The Best Offense is a Good Defense

Timing of Convictions Essential for Felony DWI

In Virginia, a third offense driving while intoxicated within a 10 year period is punishable as a felony.  In a recent decision, Stewart v. Commonwealth, the Court of Appeals reversed a Winchester Circuit Court's guilty finding on a felony DWI because the Commonwealth failed to prove that the instant offense was actually a third within 10 years.  The Court of Appeals stressed that the timing element of prior convictions must also be proven beyond a reasonable doubt in order for a felony DWI conviction to stand.

In the Stewart case, the Commonwealth introduced evidence of an arrest warrant for a second offense DWI within 5 years, as well as a circuit dispositional order for a second offense DWI.  However, no evidence was presented that the second offense DWI conviction in circuit court occurred within 5 years of the defendant's first offense DWI.  The problem belying the Commonwealth in this situation was that after a conviction of second offense in general district court, the defendant appealed his case to circuit court.  As a result of this de novo appeal, the defendant was entitled to a brand new trial as if nothing had happened in general district court.  Consequently, the defendant was also required to be rearraigned by the Court on the charge, meaning the official reading of the charge and entry of a plea.  The circuit court dispositional order only reflected a guilty plea to "DWI, 2nd offense" - it did not specify that it had occurred within 5 years of the first conviction.

Because the Commonwealth failed to introduce any other evidence that the defendant pled guilty to and was found guilty of a second offense DWI within 5 years (e.g., DMV record, transcript of circuit court arraignment, etc.), the Court of Appeals determined that the trial court erred in convictin and sentencing the defendant to a third offense (felony) DWI. 

The defendant also alleged that the Commonwealth failed to prove her first conviction occurred in Virginia, and if it did not, that the foreign statute under which she was convicted was substantially similar to Virginia's DWI statute.  The Court of Appeals, though, reaffirmed that a presumption exists in the favor of the Commonwealth that prior convictions are consistent with the Virginia DWI statute.  The defendant therefore bears the burden of proving that a prior conviction is inconsistent with Virginia the Virginia statute.  In the absence of any rebutting evidence, the trial court must presume that prior convictions are admissible for purposes of enhancing DWI penalties.

McMissile Gets Probation

In a case that has gained international attention, the infamous I-95 McDonalds ice cup thrower will only be sentenced to suspended time for her road rage incident.

Jessica Hall, a mother of three from North Carolina, was driving to New York when she found herself stuck in traffic on Interstate 95 in northern Virginia.  After allegedly being cutoff several times by another vehicle, Ms. Hall pulled alongside the car and threw her McDonalds cup of ice into the vehicle.  Though no one was injured by this act, Ms. Hall was charged with numerous offenses, the most serious of which was throwing a missile at an occupied vehicle.  A class 4 felony, this charge carried with it the possibility of 2 ot 10 years in prison.

After hearing the evidence in the case, the jury in the case found the defendant guilty.  Despite the fact that Ms. Hall had no prior criminal record, the jury imposed a two year prison sentence.  However, in a hearing to set aside the jury's verdict, Judge Frank Hoss of the Stafford County Circuit Court decided that Ms. Hall's lack of a criminal record merited a reduction of the sentence.  He instead suspended the period of incarceration and placed Ms. Hall on probation for 5 years.

What this case points out is the serious problem Virginia has with jury sentencing.  A defendant charged with a felony has the option of being tried either by a judge or by a jury.   While statistics suggest that bench trials (trials by a judge) are more likely to result in convictions than jury trials, judges have more options available for sentencing than does a jury. 

Most important is that a judge is allowed to suspend some or all of a defendant's jail sentence - juries are not allowed to give suspended time.  Another key difference is that judges are able to review sentencing guildelines.  Guidelines are prepared by a probation and parole officer after a defendant has been found guilty of a felony.  Point values are applied to various factors in a defendant's background, primarily consisting of past criminal convictions.  Through a series of computations, a range of incarceration time is recommended by the guidelines, along with a midpoint.  In many cases, the recommended sentence is significantly lower than the maximum amount provided by law.  Juries are not allowed to view these guidelines, and can only select a period of incarceration that falls within the range set forth by the criminal offense statute.  Finally, juries tend to be more harsh in sentencing than judges because they do not know what the "going rate" for a certain crime is.  Judges on the other hand hear criminal case on a regular basis and have a larger pool of knowledge to draw on when determining what an appropriate sentence would be. 

