of transfer and receipt of child pornography in the internet age. But one thing is not complicated: the potential punishments for child pornography offenses. They are extremely harsh, across the board. Let's take a look.
It may seem patently unfair, but there is a tremendous difference between how child pornography charges are punished in the state versus federal systems. In Virginia, possession of child pornography under 18.2-374.1:1 is a Class 6 Felony, punishable by up to 5 years in the penitentiary. That sounds bad, and it is, but it's even worse when you consider that the Commonwealth's attorney can allege every image as a separate charge! It doesn't take long before the charges add up to a considerable amount of prison time. That being said, it is typical in Virginia to have an actual sentence significantly lower than the maximum punishment, with some portion of the total sentence suspended based upon compliance with judicial orders following release from prison.
As bad as that is, the federal system is far worse. There are several federal statues involving child pornography, but the most common is 18 U.S.C. 2252. This statute carries a possible 20 year sentence for a single count. The difference between the state and federal system is that a single federal count may actually result in a sentence approaching the maximum penalty! The reason for this is that the federal system's sentencing guidelines are typically much more severe than the state system. It is not unusual for an individual's sentencing guidelines in the federal system to come in at three or four times what they would be for the exact same child pornography offense in the state system. I get a lot of questions from clients in both systems wondering why the penalty ranges are so vastly different. I don't have a good answer for this, and frankly it is patently unfair that one defendant gets a sentence drastically longer than the other, simply by having the misfortune of being prosecuted in federal versus state court.
That being said, there are tactical decisions to be made when facing trial in the state court, simply based on the possibility that the feds may take interest in an ongoing state case, and simply take the matter over. This happens quite often, believe it or not, and when it does things have quickly gone from bad to way worse.
The bottom line is that possession and distribution of child pornography are some of the most serious charges you can face in Virginia. You must have an attorney who can handle these charges in both state and federal court, and has done so before. Computer forensics is a complicated field, and most attorneys don't know a thing about peer-to peer networks and the means by which these images are distributed today. Call an attorney who does, and who is ready to fight for you! |
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| June 15, 2011 |
| What is the difference between malicious wounding and assault? |
| Posted By Shawn Cline |
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I frequently meet with clients who are facing charges of malicious wounding, which is a Class 3 felony, who are wondering why they were not charged with simple assault, which is a Class 1 misdemeanor. Obviously, the difference in potential punishments is huge (20 years in state prison for malicious wounding versus 12 months in jail for assault), but what they want to know is how the offenses themselves are different.
Let's start at the lowest level, with simple assault under 18.2-57. If you read the code, you will notice that it doesn't really define the terms "assault" or "battery". That is because these are what are known as "common law" offenses, in other words, offenses dating back to our legal system's English roots. An assault is basically an offer to do violence to another, coupled with the means by which to do so. A battery is any unwanted touching of another. So an assault does not require physical contact at all, simply an expressed offer to engage in unwanted physical contact. Battery, however, does require unwanted physical contact.
Assault in Virginia can be a felony in certain circumstances, for example a third offense assault against a family member (see 18.2-57.2) or assault on a law enforcement officer. That being said, assault is usually a Class 1 misdemeanor punishable by up to 12 months in jail.
Things get far more serious when the Commonwealth's Attorney decides that the facts of a physical altercation rise above a simple assault and battery, and they elect to charge an individual with malicious wounding under 18.2-51. Malicious wounding is different from assault in several ways (beyond the staggering difference in potential punishments). Malicious wounding is not a common law offense, so its elements are described in the statue itself. The code requires that a defendant "shoot, stab, cut, or wound" or by any means cause "bodily injury" to another person "maliciously" and "with the intent to maim, disfigure, disable, or kill" to be convicted of this offense. For purposes of this statute, bodily injury can be inflicted simply by striking with fists or other body parts, in other words, a weapon need not be used. If the defendant engages in this conduct but without "malice", then he is guilty of unlawful wounding (a Class 6 felony), instead of malicious wounding. Malice is a complicated concept, but it is largely centered around that conduct which is calculated and deliberate, with minimal provocation.
There is an even more serious version of malicious wounding, referred to as aggravated malicious wounding under 18.2-51.2. This offense is a Class 2 felony, punishable by 20 years to life in prison. Aggravated malicious wounding is the same as malicious wounding, with the additional element that the victim must be "severely injured and is caused to suffer permanent and significant physical impairment."
