Recent Blog Posts in December 2011 |
| 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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