Recent Posts in traffic law Category
| December 14, 2011 |
| What laws apply to hit and run cases in Virginia? |
| Posted By Shawn Cline |
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Hit and run cases are fairly common in any criminal and traffic practice. Virginia has created a complex series of statutes governing the various reporting responsibilities of drivers and passengers involved in accidents. The primary statute is Virginia Code §46.2-894, which provides in essence that the driver of a vehicle involved in an accident involving attended property which results in death, injury, or property damage shall "forthwith" report such accident to law enforcement or to the occupants of the other vehicle. In addition, the driver must render assistance as required by the circumstances in the event of injury. Where a driver is unable to comply because of his own injuries, he must do so "as soon as reasonably possible". Violation of this section is a Class 5 felony if the accident results in death, injury, or damages in excess of $1,000. If the accident only results in damages less than $1,000 (and no injury), the person is guilty of a Class 1 misdemeanor. Given the nature of cars today, it is fairly rare to have an accident involving damages of less than $1,000, so these charges are very often felonies.
The duty to report is not limited to the driver, as Virginia Code §46.2-895 requires that where the driver fails to make a report, every occupant of the vehicle 16 years of age or older has a duty to report the accident to law enforcement within 24 hours. Failure to comply is a Class 6 felony if the accident resulted in death or injury. Otherwise this violation is a Class 1 misdemeanor.
Pursuant to Virginia Code §46.2-896, where the driver strikes an unattended vehicle or property he has an obligation to make "reasonable effort" to locate the owner, and failing to do so, shall leave a note identifying himself to the owner. In addition, he must report the accident in writing to law enforcement within 24 hours. Violation of this statute is punished as in §46.2-895.
All of these code sections and reporting requirements apply on both public and private property. These types of accidents often occur in private parking lots, but the same reporting requirements apply.
Depending upon the circumstances, hit and run in Virginia can carry the possibility of lengthy prison time. Regardless of the circumstances, hit and run charges can have a detrimental effect on your record. These are criminal, not traffic, offenses, and for that reason they should not be treated lightly by a defendant. Often these cases are assigned to top prosecutors within the Commonwealth Attorney's office, so proceeding without an experienced attorney of your own is perilous, if not foolish.
If you have been charged with hit and run, contact our office right away. There is much that can be done to address these charges. We will sit down with you and discuss the best avenues of defense based upon your specific case. |
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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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| September 24, 2011 |
| My BAC is over .08, I guess I have to plead guilty... |
| Posted By Shawn Cline |
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Not true!
I can't tell you how often I hear clients who feel absolutely defeated by the fact that they were stopped for DUI and produced a breathalyzer result over .08. "Over the limit, under arrest", right? Well, being over the limit can certainly get you arrested, but there is a long road between arrest and conviction, and an aggressive and experienced DUI attorney knows how to turn that road into a treacherous minefield for the prosecution.
First and foremost, unlike some states, Virginia does not have what is called a "per se" DUI statute. The best way to compare a "per se" DUI statute to Virginia's DUI statute is by example. As it turns out, North Carolina has a "per se" DUI statute. §20-138.1 of the General Statutes of North Carolina provides that a motorist shall be guilty of driving under the influence where "he has, at any relevant time after driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration."
Virginia's statute is different, however, and has been interpreted by the Virginia Supreme Court to mean that the result of a breathalyzer or blood test only creates what is called a "permissive inference" that the blood alcohol at the time of the breathalyzer was the same as the blood alcohol at the time of driving. This seems like a minor point, but cases are won and lost on minor points.
What this really means to the DUI practitioner is that in North Carolina, once the motorist submits a breathalyzer over 0.08, the case is essentially over (unless there was no reason to stop the vehicle in the first place, etc.).
However, in Virginia, that BAC over 0.08 is only indicative of the BAC at the time of the breath sample, not necessarily at the time of operation of the vehicle. This is a critical distinction, because the only BAC that matters in Virginia is the BAC at the time of operation of the vehicle.