Returning to the initial question (and the one that comes up most often) the difference between simple assault and malicious wounding really lies in the state of mind of the defendant. The question for the jury is whether the individual acted with the intent to cause bodily injury, and whether the individual acted with malice. If the person acted with intent to cause bodily injury, and did so with malice, then he is guilty of malicious wounding. If the person acted without malice, then he is guilty of unlawful wounding. Finally, if the person acted without the intent to cause injury at all, he would be guilty only of assault and battery.
As you can see, there are a myriad of issues involved with these kinds of cases, far more than I can discuss here. If you have been charged with a assault or with malicious wounding, contact us right away. The stakes are high, and time is of the essence in building your defense! |
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| May 27, 2011 |
| Assault on a family member? Can't we just work this out? |
| Posted By Shawn Cline |
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One of the most common offenses I see is assault on a family member in violation of Virginia Code Section 18.2-57.2. This is a Class 1 misdemeanor punishable by up to 12 months in jail an d a fine of $2,500, so it is a very serious offense. A third offense is a Class 6 felony, punishable by up to 5 years in the penitentiary.
The reality is that in 90% of the cases I see, the parties have long since made up and are back together by the time the case goes to trial. Often times, the "victim" in the case wants nothing to do with it and simply wants the matter to be dropped. Unfortunately, the charges are not taken out by the victim, but rather by the Commonwealth, and so the victim has very little say about what happens with the case. This is a ridiculous condition, but it is a consistent reality in this field of criminal law.
That being said, there are a few good reasons that Commonwealth's Attorneys do not drop these kinds of charges at the victims request. Most obviously, they are concerned that the victim is requesting that the case be dropped because they are intimidated by the defendant. This sounds good in theory, but in my experience this is almost never the case. Far more common is the scenario where a couple argued and tempers escalated, one thing lead to another and one party (usually the female) called the police hoping that they would mediate the argument and then go about their business.
This is fine in theory, but in practice the officers have very little discretion when responding to a domestic call. With exceedingly rare exceptions (usually involving a senior police officer), when officers respond to a domestic call, someone is leaving in handcuffs. The idea is that the matter will be sorted out in court.
That is where an aggressive criminal lawyer comes in. Don't assume that because you are charged you need to take some kind of plea agreement. These cases can be fought, and can be won! You need an attorney who regularly practices in this unique field of law and knows what it takes to effectively attack the Commonwealth's case. A good lawyer will use the Commonwealth's own witnesses against them in a way that often means that the defendant never has to present a case at all, because the judge will throw out the charges after hearing the Commonwealth's case.
Give us a call if you are facing a charge of assault on a family member. We will sit down with you, and the family member at issue (if they are willing), to develop an effective strategy for beating your charge! |
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| May 06, 2011 |
| Driving on suspended license |
| Posted By Shawn Cline |
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Driving on a suspended license is one of the most common misdemeanor traffic violations in Virginia. It is significant to note that driving on a suspended license is a Class 1 misdemeanor, which is the same as a DUI, so it's a serious offense! Many people don't take this charge seriously until after they are convicted, when they find themselves paying hefty fines, or perhaps even sitting in a jail cell. The time to address a driving on suspended charge is before trial, not after.
Driving on suspended license in Virginia is government by Code Section 46.2-301. It establishes that the maximum punishment for a first offense is 12 months in jail, a fine of $2,500, along with a drivers license suspension of an additional 90 days. A third or subsequent offense results in a mandatory minimum of 10 days in jail.
Many people do not hire a lawyer for a driving on suspended charge because they think to themselves that (a) I was driving, and (b) my license was suspended, so there's nothing a lawyer can do for me. That is not true, because there is a third thing that the Commonwealth's Attorney must prove for you to be convicted of this offense, and that is that you knew that your license was suspended! Since nobody can look into your mind, this is where good defense lawyers beat these charges.
There are many ways to prove that you knew your license was suspended. The most obvious way is if you told the officer at the time of driving that you knew your license was suspended. Sometimes an aggressive lawyer can get this statement thrown out, but that is a tall order. Other ways to prove knowledge are a signed DC Form 210 from the court wherein the suspension originated. If you signed the form (and the officer bothered to bring a copy of it to court), then it is tough to beat. Often times, however, the Commonwealth will try to prove its case using nothing more than your DMV transcript. If you hire an aggressive lawyer, this simply will not work. The fact that your DMV transcript shows that your license was suspended doesn't mean that you knew it was suspended. How many of us look at our DMV transcripts? I haven't seen mine, and you likely haven't seen yours.
