Recent Posts in Criminal Defense Category
| 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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| 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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| 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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| February 03, 2011 |
| What is "disorderly conduct"? |
| Posted By Shawn Cline |
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I see clients fairly regularly who are charged with "disorderly conduct". Many people feel like there is no way to beat this charge, because very often they were intoxicated when they interacted with the police and said or did some things that they wouldn't have done when they were sober. Police officers will often cite citizens for disorderly conduct for simply behaving badly. The bad news is that disorderly conduct is a class 1 misdemeanor, punishable by up to one year in jail. The good news is there are many ways to defend against this charge.
Disorderly conduct is governed by Virginia Code section 18.2-415. First and foremost, for conduct to be charged as "disorderly", it must have occurred in a public place. In other words, if you are in your own home, or on other private property, you cannot be charged with disorderly conduct. Disorderly conduct is more than mere rudeness or lack of decorum. Disorderly conduct is one of three things:
First, disorderly conduct can be "conduct having a direct tendency to cause acts of violence by the person... at whom the conduct is directed". In other words, conduct that has a direct tendency to incite violence.
Second, disorderly conduct can be disruption of "any funeral, memorial service, or meeting of the governing body of any subdivision of this Commonwealth... or of any school, literary society, or place of religious worship" if, and only if the disruption "prevents or interferes with the orderly conduct" thereof or has the tendency to incite violence.
Third and last, disorderly conduct is conduct disruptive of any school or activity of any school if the disruption prevents or interferes with the operation of the school or activity.
As you can see, disorderly conduct covers a very narrow range of activity. Often times police officers will be frustrated with a belligerent suspect, but will have nothing to charge them with, so they will charge them with disorderly conduct. Do not simply accept a conviction as a given if you are charged with this offense. There are countless legal arguments to beat a disorderly conduct charge. Call us right away, we can tell you how! |
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| January 28, 2011 |
| Do I have a choice between a blood and breath test during a DUI stop? |
| Posted By Shawn Cline |
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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. |
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| January 26, 2011 |
| Possession of marijuana charges? What is the first offender program? |
| Posted By Shawn Cline |
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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...
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| December 29, 2010 |
| Can non-citizens be deported for criminal convictions? |
| Posted By Shawn Cline |
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It is becoming increasingly common for individuals to come to my office facing not only a criminal law issue, but immigration issues as well. Typically these people are here on a visa of some kind or have a green card allowing them to stay in the country legally. Some of them are completely undocumented and have no legal status in the United States. For these citizens of other countries, a criminal charge can have dire consequences.
First and foremost, undocumented persons arrested for an offense will have a "hold" put on them by the federal Immigration and Customs Enforcement Agency (ICE), which will result in denial of bond, or pretrial release. This can have the effect of individuals being held for lengthy periods pretrial, with the strong likelihood of being deported once the trial is finished.
For individuals from other countries here legally, ICE is not usually involved pretrial. However, there are serious consequences for these individuals if they are ultimately convicted.
The Immigration and Nationality Act allows for deportation proceedings for any alien convicted of "crimes of moral turpitude" (think of this as crimes involving dishonesty... larceny, perjury, etc.) that carry a possible sentence of 1 year or more. This is tricky because in Virginia most misdemeanors carry the possibility of up to a year in jail, so even a misdemeanor conviction can have the effect of deportation. In addition, it doesn't matter whether the judge actually sentences you to a year or more, it only matters that the judge could have sentenced you to a year or more, so a large number of charges carry the possibility of deportation.
Unfortunately, it is not uncommon for inexperienced lawyers to encourage a non-citizen to take some sort of plea deal in their case to avoid jail time, not realizing that the consequence of avoiding jail is deportation for a conviction on a minor charge. Make sure that your lawyer knows the ins and outs of immigration, and can guide you accordingly.
Felony convictions also carry the possibility of deportation, as well as any conviction involving drugs. Domestic violence, gun charges, and failure to register as a sex offender all carry the risk of deportation.
