Recent Posts in restricted license Category
| July 19, 2011 |
| What does "implied consent" mean for a DUI charge? |
| Posted By Shawn Cline |
 |
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. |
|
| Continue reading "What does "implied consent" mean for a DUI charge?" » |
|
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 |
| |
| December 10, 2010 |
| What happens to my drivers license after a DUI? |
| Posted By Shawn Cline |
|
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! |
|
| Continue reading "What happens to my drivers license after a DUI?" » |
|
| Permalink |
| |
| November 12, 2010 |
| What Happens if I Don't Take a Breathalyzer? |
| Posted By Shawn Cline |
|
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! |
|
| Continue reading "What Happens if I Don't Take a Breathalyzer?" » |
|
| Permalink |
| | |