The bottom line is that driving on suspended cases are winnable. But you must hire a lawyer who knows how to handle this charge. Too many people plead guilty to this serious traffic misdemeanor simply because they do not know any better. Don't let that happen to you... Call us today! |
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| April 29, 2011 |
| Is it better to be prosecuted in a military court or a civilian court? |
| Posted By Shawn Cline |
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I get this question fairly regularly, for a couple of reasons. First, because I practice exclusively criminal defense in southeastern Virginia, a large percentage of my clients are military. Second, not many attorneys around here practice in civilian courts as well as military courts, so few attorneys know the differences between the various systems. But the short answer to this question is: "it depends". Clients hate this answer because it sounds like the lawyer is being evasive, but the reality is that it truly does depend, and here is why:
First and foremost, there are certain offenses that are a big deal in the military, but might result in misdemeanor charges and minor penalties in state court. A good example is possession of a controlled substance. In civilian court, these charges often result in placement in the first offender program (if the defendant is eligible), which really is just probation, some classes, and a six month license suspension. On the other hand, in military court possession of controlled substances can easily result in many months in the brig, depending upon the circumstances. That is not to say that jail time is not possible in the civilian side, because it most certainly is, but simply that jail time is a virtual certainty in military court if you are convicted of this offense.
Similarly, if you don't come to work as a civilian, you might get fired. But if you continually don't come to work in the military, you will likely face court-martial, and potentially a long term in the brig. Same goes for disrespecting your boss. This is bad for your career as a civilian, but it can be bad for your freedom in the military. So in this way, there are some offenses that are better heard in civilian court than court martial.
On the other hand, there are other offenses that are much better in the military system. A good example is possession of child pornography. The problem with this offense in the federal and state systems (particularly federal) is that the sentencing guidelines are brutal. They are also somewhat arbitrary. Some prosecutors will charge every image as a separate offense, some will just charge a few and let others slide to keep the sentence reasonable. But the military system has no sentencing guidelines. All the military system has are maximum penalties for each offense. Without sentencing guidelines, an effective defense attorney can get outstanding sentences in military court on child pornography cases; often times just a fraction of what would be imposed in the state or federal system.
There are differences in procedure as well. In military cases, the prosecutor must turn over virtually all the evidence in the case, and must do so early in the process. Civilian discovery (particularly in state court) is far more limited. For this reason, it is much more difficult to anticipate what the prosecutor will do in civilian court.
There are countless other differences, far more than I can explain in this posting. But what should matter to you is that your lawyer understands these differences.
If you are facing criminal charges, and you are in the military, you owe it to yourself to contact an attorney who knows both the civilian and military systems inside and out... and I can tell you that there are few of us around who do. Do your homework, and make sure that you are dealing with a lawyer who can fight for you wherever your charges ultimately end up. Contact us, we are here to help! |
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| April 20, 2011 |
| What is a statute of limitations? |
| Posted By Shawn Cline |
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Statutes of limitations are set periods of time following an alleged criminal act after which a criminal prosecution may not commence. In other words, once the statute of limitations has passed, you are in the clear! That's the good news. The bad news is that Virginia is one of 7 states, along with North Carolina, South Carolina, Maryland, Kentucky, West Virginia, and Wyoming (noticing a geographic trend?), that have no statute of limitations for felonies. So you can be prosecuted for a felony committed in Virginia no matter how long ago the alleged act occurred.
However, Virginia does have statutes of limitations for misdemeanors. The general rule is that the statute of limitations for misdemeanors is 1 year. These are governed by Virginia Code Section 19.2-8. There are exceptions, however. Petit larceny must be prosecuted within 5 years. Unlawful abortion must be prosecuted within 2 years. There are various other exceptions for offenses rarely charged, often involving campaign finance crimes and malfeasance in office. Some of these apply in felonies as well.