This is where things get interesting; and where things get scientific. The science of blood alcohol is far more complex than can be explored in this posting. Suffice it to say that blood alcohol is a constantly changing variable. It changes with time, with alcohol intake, with food intake, with metabolism, and with countless other factors. If you have ever consumed alcohol, you know that the effects are not felt immediately. Think about it like this: if you take two bottles of beer and drink them as quickly as possible, you do not feel the effects right away. But perhaps 30 minutes later you will begin to feel some measure of intoxication. Why is there a delay? Shouldn't you feel the aclohol as soon as it's in your body? The answer is that the effects of intoxication are not felt until the alcohol actually gets into the brain, and to get there, it must first process through the digestive system, through the lining of the stomach and into the blood stream, only then can it flow into the brain to affect the central nervous system. This takes time. How much time? Well, it varies from person to person, and upon other variables such as food intake, speed and volume of alcohol intake, fatigue, metabolism, etc.
The reason why this is so important is that it is entirely possible for an individual to consume some amount of alcohol and then operate a vehicle with a BAC that is slowly rising, but never exceeding 0.08. This individual could be stopped on suspicion of DUI with a BAC of say, 0.07 (but still rising). By the time they get to the police station, that BAC could be drastically higher (and well above 0.08). In North Carolina (because of the "per se" statute), it makes no difference that the BAC at the time of the breathalyzer was higher than it was at the time of operation of the vehicle. But in Virginia, a skilled DUI attorney can demonstrate to the judge or jury through scientific evidence that the BAC could have been much lower at the time of operation of the vehicle than it was at the time of the breathalyzer; thereby rendering the breathalyzer result essentially meaningless. This is where things like performance on the field sobriety tests and testimony of witnesses to the individual's drinking can be absolutely essential, along with an understanding of the science of blood alcohol and it's effect upon the central nervous system.
The bottom line is that DUI litigation is a tremendously complicated field. If you are the kind of person who can't have a DUI on your record, you need to contact our office. Our rates are reasonable, but we know the law and the science of DUIs, and can apply both to winning your case! |
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| May 06, 2011 |
| Driving on suspended license |
| Posted By Shawn Cline |
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Driving on a suspended license is one of the most common misdemeanor traffic violations in Virginia. It is significant to note that driving on a suspended license is a Class 1 misdemeanor, which is the same as a DUI, so it's a serious offense! Many people don't take this charge seriously until after they are convicted, when they find themselves paying hefty fines, or perhaps even sitting in a jail cell. The time to address a driving on suspended charge is before trial, not after.
Driving on suspended license in Virginia is government by Code Section 46.2-301. It establishes that the maximum punishment for a first offense is 12 months in jail, a fine of $2,500, along with a drivers license suspension of an additional 90 days. A third or subsequent offense results in a mandatory minimum of 10 days in jail.
Many people do not hire a lawyer for a driving on suspended charge because they think to themselves that (a) I was driving, and (b) my license was suspended, so there's nothing a lawyer can do for me. That is not true, because there is a third thing that the Commonwealth's Attorney must prove for you to be convicted of this offense, and that is that you knew that your license was suspended! Since nobody can look into your mind, this is where good defense lawyers beat these charges.
There are many ways to prove that you knew your license was suspended. The most obvious way is if you told the officer at the time of driving that you knew your license was suspended. Sometimes an aggressive lawyer can get this statement thrown out, but that is a tall order. Other ways to prove knowledge are a signed DC Form 210 from the court wherein the suspension originated. If you signed the form (and the officer bothered to bring a copy of it to court), then it is tough to beat. Often times, however, the Commonwealth will try to prove its case using nothing more than your DMV transcript. If you hire an aggressive lawyer, this simply will not work. The fact that your DMV transcript shows that your license was suspended doesn't mean that you knew it was suspended. How many of us look at our DMV transcripts? I haven't seen mine, and you likely haven't seen yours.
The bottom line is that driving on suspended cases are winnable. But you must hire a lawyer who knows how to handle this charge. Too many people plead guilty to this serious traffic misdemeanor simply because they do not know any better. Don't let that happen to you... Call us today! |
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