What does all this mean?  Simply put, the current state of jury sentencing in Virginia discourages defendants from taking jury trials.  While a conviction might be slightly more likely with a judge hearing the facts, there is a better chance of receiving a lighter or alternative sentence if convicted.  The McMissile case is a perfect example of what can happen by electing for a jury trial.  The punishment handed down by the jury did not fit the crime for which Ms. Hall was convicted.  Fortunately, Judge Hoss was reasonable enough to recognize that the interests of justice required a departure from the jury's sentence, though this situation was certainly an exception to the rule.  To avoid these types of occurrences in the future, Virginia needs to amend the current jury sentencing format by either abolishing it altogether and vesting that power with the judge exclusively, or by allowing juries to view the sentencing guidelines and impose suspended sentences.  I'm not going to hold my breath for either scenario to occur in the near future.

Starting With A Clean Slate - Expungement In Virginia

In a typical week, I will receive several phone calls or email from persons wanting to "expunge" a charge from their criminal record.  Many times this is desired because of a job application, but other reasons include personal dignity, adoption, foster care or other situations that require background checks.  Unfortunately, most of the people I speak to are not eligible for expungement, even though they claim that a charge was "dismissed" against them.  Virginia law has strict requirements for when an expungement of a criminal charge is available to a citizen, and even when available, there is still no guarantee a court will grant it.

So when is someone eligible to have a criminal charge expunged?  Virginia Code Section 19.2-392.2 is the governing statute, and sets forth three situations.  The first is if you are found not guilty of a charge by the court.  The second is if the commonwealth attorney takes a nolle prosequi or the charge is otherwise dismissed against the defendant.  Third, an expungement may be ordered if the defendant is granted an absolute pardon for a crime of which he was unjustly convicted.  The key to remember with all three scenarios is that an expungement will only be available to a defendant who is innocent.

With that being said, some types of misdemanor crimes are dismissed by courts after taking the case "under advisement" for a period of time.  This scenario usually follows a finding by the judge that there is sufficient evidence to make a finding of guilt.  However, instead of convicting and sentencing the defendant, the court may order community service to be completed, restitution to be paid, unsupervised probation, or any number of other conditions.  Following a duration of time set by the court, if all the conditions have been met by the defendant, the court will dismiss the charge against the defendant.  Examples of offenses where this type of arrangement is found include possession of marijuana, domestic or simple assault, and shoplifting. 

As you recall, the expungement statute states that a charge "otherwise dismissed" may be eligible for expungement.  However, the Supreme Court has interpreted the statute as not to include the situation I described above, where a defendant must satisfy certain conditions set by the court in order to achieve a dismissal of the charge against him.  The theory behind this is that expungement is an option only available to innocent persons.  The Supreme Court does not connote innocence to situations in which the court finds there is enough evidence to support a guilty conviction, but allows the defendant an opportunity to make up for the mistake by performing certain acts or remaining out of trouble.

The bottom line with expungement is that it is not an available option if you have been found guilty of an offense, or if you have satisfied certain conditions in order to obtain a dismissal.  Only when a judge declares you not guilty, the commonwealth nolle prosses your case, or you are pardoned for an unjust conviction can you petition the circuit court for an expungement.

If you have been acquitted of a criminal offense or had the charge nolle prossed or dismissed, contact the Law Office of Charles Homiller at (804)523-2999 for information on how to get it erased from your record.   Our experienced criminal defense practice is dedicated to preserving your dignity and livelihood when you have been wrongfully accused of a crime.

Domestic Assault - Deferred Disposition No Guarantee

As I have previously discussed, Virginia Code Section 18.2-57.2, the so-called domestic assault statute, criminalizes the assault and battery of a family or household member.  My emphasis of "and" will become apparent later in this article.  You may recall that on a first offense family assault, the judge has the option of deferring a judgment of guilt while placing the defendant on local probation, including the completion of an anger management class.  If after two years the defendant has complied with all terms of probation, the case will be dismissed.  This outcome is only available on violations of 18.2-57.2.

Virginia Code Section 18.2-57 is the simple assault statute.  As written, it merely criminalizes the assault of another person, not the assault and battery of an individual.  What is the difference bewteen assault and battery you may ask.  A battery is defined as an illegal or offensive touching of another person.  An assault is an act that puts some in fear or apprehension of suffering a battery.  If I raise my fist in anger at you, that could be an assault, but not a battery.  If I swing and hit you, that would be both and assault and a battery.

Now to my point.  In juvenile and domestic relations court this morning, I had a female client charged with an 18.2-57.2 assault and battery against her boyfriend, who is also the father of her child.  My client was convinced that she was innocent.  I could not convince her otherwise.  According to her, her boyfriend had been picking on her all day while they sat around the house drinking.  After about 8 hours of this conduct, my client walked over to her boyfriend, swung at him, but missed.  She then walked to another room, where her boyfriend followed her.  As he came towards her with his hands out to grab her, my client popped him twice in the mouth and kicked him in the leg. 

