Recent Blog Posts in January 2011 |
| January 28, 2011 |
| Do I have a choice between a blood and breath test during a DUI stop? |
| Posted By Shawn Cline |
 |
The short answer is "no". Several years ago, Virginia motorists arrested for DUI had the option of either a blood or breath test to determine their blood alcohol content (BAC). The conventional wisdom at the time was that it was better to request a blood test because it took longer to have the blood drawn than it did to give a breath sample, so there was more time to sober up and hopefully slip under the legal limit. This was generally good advice, as long as you weren't terrified of needles.
But the legislature took away this option in 1995, so now the vast majority of DUI cases involve a BAC result produced through a breathalyzer. But there are still times where DUI charges will include blood evidence of intoxication. One such case is where the individual suspected of DUI is involved in an accident and is unable due to injury to submit to a breathalyzer. In these cases, the officer will typically subpoena the blood work from the hospital to send to the laboratory in Richmond for testing.
Another less common source of blood results in DUI cases come in cases where the arresting officer suspects that the person may be under the influence of some sort of narcotic. The breathalyzer machine only tests for breath alcohol, and cannot detect any narcotics that may be in the individual's system. A blood sample, however, can be tested for virtually any type of narcotic.
The bottom line in terms of DUI defense is that cases involving blood testing instead of breath testing offer far more avenues for acquittal. For one thing, if the sample is taken for medical purposes at the hospital, the forensic precautions involved with a police blood draw are not followed, opening up a myriad of possible defenses. In addition, the procedural mandates for processing blood samples are specifically laid out in the Virginia Code, Section 18.2-268.5 to 18.2-268.7. Because these procedures are statutory, unlike the breath sample procedures which are
regulatory, non-compliance will likely result in suppression of the results, and in many cases dismissal of the charge.
An experienced DUI attorney will not treat a breath test the same as a blood test. The issues are completely different, and attacking each requires a different approach. Hire a lawyer who understands the difference, and is ready to defend your case accordingly! We are ready for your call. |
|
| Continue reading "Do I have a choice between a blood and breath test during a DUI stop?" » |
|
Permalink  |
| |
| January 26, 2011 |
| Possession of marijuana charges? What is the first offender program? |
| Posted By Shawn Cline |
|
One of the most common charges people face in Hampton Roads is simple possession of marijuana, in other words, possession of marijuana for personal use and not for distribution. Possession of marijuana for personal use in Virginia is a misdemeanor, punishable by up to 30 days in jail, and a fine of $500. In addition, and perhaps even more damaging, any individual convicted of possession of marijuana will by operation of law have their drivers license suspended for 6 months. These penalties do not even factor in the lifelong affect of having a drug conviction on your permanent record when you apply for jobs, school, the military, etc.
The Virginia Code allows for what is called the "first offender program" for first time marijuana possession charges. To be entered into this program, you must enter a plea of guilty or no contest to the charge, complete a substance abuse assessment, and complete a drug education and/or treatment program based upon the recommendation of the substance abuse assessment. You bear the costs of these programs (which are substantial), as well as all court costs. Anyone enrolled in the program will be required to complete at least 24 hours of community service (but the judge may order more), and will be subject to random drug testing while enrolled in the program. The charge is then dismissed at the end of a year if the individual successfully completes these requirements. However, even though the charge is ultimately dismissed (if you do everything right), the 6 month drivers license suspension still applies the same as if you had been found guilty.
I provide this information because the prosecutor will offer the first offender program in the vast majority of cases where individuals are eligible. But just because it is offered does not mean it is a good deal. Depending upon the facts and circumstances of your case, there may be ways to beat this charge outright; so that you protect your clean record, your drivers license, and your future.
Prosecutors are eager to offer first offender status to those who are eligible because proving a marijuana charge is a lot of work for them! Be wary of a defense lawyer who pushes the first offender program on you without thoroughly examining the possible avenues for acquittal in your case.
Was the marijuana seized lawfully? If it was found in your home, why was the officer there in the first place? If it was in your car, why were the officers searching your car? Was it found on you, or just near you? If you made any statements, are they admissible against you in court? Did the officer complete the chain of custody forms? Were these forms maintained to the evidence locker? Was the marijuana field tested? Was it sent to the laboratory in Richmond? And on and on and on...
There are so many ways for an aggressive attorney to attack a possession of marijuana charge. If all you are doing is shopping around to find the cheapest lawyer in town for your marijuana charge, then you are simply accepting the first offender program as a foregone conclusion. Hire a lawyer who will fight for you, not one who will take the first deal the Commonwealth offers.
Whatever you think about marijuana laws in this country (here is information on an organization seeking to change them), if you are facing a marijuana charge in Virginia, the stakes are high. If you are going to hire a lawyer, hire one willing and ready to fight for your rights!
We are waiting for your call...
|
|
| Continue reading "Possession of marijuana charges? What is the first offender program?" » |
|
| Permalink |
| | |