If you or someone you love is facing a criminal charge and they are not a United States citizen, contact us right away! What might seem like a minor violation, even a simple misdemeanor, can have the unwanted consequence of ending your stay in this country. Don't let this happen when in many cases it can be avoided through aggressive defense of your charge. |
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| December 10, 2010 |
| What happens to my drivers license after a DUI? |
| Posted By Shawn Cline |
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This is one of the biggest concerns for most citizens in DUI cases. Often times individuals can afford to pay the fines, particularly if they are already considering hiring an attorney; and jail sentences are usually measured in days on simple DUI cases, rather than weeks or months. However, drivers license issues can go on for months, and even years in the most serious cases.
DUIs can affect an individual's driving privileges in two ways. First, 46.2-391.2 of the Virginia Code provides for an administrative suspension of your drivers license if you are arrested for DUI. Essentially, the officer will seize your drivers license on scene and return it to the court for disposition. The length of seizure will depend upon how many times the individual has been convicted of DUI. Someone charged with a first offense will lose their license for seven days. A second offense charge results in a 60 day loss of license. For a third or subsequent offense, the license is suspended until the date of trial.
That's just the beginning though. Once you actually go to trial, the judge will revoke your license upon conviction of a first offense for a period of one year. The judge cannot suspend any of this time. A second offense within 10 years means an automatic 3 year license suspension. A third offense results in an indefinite revocation of your privilege to drive (however, you may apply for reinstatement after 3 years with a restricted license; and after 5 years for an unrestricted license).
For first and second offense DUIs the judge may, and often does, authorize the issuance or a restricted drivers license (the judge cannot authorize a restricted license if you are convicted of refusing to take a breathalyzer). The terms of restricted licenses are up to the judge, but typically they allow an individual to drive to work, drive during work (if required by the job), drive to school, daycare, medical appointments, and alcohol counseling. The judge will determine what the specific terms of a restricted license are on a case by case basis.
Many people are so concerned about not going to jail that they forget about the loss of license and the drastic affect that can have on your life. The reality is that the affects on one's license are some of the most lasting and serious problems with a DUI conviction. If you are facing DUI charges anywhere in Hampton Roads, call us right away! We focus on DUIs, and are here to defend you charge and keep you driving! |
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| December 07, 2010 |
| 'Tis the season for DUI checkpoints! |
| Posted By Shawn Cline |
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The holidays are fast approaching, and there are more and more reasons why individuals might find themselves a few drinks deep at a location other than their homes. You can rest assured that local police departments will be conducting roadblocks in the coming weeks to deter people from getting in their cars and driving home after a night of drinking. But anyone who has taken a basic law class or read the Constitution knows that law enforcement can't just pull a vehicle over for no reason at all. There must be "reasonable suspicion" that criminal activity is afoot. Without reasonable suspicion, officers cannot stop a citizen in his travels.
Well, sort of. Because courts have carved out many exceptions to this fundamental Constitutional principle. And one of these exceptions is for DUI roadblocks, or checkpoints. Courts in Virginia (and just about everywhere else), allow DUI checkpoints under certain very limited guidelines because of the state's interest in protecting the public from drunk drivers. That being said, DUI checkpoints must adhere to very strict rules, or the arrests from the operation can be dismissed in court. Individual police officers do not have the authority to set up a DUI checkpoint on their own. Instead, the checkpoint must be conducted in accordance with a plan approved by the police department at the highest levels, and must limit the discretion of the police officers. For example, the plan must establish what time the checkpoint will be conducted, where it will be conducted, and how vehicles will be selected for stop (e.g. stop every third vehicle). If the plan is not specific, or if the plan is not followed, the results can be thrown out of court as an unlawful stop.