The bottom line is that if you are charged for an offense that occurred long ago, you need to contact an experienced criminal defense attorney. It may be possible, depending upon the crime, to secure a complete dismissal of the charges based upon the statute of limitations. Only by talking to an experienced defense attorney will you know if this is an option in your case. Contact us today, we are here to help. |
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| April 15, 2011 |
| Child Pornography "To Catch a Predator" Stings |
| Posted By Shawn Cline |
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There was a time when possession and distribution of child pornography was rarely prosecuted because child pornography was part of a secretive sub-culture that dealt in the mailing of actual images of child pornography, often produced in Eastern Europe, to consumers willing to pay top dollar in the United States and elsewhere. There was also a time when people bought CD's at the mall. But the internet changed all that. Suddenly what you used to have to pay good money for became easily accessible and free via the world wide web. As a consequence of technology, many people who would never have had access to child pornography before the advent of the internet found themselves easily accessing it through their home computer.
But if you are doing this, you are going to get caught. Here's how:
Most internet exchange of child pornography occurs through what are called "peer to peer" networks. Peer to peer originated with the now defunct "Napster" network, and has developed through the years to Limewire, Kazaa, Gnutella, and countless others. These networks involve the sharing of digital media (songs, movies, etc.) through the internet. Membership in a peer to peer network requires a user to create what is called a "shared file" on their computer. A shared file is where the peer to peer user makes available some of their own computer files so that other users on the network can download the files to their own computer through the network. In exchange for making your files available for download, you can download a proportional amount of files from other users on the same network. This seems like a harmless arrangement, but there are serious problems with it in terms of your expectation of privacy.
Think of it like this: if you are smoking marijuana in your front yard and a police officer walks by and sees what you are doing, he can arrest you. You have no expectation of privacy in your front yard, so the officer can take action for what he sees you doing in such an open manner. However, if you smoke marijuana in your basement and the officer walks by, he (a) won't know what you are doing, and (b) even if he does, he still needs a warrant to mess with you. That is because you DO have an expectation of privacy in your basement.
Let's return to the peer to peer situation. If you are at home on your computer looking at files on your internal media, like the hard drive, you have an expectation of privacy. Law enforcement can't look into your hard drive without a warrant. But if you place files into the shared drive, then everyone who can download them (i.e. anyone on the peer to peer network), can see them! So you have no expectation of privacy.
Here's where it gets interesting. Every image on the internet (yes, every image), has a unique "hash value". That picture you just posted on facebook? It has a unique hash value. Well, so does every picture of child porn on the internet. You can rename images all day long, but the hash value NEVER CHANGES. The police aren't stupid. They know the hash values of hundreds, if not thousands of known images of child pornography. All they do is run massive searches for hash values of known images of child pornography through the shared files of peer to peer networks looking for matches. When they find matches, they identify the IP address (unique to the computer) of the user, and get a warrant. Then they come to your house, seize all electronic media, and arrest you.
So you see, it is exceedingly easy to get caught if you are looking at child pornography. It is a virtual certainty. But if it has happened to you, or someone you love, contact us immediately! The stakes are high, and you must hire an attorney who understands this complex area of criminal defense, and is ready to fight for you! |
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| April 04, 2011 |
| DUI loopholes? |
| Posted By Shawn Cline |
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Many people simply assume that because they are charged with a DUI, they will ultimately be convicted and that there is nothing to be done to fight the charge. For this reason, they often hire the least expensive attorney they can find and plead guilty as quickly as they can. While there are times when taking a plea agreement is the right course of action for a DUI, there are many other times where aggressively attacking the charges is the right approach. You need a lawyer who is able to recognize the difference, and knows how to do both.
Recent changes in the Virginia Code with respect to DUI have created a uniquely favorable set of conditions for a skilled DUI defense attorney. Virginia Code 18.2-268.9 was redrafted in response to a ground-breaking series of United States Supreme Court cases, beginning with
Crawford v. Washington in 2004 and ending most recently with
Melendez-Diaz v. Massachusetts in 2009. These cases arose from the premise in the
6th Amendment that "an accused... shall enjoy the right to be confronted with the witnesses against him". This seems like an innocuous concept, but the reality is much more burdensome upon prosecuting attorneys. The number of people that are involved with a simple DUI stop is far more than you might initially think. You may only see the officer that stopped you, but what about the officer that conducted the breath test? What about the technician that made sure the breathalyzer was working properly? If your case involved a blood draw, how many people were involved in the drawing, handling, and testing of that sample? If your case involved a DUI checkpoint, who set it up, and who authorized the checkpoint?
