The Best Offense is a Good Defense

North Carolina Drivers Beware

If you are licensed in North Carolina and get an out of state speeding ticket, prepaying the fine could cause you to lose your license!  Many North Carolinians do not realize that a law on the books requires a 30 day license suspension if convicted of speeding more than 15 miles per hour over the limit while driving at least 55 miles per hour.  A second offense of this type carries a 60 day license suspension.

As a Virginia traffic attorney, I represent many residents of North Carolina who are charged with both simple speeding as well as reckless driving.  The I-95 corridor through Virginia has a minimum speed limit of 55 miles per hour, meaning that North Carolina drivers are at a significant risk for suspension in their home state if caught speeding in Virginia.  I routinely assist North Carolina drivers who are facing this severe penalty.  If you are a North Carolina driver stopped by the police for speeding or reckless driving in Virginia, I can help you avoid license suspension and DMV points, in many cases without the need for you to appear in court.  Contact my office at (804)288-3600 to find out how I can help you with your case.

Don't Ignore Your Reckless Driving Charge

    All too often I receive calls from individuals who received a reckless driving charge, but didn't think it was a big deal.  The problem is that by the time they call, the court date has passed, the appeal deadline has passed, and nothing can be done to alter the conviction.  If only they had called sooner, I could have stopped them from making such a mistake.

    As I have posted previously, reckless driving is a class I misdemeanor in Virginia, which means a maximum punishment of 12 months in jail, a $2500 fine, and a 6 month license suspension.  Granted, jail time and thousands of dollars in fines are reserved for all but the most severe cases, but this should demonstrate how serious an offense reckless driving is.  The degree of punishment varies significantly from one jurisdiction to another.  In the central Virginia area, some courts (Henrico, Chesterfield, Richmond City) will begin imposing jail time at 90 mph, regardless of how good a driving record you have.  In other jurisdictions, 100 mph may not carry any jail time at all, though you will lose your license.  Most of the jurisdictions that impose jail time will also issue bench warrants should you fail to come for your trial, essentially making you a "wanted" person.

    In Virginia, reckless driving has many different definitions.  However, the most common offense is reckless driving by speed.  Traveling at 20 miles or more over the speed limit, or simply in excess of 80 mph, is reckless driving by statute.  It does not require proof of any other poor driving behavior other than speed itself.  Thus, even though it may not be reckless driving in your home state to travel 81 mph, doing so in Virginia could lead to a criminal conviction. 

    As a result, the most important reason not to ignore your reckless driving ticket is having the opportunity to avoid the criminal conviction.  Not only will the conviction be reflected on your driving record, it will also be reflected on your criminal background check, which can pose other problems in your life.  Employment opportunities and security clearances are the two areas I hear of being most affected by reckless driving convictions.  In many cases, we are able to negotiate or argue for a reduction or dismissal of reckless driving charges to avoid the damaging nature of such a criminal conviction.

    Another damaging side effect of reckless driving convictions is on your automobile liability insurance.  Now, while the exact effect of a conviction on your insurance should be discussed with your insurer, it is no secret that most if not all companies will consider raising your monthly premium if you are found guilty of reckless driving.  Most increases will also last for at least a few years until you prove to your insurer that your conviction was an isolated incident.  As an example, a $25/month increase in your insurance that lasts for three years would end up costing you an extra $900, which will probably far outweigh the attorney fee might pay to avoid a reckless conviction.  I have even heard of premiums increasing by as much as a few hundred dollars per month!

    A final consideration to make when thinking about how to handle your reckless driving charge is how the conviction would translate to your state.  While in a few states, out of state convictions will not result in points to your license (insurance can still be affected), most other states will dock your driving record for a conviction.  In some states, you could also run the risk of losing your driver's license even if the court in Virginia did not suspend your privilege to drive.  North Carolina is the most common example that I see of a home state law imposing a secondary punishment after Virginia has imposed the primary punishment.  More on this in my next post.

    As you can see, Virginia takes reckless driving very seriously.  I am explaining these things not to try to convince you to hire us to represent you in court (though I would be happy to), but more so to explain the serious consequences that may befall you should you just choose to ignore the ticket.  Don't say I didn't warn you!

    

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.

You've Been Busted With Pot - Now What?

So the police have charged you with possession of marijuana.  What does that mean in the state of Virginia?  Marijuana possession is prohibited by Virginia Code Section 18.2-250.1.  A first offense is categorized as an unclassified misdemeanor, and punishable by a maximum of 30 days in jail and a $500 fine.  A second offense is categorized as a class 1 misdemeanor, an offense that carries a potential maximum punishment of 12 months in jail and a $2500 fine.  A conviction for marijuana possession also carries with it a six month suspension of your driver's license.