If you have been stopped at a DUI checkpoint, contact our office right away. We will fight at every turn to find error in the handling of the checkpoint. DUI checkpoints do more to snarl traffic than they do to deter drunk drivers. We fight every DUI aggressively; but where checkpoints and roadblocks are in play, we have more ammunition than ever! |
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| November 18, 2010 |
| Is there a difference between DUI and DWI? |
| Posted By Shawn Cline |
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I get this question fairly regularly from DUI clients. The short answer is that there is no difference, and that the state of Virginia does not have an offense of "DWI". In some states DWI is a less serious version of DUI, but that is not the case in Virginia.
That being said, there are many levels of severity of DUI in Virginia. For purposes of this post, I will focus only on those which do not involve death or bodily injury to another party. Obviously these are the most serious types of DUI, but thankfully they are the most rare. That being said, if you are facing such a serious charge, contact us right away. We can help.
Virginia Code 18.2-270 outlines the penalties for DUI. There are two ways that DUI penalties can be elevated. One is based upon the driver's blood alcohol content, or BAC. The other is based upon recidivism, or the number of times that the individual has been convicted previously of DUI.
The least severe form of DUI involves a BAC between .08 and .14 for an individual who has not been convicted previously of DUI. There's nothing light about these penalties though; even this offense carries the possibility of up to a year in jail, a fine of up to $2,500, installation of an ignition interlock on your vehicle, enrollment in alcohol counseling, a one year drivers license revocation, plus court costs!
Things just get worse from there. A violation with a BAC between .15 and .19 means a mandatory minimum of 5 days in jail, which the judge cannot suspend. A violation with a BAC over .20 means a 10 day mandatory minimum jail term. Keep in mind, these are the minimums, and judges frequently go well over these amounts.
Where things really get ugly is for repeat offenders. A second DUI within 5 to 10 years carries a mandatory minimum of 10 days in jail, while a second DUI within 5 years carries a mandatory minimum of 20 days in jail. These are in addition to any mandatory minimums based upon an elevated BAC.
A third offense DUI is a felony, and carries a 90 day mandatory minimum. The stakes continue to escalate after that, with a fourth or subsequent offense carrying a mandatory one year prison term. Felony DUI will result in at a minimum a three year drivers license suspension with no restricted license, and a minimum of five years before such a driver could apply for an unrestricted license.
The bottom line is that the term "DWI" has no meaning in Virginia, but there is a wide range of severity in terms of the types of DUI charges that appear in Virginia courts. If you are charged with a DUI in Virginia, contact our office. We give every case our greatest care and attention. Do not assume that because you were stopped and arrested that the punishments I have talked about are unavoidable. There is much to be done in defending a DUI... let us get started on defending yours! |
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| November 17, 2010 |
| What does immunity mean? |
| Posted By Shawn Cline |
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I have represented numerous individuals over the years who have been offered one form of immunity or another by the prosecution. Normally the situation goes something like this: My client is alleged to have been somehow involved in a criminal enterprise that included one or more accomplices. In an effort to secure a conviction against one or more other parties, my client is offered immunity to testify against the other individuals.
Sounds simple, right? Not so much. The reality is that there are two different types of immunity, and certain offers of immunity are far more favorable than others.
The most common form of immunity is called "testimonial immunity". Testimonial immunity means that nothing that you testify to after the grant of immunity may be used against you in your own trial. This is commonly used in cases of co-conspirators. Basically it is a way to get around the witness's right to assert their 5th Amendment privilege to not say anything at all. The prosecution assures them that nothing that they testify to will be used against them in any way. The problem with testimonial immunity is that it does not prevent the government from prosecuting the individual for the offenses that they are testifying about; it simply means that they have to prove the case without using any of the statements made by the individual after the grant of testimonial immunity.
This sounds fine, but there may be other ways for the government to prove it's case against you. For example, you may have already confessed prior to the grant of immunity, in which case that confession could still be used against you. Or there may be other witnesses or forensic evidence that can prove the case without using your testimony. So testimonial immunity is not all it's cracked up to be.
On the other hand, "transactional immunity" is quite a gift. Transactional immunity means that not only can the testimony not be used against them, but the individual can't be prosecuted at all for the subject offenses. Transactional immunity functions as an absolute bar to prosecution for any offenses for which a witness is called to testify.