Despite my advice, my client insisted on telling her story to the judge, as she was sure she was innocent.  After listening to her testimony, the judge asked for argument on the facts.  The only argument I could make was that the battery was justified as self-defense since the boyfriend came at her after she retired to another room.  The judge agreed there was no battery, and thus she was not guilty of a 57.2 violation.  However, the judge also determined that her initial swing and miss constituted an assault under 18.2-57, as there was no actual battery.  He then convicted her of a simple assault, as it was a lesser included offense of the original charge.

The problem with this decision is that the Virginia Code does not allow for a deferred disposition on simple assaults like it does for domestic assaults.  Consequently, my client now has a conviction on her record and a suspended sentence hanging over her head, whereas if she had not testified, she would have been placed on probation with the possiblity of having the charge dismissed in two years.

Now, this outcome was my client's own doing.  I advised her not to testify, and I advised her to take the deferred disposition, but she chose not to do so.  However, it seems peculiar to me that the legislature would allow for a deferred dispostion on a first offense domestic assault and battery, but not offer a similar alternative for the lesser included offense of simple assault.  There seems to be a fundamental disconnect in drafting these laws to allow someone who is for all intents and purposes guilty of a more serious crime the opportunity to have it dismissed, but not provide the same opportunity to someone guilty of a less serious offense.

To Tell the Truth

No, not the old television game show.....

Last week I was in general district court on a traffic day.  Though I arrived early, the officer on my reckless driving case was late getting to court.  Because he naturally did not return my phone messages, I had to ask the court to pass by the case while I confirmed his radar calibrations and spoke to the Commonwealth Attorney about the case.  When I returned to my seat in front of the bar, the court was addressing cases involving minor traffic matters --- proof of insurance, expired tags etc. 

The court calls a case, and a 30 something year old woman walks to the bench, charged with not having a current sate inspection.  Normally, the court will dismiss the case if you show proof that you have obtained an inspection, and the inspection was not late by more than 3 months at the time of the offense.  Without swearing her in, the judge asked the woman if she had obtained an inspection, to which she replied yes.  As he was preparing to ask her another question, the judge realized he had not sworn the defendant in, so help her god, which he then proceeded to do.  The judge then asked her again if she had obtained a current inspection, to which she replied -- NO! 

For some reason I just found this to be amusing.  It was as if the defendant had not even answered the question differently the first time.  I suppose it is a positive commentary on society that some people do in fact believe in the sanctity of taking an oath to tell the truth -- even in matters as small as this one was.  Perhaps what I found even more amusing was that the judge continued on without blinking, without even making mention of this lady's attempt to defraud the court.  Had I been on the bench, I know fo a fact that I would have called her on the carpet for this type of insincerity.

Felony v. Misdemeanor

What is the difference between a felony and a misdemeanor in the Commonwealth of Virginia?  The simple answer is the punishment that one can receive for conviction of a crime.  Felonies are crimes that are punishable by death or imprisonment in a state correctional facility (prison).  All other crimes are considered misdemeanors.  Misdemeanor incarceration, which may not exceed 12 months, typically takes place at locally run facilities, such as county or regional jails. 

Misdemanors are divided into four classes, with Class 1 being the most serious.  The maximum punishments for the different classes of misdemanors are as follows:

Class 1:  12 months in jail; $2500 fine
Class 2:   6 months in jail; $1000 fine
Class 3:  $500 fine
Class 4:  $250 fine

Felonies are divided into six classes, again with Class 1 being the most serious.  The maximum punishments for the different classes of felonies are as follows:

Class 1:  Death, if older than 16 at time of offense and not mentally retarded; or,
              Life imprisonment and/or $100,000 fine
              *** If defendant is less than 16 at time of offense or is mentally retarded, death
                   penalty is not authorized.
Class 2:  20 years to life imprisonment and/or $100,000 fine
Class 3:  5-20 years imprisonment and/or $100,000 fine
Class 4:  2-10 years imprisonment and/or $100,000 fine
Class 5:  1-10 years imprisonment or 12 months in jail; $2,500 fine
Class 6:  1-5 years imprisonment or 12 months in jail; $2,500 fine

Certain crimes, such as grand larceny, are termed unclassified felonies.  This is because the punishment for conviction of these crimes is defined by the specific statute criminalizing the offense, not by the general guidelines described above.

Increased Fines on First Time Offenders

Take a look at this article from The Daily Press in Hampton Roads about proposed legislation to increase traffic fines to fund transportation projects.  The proposed bill would impose an additional $100 fine for traffic offenses that carry penalties of four demerit points.  Such offenses include speeding 10-19, failure to use a turn signal and following too closely.  But it does not end there. 

If you carry a balance of at least 4 demerit points, you will be assessed an annual penalty of $100, plus another $75 fine for each additional demerit point beyond four.  The bill has been labeled an "abusive driver" bill, despite the fact that only two violations could subject a person to these stiffer penalties. 

