Recent Posts in drugs Category
| 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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| 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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| September 28, 2011 |
| Can the police search my car when I'm stopped? |
| Posted By Shawn Cline |
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I can't tell you how common it is for clients to come to me with all sorts of charges that emerged from a search of their automobiles. There is almost a limitless variety of contraband that people can and do conceal in their cars as they commute from place to place. From narcotics, to concealed weapons, to illegal alcohol; police officers routinely find these items through vehicle searches.
Automobile searches are as complicated a field of criminal law as any you will find, and the law is constantly changing with various state and federal cases addressing specific fact patters and slight variations on the existing law. But certain points are well settled, and this posting will provide a cursory overview. Remember though, that there is no substitute for sitting down with an experienced criminal defense lawyer to discuss your specific case.
Code §19.2-59 provides that "No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer." Obviously, an automobile would qualify as a "thing", so it would appear that your car cannot be searched without a warrant. Unfortunately, courts have carved out an exception to the warrant requirement, which is known broadly enough as the "automobile exception". The cases that form the bedrock of this exception have come in the last 50 years in response to the proliferation of automobiles as the primary means of transit in this country.
So what is the "automobile exception", and how broad is it? Well, first and foremost, officers always have a right to seize contraband items that are in "plain view". So if an officer walks up to your vehicle and sees narcotics through the window, he can seize them (and take other actions, which will be discussed later).
But even if an officer cannot see the contraband with his own eyes, he can search an automobile if there is probable cause that the vehicle contains evidence of criminal activity (see United States v. Ross, 456 U.S. 798). So if the police pull you over and smell marijuana emanating from the vehicle, they can search any part of the vehicle where evidence of the marijuana might be found.
In addition, even where there is no probable cause that the vehicle contains evidence of a crime, police may search any part of the vehicle within immediate control of an individual being placed under arrest. (see Michigan v. Long, 463 U.S. 1042). This is ostensibly for officer safety. By way of example, this would allow a search of the entire driver compartment of a vehicle after removing and arresting the driver. The same would apply for a passenger being arrested. The discovery of contraband items in this limited search would probably constitute probable cause to search the entire vehicle. It is important to note, however, that the search incident to arrest must be based upon a charge which would actually result in arrest. For example, an officer cannot stop someone for speeding, place them under arrest, and thereby gain authority to search the drivers compartment of the vehicle. This is simply because there is no reason to arrest someone for speeding.
One type of search that is always allowed is a consent search; in other words, where the driver voluntarily allows the officers to search the vehicle. The key is that the consent must be voluntary. Consent is not voluntary if the officers gain consent through unlawful coercion. For example, if a vehicle is stopped for speeding, the officers are allowed to ask permission to search the vehicle. If the driver says no, however, the officers cannot detain the vehicle while waiting for a drug dog, with the hopes that the dog will give probable cause to search. This is because the duration of the stop cannot exceed that which would be reasonable to ascertain the nature of the violation (e.g. speeding), and write the appropriate summons. If, however, the drug dog could arrive within the reasonable time for issuance of such a summons, then the dog would be allowed to sniff around the car while the other officer issues the summons. The key is that the vehicle cannot be held longer than reasonable under the circumstances of the underlying stop.
Similarly, the officers cannot tell the driver that if he does not consent to a search, the vehicle will be held until the drug dog arrives, because it would not be legal to hold the vehicle for that period of time. Under these circumstances, the driver's consent to the search would probably be viewed as not voluntary, and therefore not valid.
One of the most glaring elements of the automobile exception to the search warrant are "inventory searches" of vehicles taken into police custody by virtue of being towed. These inventories are ostensibly for the protection of the vehicle owner so that no personal items within the vehicle are lost or stolen at impound. But inventory searches are exceedingly thorough, and require no probable cause that any contraband is within the automobile.
A high percentage of the contraband that ultimately finds its way into criminal proceedings comes from automobile stops. If you or someone you love is the subject of a criminal charge, and the basis of the charge was a stop and search of an automobile, please call our office right away. There is much to be done in addressing an automobile search. While courts have tried hard to limit the application of the search warrant requirement, the Constitution is still on your side. |
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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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| 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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