Recent Blog Posts in 2012 |
| 5 posts found. Viewing page 1 of 1. |
| May 09, 2012 |
| Can my charges be expunged? |
| Posted By Shawn Cline |
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Rarely does a day go by where I don't receive a call from someone who is seeking an expungement for a charge on their record. These people are often struggling to find meaningful employment because of a charge somewhere in their past that continues to show up on background checks. Unfortunately, this information is a matter of public record, and employers and schools often use this to (lawfully) discriminate against individuals who would otherwise be qualified for positions.
In a perfect world, I would be able to help anyone who has turned over a new leaf and put their criminal past behind them with securing an expungement. Unfortunately, Virginia only authorizes expungements under very limited circumstances. Virginia Code §19.2-392.2 allows for expungement of charges where the charge is dismissed by the court or where the Commonwealth's Attorney takes a nolle pros action, which basically means that they decline to prosecute the case. The code does not distinguish between felony charges and misdemeanors in terms of eligibility (although it does create a higher burden for granting felony expungements).
What is most glaring in this code section is that it does not allow for expungement of any conviction, however insignificant the charge and however light the punishment. So if you were convicted of drunk in public and fined $25 by the court, that will stay on your record for the rest of your life.
Also of importance is the interplay between "first offender" statutes such as those related to drug possession (§18.2-251) and domestic violence
(§18.2-57.3). A defendant who completes a first offender program is NOT eligible for an expungement of the charge, because to be placed in the first offender program, a defendant must either plead guilty, or stipulate that the evidence would be sufficient for a conviction. Many attorneys rush their clients toward the first offender program as an expedient way to secure a dismissal of a charge. These defendants often find themselves years later explaining to employers why they were charged with domestic violence or possession of drugs. These factors need to be considered prior to accepting the first offender program, not after the fact when it is to late to change the disposition.
The expungement process is quite lengthy. From the date that the petition is filed to the date when the record in Richmond is sealed can take up to six months. Numerous agencies are involved, form the Courts and Commonwealth's Attorney, to the Virginia State Police. It is a bit of bureaucratic nightmare, but the end result in the right case is a citizen who can truly move past a prior criminal charge.
If you are being held back by a criminal charge as you try to move on with your life,
call us right away. We will be able to tell you if you qualify, and can file a petition on your behalf and make the associated court appearances. The process is quite technical and sometimes requires the presentation of witnesses and evidence, but in the end it is always worth the effort. There is no substitute for a clean record, particularly in times like these where employers are looking at multiple applicants for every job available. Don't let your record hold you back!
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| April 03, 2012 |
| Is it legal to spank a child in Virginia? |
| Posted By Shawn Cline |
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I often meet with well meaning parents who have been accused of assault on a family member in violation of Virginia Code §18.2-57.2 who are in fact guilty of nothing more than spanking an unruly child. These concerned parents want to know whether spanking is a crime in Virginia. The answer is more complicated than one might suspect. First and foremost, spanking a child is not prohibited in Virginia, and there is no Virginia Code section directly on point in this regard. However, the Virginia Supreme Court has provided some guidance on the matter in stating that "a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child; but if he exceeds due moderation, he becomes criminally liable."
Carpenter v. Commonwealth, 186 Va. 851 (1947). The problem with this rule is that "moderation and reason" lack any specific definition. Is it acceptable to spank a child twice? How about ten times? What if I use a belt? Or a switch? None of these questions are answered directly. However, the Court provides some guidance in that the legality of a particular manner and degree of corporal punishment shall be determined by taking into consideration the "age, size and conduct of the child, the nature of his misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child".
The bottom line is that in Virginia, parents (and those acting in parental roles) may spank or otherwise corporally discipline a child as long as they do so within the bounds of "moderation and reason". Unfortunately, parents using this method of behavior modification do so at their own risk. Our society is increasingly intolerant of discipline in any form and increasingly tolerant of bad behavior in children. What you may view as punishment of a child within the bounds of moderation and reason may be viewed by a judge or jury as a criminal assault. If you or someone you love are facing a charge related to spanking or disciplining a child, contact us right away. We understand this complex area of law and are ready to fight for you!
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| March 06, 2012 |
| Do juveniles convicted of sex crimes become registered sex offenders? |
| Posted By Shawn Cline |
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I frequently represent juveniles accused of sexual offenses of various kinds, from the slightest inappropriate touching to the most serious felony offenses. Invariably, the juvenile and the parents are concerned about the possibility mandatory sex offender registration. This is a legitimate concern, as sex offender registration is often a life long stigma that prevents one from obtaining work and can substantially limit housing options. In addition, the registry is readily accessible to the general public, thereby creating a sense of perpetual ridicule and shame in the community. Fair or not, having one's name placed on the sex offender registry is a life altering event.