If you are facing charges, or if you have been offered some arrangement for immunity and have not consulted with a lawyer, call our office right now! We can help you navigate this complex area of law. Your freedom may depend upon the quality of counsel you receive! |
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| November 12, 2010 |
| What Happens if I Don't Take a Breathalyzer? |
| Posted By Shawn Cline |
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The Virginia Criminal Code 18.2-268.3 establishes penalties for failure to submit to a breathalyzer after a DUI arrest. Operating a motor vehicle on a "highway" (which includes any public road), constitutes consent to to have samples of breath, blood, or both taken from a suspect arrested for DUI. Therefore, a driver lawfully arrested for DUI in Virginia must submit to a breathalyzer, or he or she is in violation of 18.2-268.3. The penalties for such violation vary depending upon the individual's DUI history. A first violation is a civil offense, resulting in a one year drivers license suspension. Unlike a DUI conviction, anyone convicted of improper refusal to submit to a breathalyzer is not eligible for a restricted drivers license. This means no driving, for any purpose for the next year; whereas someone convicted of DUI may be eligible for a restricted license that allows them to drive to work, school, and medical appointments. Anyone convicted of improper refusal who has within the previous 10 years been convicted of DUI or improper refusal is subject to a 3 year license suspension, again with no restricted license. This second offense also carries the possibility of jail time.
In addition, the fact that you do not submit to a breathalyzer does not mean that you will not be charged, and perhaps convicted, of DUI. The court will consider other evidence presented by the Commonwealth's Attorney for this purpose. For example, the officer will testify about how you were driving, how you did on the field sobriety tests (assuming that you consented to perform them), and his observations of your general demeanor and motor skills. So it is possible to be convicted of both improper refusal and DUI.
If you have been charged with DUI or with improper refusal, call us right now! We can help you navigate this complex area of law. We aggressively attack DUI charges, and are ready to defend yours! |
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| November 11, 2010 |
| But the Officer Didn't Even Read me my Rights! |
| Posted By Shawn Cline |
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Clients frequently tell me that the arresting officer did not read them their rights. While this always piques my interest, it is not always critical in the ultimate outcome of the case. We all watch television and movies, and through these media were are inundated with the idea that police officers have to read suspects their rights. This is true... sometimes. The rights we are talking about come from the case of Miranda v. Arizona, a 1966 Supreme Court case establishing the requirement that officers must advise a suspect of their rights to (a) remain silent, and (b) have counsel present at a custodial interrogation.
The reality is that rights advisements are only required for suspects who are "in custody" and being "interrogated". So how do law enforcement officers get around this requirement? Well, for starters, they may tell you before beginning an interview that "you are free to leave at any time". By saying this, you are no longer considered to be "in custody". Unfortunately, many people are so intimidated by their surroundings (police station, badges, guns, etc.) that they do not really feel free to leave, no matter what the officer says. Also, officers will often gather all the incriminating statements they need before placing someone under arrest. Then, after the arrest, they will not ask them any questions at all. I see this all the time. Individuals confess to committing crimes while they are not in custody, and then are upset that the officer did not read them their rights after the officer placed them under arrest. The officer did not read them their rights because he was done with his questioning before he arrested them! It's that simple. No rights advisement is required if no questions are asked. In fact, if a talkative suspect feels the need to spill the beans without being asked any questions at all, officers are not required to stop him for a rights advisement. The statement is treated as voluntary and can be used in court.
Miranda warnings are some of the most contentious areas of criminal law. Aggressive prosecutors and vote-seeking politicians have been eating away at this fundamental American right since 1966. Are you facing criminal charges where you made statements against your interest? Call us! We may be able to help! Miranda v. Arizona is your ally, let's sit down and see how it can be applied to your case. |
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| November 08, 2010 |
| Welcome to our Criminal Defense Blog |
| Posted By Hampton Roads Criminal Defense Attorney |
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| We are pleased to announce the launch of our Criminal Defense Blog. |
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