For years in Virginia, prior to Melendez-Diaz, courts would routinely admit into evidence "Certificates of Analysis" which contained statements from various individuals who were not present at trial, but who played a part in the analysis or handling of breath and blood samples. This practice has been substantially limited, by and large because of
Melendez-Diaz and also due to changes in the Virginia Code. But the Code has not evolved as quickly as the caselaw, and there are highly technical avenues for an aggressive DUI attorney to fight for exclusion of documents that would result in a conviction.
You must ask yourself what you are paying for when you hire a DUI lawyer. If you just want an attorney to show up to court and help you plead guilty, then there are plenty of attorneys for that purpose. If you want an attorney who will explore every possible avenue of acquittal, and make the government work for every inch of ground, then CONTACT US... We aggressively attack every DUI charge, and you deserve nothing less. |
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| March 28, 2011 |
| Internet Solication of a Minor |
| Posted By Shawn Cline |
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Given the popularity of shows like "To Catch a Predator", many state and federal law enforcement agencies have stepped up efforts to catch individuals who may be using computer chat rooms and other internet media to solicit minors to engage in various sexual acts for liaisons. Police officers will enter these chat rooms and websites posing as children for the purpose of catching individuals who are seeking to contact children. These police officers are not required to identify themselves, even if asked to do so, and frequently will set up meetings wherein the adult on the other end thinks he is going to meet with the child, but instead walks into a police sting.
In Virginia, soliciting a minor over the internet is a felony, with maximum punishments ranging from 5 to 40 years in the penitentiary, depending upon how the Commonwealth's Attorney decides to charge the case. In addition, any such conviction will result in registration as a sex offender.
If you or someone you know has been charged with this offense, you must contact an aggressive criminal lawyer right away. Time lost is opportunity lost, and you need an attorney who is ready to assist you in fighting this serious charge. Contact us right away, we are here to help! |
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| March 15, 2011 |
| DUI law in Virginia and Melendez-Diaz |
| Posted By Shawn Cline |
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Many people, and unfortunately many attorneys, consider a DUI to be a simple charge. To the uninitiated, it may appear that there is no way to beat a DUI. The defendant generally had been drinking, and the breathalyzer usually indicated as much. Is that the end of the story? Not hardly.
Among the myriad of tools that an aggressive DUI defense has in his tool box is the recent Supreme Court decision in United States v. Melendez-Diaz. At first blush,
Melendez-Diaz has nothing to do with DUI litigation. In fact, the case deals with the requirement in drug cases that the state produce live testimony from technicians from the laboratory instead of printed laboratory reports to show the chemical makeup of suspected narcotics. The basis for this holding is that every American has the right under the
6th Amendment to "confront witnesses against him" in a criminal prosecution. Essentially, the state cannot print out a report from a mysterious lab technician and then present that report as evidence at trial without the defendant having the opportunity to cross examine the technician who conducted the actual testing. That being said, for decades previous to
Melendez-Diaz, that is exactly what was done.
So what does all this have to do with DUI law? Well, if you have recently been charged with DUI, you should have in your possession a green piece of paper with "Department of Forensic Science" printed at the top of the page. There is a complex series of statutes that governs the admissibility of this document, most of which have been recently enacted in response to Melendez-Diaz. An aggressive and informed criminal defense attorney knows that there are ways to fight the admissibility of this document based upon the 6th Amendment and
Melendez-Diaz, depending upon the circumstances. Do not accept the admission of this document as a foregone conclusion. Hire a lawyer who is willing to attack this document to keep it out of the court's consideration.
Contact us right away. We are here to help! |
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| February 16, 2011 |
| Prescription fraud in Virginia |
| Posted By Shawn Cline |
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One of the most common drug offenses in Virginia, after possession of marijuana, is prescription fraud. Individuals that you would never think of as criminals can find themselves facing prescription fraud charges. These cases usually involve individuals within the health care profession, such as nurses, pharmacists, doctors, and pharmacy technicians. Easy access to presription narcotics can lead to temptation and pressure from friends and family to procure pills without authorization. Often times these individuals or their friends and family are suffering from addiction related to a prior medical condition for which they were prescribed pain killing medication.