The good news is that most juvenile charges are handled in the Juvenile and Domestic Relations Court, which usually means that registration is not required, even for conviction of an offense that would otherwise require registration pursuant to Virginia Code §9.1.902. However, many juvenile felony offenses are certified to the adult circuit court through the provisions of
Virginia Code §16.1-269.1. This code section allows the Commonwealth's Attorney to request a hearing in the Juvenile and Domestic Relations Court for any minor who is at least 14 years old to have the matter certified to the Circuit Court, where the minor is treated as an adult offender. Pursuant to
Virginia Code §9.1-901, any juvenile convicted of an offense in Circuit Court which would require registration is required to register as a sex offender. In addition, the Commonwealth's Attorney can file a motion to have any charge for which registration would be required of an adult trigger registration of a juvenile where the minor is at least 13 years old. The Juvenile and Domestic Relations Court would rule on the issue of registration after the motion is filed.
The bottom line is that some juvenile offenses can result in a lifetime of sex offender registration. This must be taken into consideration in addressing any sexual allegation against a minor. If you or a child you care about are facing these types of charges, call us right away. We will sit down and discuss you specific situation and determine the best course of action. |
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| February 27, 2012 |
| Brandishing a firearm charges in Virginia |
| Posted By Shawn Cline |
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I frequently have clients come to my office facing charges of brandishing firearm. Usually, these individuals are lawfully carrying a firearm, and find themselves the victim of malicious prosecution at the hands of private citizens who claim to have been threatened by the presence of the firearm. Virginia Code §18.2-282 makes it a Class 1 misdemeanor to "point, hold, or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such a manner as to reasonably induce fear in the mind of another..." The penalties become far more serious if the offense occurs on or within 1000 feet of a school, wherein it is a Class 6 felony, punishable by up to 5 years in the penitentiary. This code section certainly serves a legitimate purpose, but many Virginians elect to lawfully carry their firearms openly, which can be misconstrued as a threatening gesture.
The ultimate question is whether the manner of carrying the firearm could reasonably induce fear in the mind of another. That is not to say whether the most timid individual conceivable would have been frightened by the manner of brandishing, but whether a reasonable person would have felt threatened. It is not a defense to establish that the firearm was not loaded, or was not functional at all, as the individual observing the firearm would have no way of knowing that. One could easily be frightened by an unloaded pistol, as it looks the same as one that is loaded.
If you or someone you know is facing a charge of brandishing a firearm in Virginia, contact our office right away. These charges can be dealt with effectively. We own guns too, and respect your right to carry them!
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| January 10, 2012 |
| What will a DUI do for my insurance? What is an FR-44? |
| Posted By Shawn Cline |
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When I meet with a client facing a DUI charge, they are typically worried most about the possibility of jail time. The reality is that for routine misdemeanor DUI charges, jail time is typically just a few days, and sometimes is suspended altogether. There are more lasting effects from a DUI conviction, however, particularly in the area of insurance premiums. The reality is that many insurance carriers will simply drop coverage for an individual convicted of DUI. This will depend largely upon your prior driving history, as well as factors such as age and employment.
Virginia is also one of a handful of states that requires additional minimum coverage for individuals convicted of DUI. Pursuant to Virginia Code §46.2-472, every motorist in Virginia is required to carry insurance of at least $25,000 insurance for bodily injury, $50,000 for bodily injury to two or more persons, and $20,000 for property damage. These coverage levels are actually fairly low, and most motorists carry significantly better coverage. However,
Virginia Code §46.2-316 mandates that those convicted of DUI are required to carry at least double the basic coverage mandated in §46.2-316. To facilitate this, individuals convicted of DUI in Virginia must complete what is called an
FR-44 Financial Responsibility Certification. This form essentially states that the individual is carrying insurance commensurate with the requirements for those convicted of DUI.
The bottom line is that most people fail to see the forest for the trees when the look at a DUI charge. They find themselves so terrified of the prospect of a couple of days in jail that they fail to appreciate some of the other more permanent effects of a conviction. Months and even years later, individuals are not concerned about having spent a few hours or days in jail, but they are greatly concerned about the staggering insurance premiums that follow the conviction.
There are countless reasons to aggressively fight a DUI charge. Insurance is just one of them. If you are facing a DUI charge in Virginia, contact us right away. We are here to help! |
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