Recent Posts in controlled substance Category
| 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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| 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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