While these people more often that not need treatment instead of punishment, Section 18.2-258.1 of the Code of Virginia makes this conduct a Class 6 Felony, punishable by up to 5 years in the state penitentiary! If you or someone you love is facing a charge of prescription fraud,
contact us right away. There is much that can be done to defend this charge. Often times a skilled attorney is able to present alternative dispositions to the Commonwealth's Attorney in these matters, avoiding prison time and felony convictions. The statute provides for a first offender program for eligible persons, whereby the charge is reduced to a misdemeanor after completion of certain statutory requirements. The bottom line is that this charge is serious, but can be addressed by a skilled and aggressive criminal attorney. |
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| February 08, 2011 |
| Charged with selling alcohol to a minor? |
| Posted By Shawn Cline |
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I see more and more clients charged with selling alcohol to underage persons in violation of Virginia Code Section 4.1-304, which prohibits sale of alcohol when the seller "knows or has reason to believe" that the purchaser is under 21 years old. Many hard working Virginians in the service industry or working at grocery and convenience stores sell alcohol hundreds of times a day in the course of their employment. These people do their best to ensure that they aren't selling to minors, but sometimes there are external pressures or simple fatigue that cause a lapse in vigilence, leading to an unlawful sale. The Virginia Department of Alcoholic Beverage Control (ABC) is constantly conducting stings on local alcohol venders, looking for occassions where minors are able to successfully make an illegal purchase. The stings are generally conducted using minors aged 17-19 under the supervision of a senior ABC agent who watches the purchase from a distance.
The ramifications of being caught in one of these stings are huge, especially for the individual who allows such a sale. First, the criminal charge is a Class 1 misdemeanor, carrying up to a year in jail and a fine of up to $2,500. But second, and perhaps even more severely, these individuals are often fired from their jobs upon conviction.
The employers know that ABC will come after them for large civil penalties, typically $2,000 for a first offense. For this reason, they tend to be merciless on the employee who accidently engaged in the sale.
If you have been charged for sale of alcohol to a minor, contact us right away. There is much that an aggressive lawyer can do to attack this charge. Don't accept a conviction as a foregone conclusion, as it may cost you your job, a lot of money, and perhaps even your freedom... Don't let this happen to you! |
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| February 03, 2011 |
| I've been charged in a dog bite case. What does this mean for me and my dog? |
| Posted By Shawn Cline |
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Many of my clients are dog lovers, and occasionally I receive a call from someone who has been charged under Virginia Code Section 3.2-6540 for a dog bite incident. These charges can be devastating for several reasons. Not only do they carry the possibility of jail time under certain circumstances, but they can result in the animal being put down. For these reasons, you must hire an aggressive criminal defense attorney to ensure that both you, and your dog, are spared.
Dog bite cases can result in the animal being classified as either a "dangerous dog" or a "vicious dog". The difference between the two is literally a matter of life and death. A dog found to be a "dangerous dog" must be registered as such with animal control and wear a special tag indicating this status. The owner of such an animal must periodically re-register the dog, and must maintain certain standards of enclosure in their yard, as well as signage warning others that the animal has been labeled "dangerous". In addition, the owner must maintain at least a $100,000 insurance policy against potential dog bites, or in the alternative must post a bond in the same amount as surety against such an attack.
These restrictions may seem severe, but they are far better than the determination that an animal is a "vicious dog". Any dog so designated shall be summarily euthanized by the local animal control agency.
Obviously, if your dog is involved in an attack on a person or another domestic animal, it is critical to get proper aggressive representation. Your pet's life may depend on it.
In addition, there are potential criminal penalties for the owners of "dangerous dogs" who engage in subsequent attacks after such designation. The owner of a dangerous dog that attacks another dog or cat will be charged with a Class 2 misdemeanor, punishable by up to 6 months in jail. The owner of a dangerous dog that bites a human will be charged with a Class 1 misdemeanor, punishable by up to 1 year in jail. If the dangerous dog's attack is the result of the owner's "reckless disregard for human life" and results in serious bodily injury, the owner will be charged with a Class 6 felony, resulting in one to five years in the state penitentiary.
As you can see, the stakes are quite high in dog bite cases. Not only is the owner's freedom at risk, the family pet's very life is in danger. If you are facing these types of charges, call us right away. We love dogs too, and we're ready to fight for yours! |
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