The problem I have with this bill is the potential collateral effects it could have on the judicial system as well as the general population.  A large segment of our population already does not have the financial ability to pay for traffic fines assessed to them.  As a result, many violators have their licenses suspended for not paying the fines, but continue to drive out of necessity.  I am in no way condoning such behavior, but at the same time realize that for some, there may be no other way to get to work, the doctor, the grocery store, etc.  If the General Assembly were to pass this bill, we will only see an increase in this problem as more people will be unable to afford the fines being proposed.  Our court system will subsequently become even more congested than it currently is.  Anyone who has spent a morning in traffic court can attest that it can be as bad if not worse than waiting at DMV. 

Interesting to note that a patron of this bill, David Albo, is a prominent Northern Virginia defense attorney.  Northern Virginia, revenue for highway projects?  You do the math.

A Primer On Domestic Assault Cases

     In my practice, I represent a large number of court-appointed criminal defendants.  A large percentage of these clients either are charged with, or have been charged in the past with assault on a family member.  Virginia Code Section 18.2-57.2 makes it a Class I misdemeanor for a person, including juveniles, to commit assault and battery against a family or household member.  Consequently, the maximum punishment for a first or second conviction of this offense includes 12 months in jail and a $2500 fine.  A third conviction within 20 years is punishable as a Class 6 felony, meaning 12 months in jail or 1 to 5 years in prison, as well as a maximum $2500 fine.

    Who is considered a family or household member?  Obviously one's spouse, children, parents and siblings are for the purposes of this statute.  Grandparents, grandchildren, stepparents, and stepchildren also are covered by this statute.  Additionally, an ex-husband or ex-wife are included within this definition even if you don't live with them.  In-laws are considered family under this law only if they live in the same house as the defendant.  If you have a child but are not married, the child's other parent is protected under this statute.  Finally, if you live together with someone or have in the past 12 months cohabited with someone, that person and any of their children living with you are considered family or household members.

     A question I receive quite often is "why can't my spouse/girlfriend/parent/etc. drop the charge?"  The answer is that once an arrest is made, the alleged victim merely becomes a witness for the Commonwealth.  The only way the charge can be dismissed is if the prosecutor decides to dismiss it.  There is a compelling reason to prosecute these types of cases, as domestic assault has been shown to be a repetitive offense, and in particular one that victims quite often will not pursue out of fear or intimidation of the alleged assaulter.  Consequently, the Commonwealth will only on rare occasions nolle pros, or dismiss, a charge without it going to trial.

     If you are a first time offender, the Virginia Code allows you the opportunity to keep your record clear of a conviction for family assault.  Virginia Code Section 18.2-57.3 permits a court to make a finding of facts sufficient to find a person guilty without entering a judgment of guilt.  The defendant is typically required to remain on probation for a period of two years and participate in a community based anger management class.  If the class is successfully completed and the defendant remains out of trouble during the probation period, the court will dismiss the case against him. 

    If you are convicted of a domestic assault under this section, not only could you receive jail time and a fine, but you will likely also be served with a protective order prohibiting contact with the victim for up to two years.  An additional, yet little known impact that a conviction for domestic assault has is that you lose your right to purchase or possess a firearm.  If you are subsequently caught trying to purchase or in possession of a firearm, you will be charged with a felony, creating even more problems for yourself.

Do I Have to Get a Virginia Driver's License?

     With the rapidly increasing immigrant population in Virginia, particularly around Richmond, Tidewater and Northern Virginia, a traffic court charge I see more and more of is "no operator's license."   What many people new to Virginia do not know is that even with a foreign (meaning out of state) license, a time limit still exists to acquire a Virginia license if you have moved to Virginia.

     Virginia Code Section 46.2-308 grants a temporary privilege to new Virginians to operate their vehicles on the state highways.  However, after 60 days of living in Virginia, you must obtain a Virginia license from the Department of Motor Vehicles.  If you do not, and are stopped by the police, you will be charged with an offense that is punishable as a Class 2 misdemeanor.  The maximum penalty for driving without an operator's license is six months in jail and a $1000 fine.  A judge will in many cases be lenient on a first offense of this kind, provided you do not have a checkered driving record.  However, subsequent charges will likely be penalized more heavily.  A primary reason for this is so that the state can ensure that drivers either a) have a motor vehicle liability policy in place, or b) are contributing to the state uninsured motorist fund.

     The bottom line is that while waiting at the DMV can be a hassle and a headache, it is a much better alternative than paying out hundreds of dollars in fines and potentially going to jail.

Next Generation Lie Detectors?

Here is an interesting article out of South Carolina concerning the use of brain scans to determine whether someone is lying.  Allegedly, they are more accurate than a traditional lie detector test, results of which are not currently admissible as evidence at trial.  Nevertheless, I would still be hesitant about the use of brain scan results for many reasons - expense, confronting witnesses and self-incrimination, to name a few.