When prosecuting drug possession cases, the state must prove that you either knowingly or intentionally possessed marijuana.  Practically speaking, the prosecutor must prove beyond a reasonable doubt two different things.  First, it must be demonstrated that you were aware you were in the possession of marijuana, and second, that you knew or should have known that the substance in your possession was actually marijuana.   Possession may be actual or constructive.  An example of actual possession would be finding a joint in your coat pocket, while constructive possession might be finding a bag of pot in the glove compartment of your car.  In the first circumstance, the illegal drugs are on your person, while in the second scenario, they are not on your person, but are in an area that is under your control.

For obvious reasons, allegations of constructive possession are easier to defend against than actual possession.  In fact, the code section prohibiting marijuana possession states that no presumption of knowing or intentional possession shall arise simply because the marijuana was found on the premises or in the vehicle that you owned or were occupying.  Refer back to the marijuana in the glove compartment.  By itself the location of the drugs is not sufficient to convict you.  However, if the police present evidence that the vehicle was registered in your name, that you were the only one in the vehicle when the drugs were found, that you had other personal items in the glove compartment, and the vehicle smelled like marijuana, that additional evidence could prove beyond a reasonable doubt that constructively possessed the marijuana.

Even if the the state has enough evidence to secure a conviction for possession of marijuana, there is still a chance you may be able to escape from this situation without a conviction.  If this is your first possession offense, the court has the option of deferring disposition of your case for 6 months.  During that 6 months, you will be on community probation and will be required to remain drug and alcohol free.  You will be subjected to random urine screens to test for the presence of drugs and alcohol.  As part of the probation you will also be required to submit to a substance abuse screening and treatment program if necessary.  Additionally, you will have to perform a set amount of community service, in most marijuana cases no more than 24 hours.  The court may impose any other terms and conditions of probation that it sees fit for your individual situation.  Finally, your driver's license will be suspended during your 6 month probationary period.  However, we can request that the judge issue you a restricted license so that you can drive to and from work, school, doctor's appointments, court related appointments and child care services.  While this may seem like a lot of work on your part, it is worth it in the long run.  If at the end of the 6 months you have satisfied all the terms and conditions, the judge will dismiss the charge without entering a finding of guilt.  However, if you fail to satisfy any conditions of the deferred disposition, the judge will find you guilty and sentence you accordingly.

If you have been charged with a marijuana, narcotic, or prescription drug offense, please contact our office at (804)217-9898 to discuss your charge and what options you may have.  Attorney Charles Homiller regularly represents individuals across the Central Virginia region who have been charged with drug offenses, as well as most other criminal and traffic offenses.

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.

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.

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.

What is Aggressive Driving?

     Having discussed previously the reckless driving statute, I will take a second to explain Virginia's aggressive driving statute.  Virginia Code Section 46.2-868.1, like the reckless driving statute, criminalizes certain driving behavior, much of which has in recent years been referred to as road rage.  Unlike reckless driving, however, prosecution of this law may require an additional element of intent, as I will explain below.

     There are two elements that the Commonwealth must prove to obtain a conviction for aggressive driving.  First, there must be a violation of one or more enumerated traffic regulations.  These include: not driving on the right side of the highway, following too closely, not yielding the right of way, evasion of traffic control devices, improper passing, passing to the right, not allowing a vehicle to pass, speeding, and stopping on highways.  A violation of one of these statutes satisfies the first element for aggressive driving. 

     The second element that the state must prove is that the offending driver was either a) a hazard to another person, or b) committed one of the above offenses with the intent to harass, intimidate, injure or obstruct another person. 

     How is aggressive driving punished, you might ask.  Run of the mill aggressive driving that satisfies the elements listed above is punishable as a class II misdemeanor, meaning a maximum penalty of 6 months in jail, a $1000 fine, and a 6 month suspension of your driver's license.  Additionally, the court may require that you attend an aggressive driving program.  However, if the evidence at trial proves that the aggressive driving was done with the intent to injure another person, the charge becomes punishable as a class I misdemeanor, just like reckless driving, meaning a maximum penalty of 12 months in jail, a $2500 fine and 6 month license suspension.

    Now it would seem that a prosecution of this offense that alleges a defendant was a "hazard" to another person would essentially be a prosecution for reckless driving.  Recall that the general reckless driving statute criminalizes any driving that endangers the life, limb, or property of any person.  Sounds to me like the same thing.  The only difference is that reckless driving is a class I misdemeanor, while most aggressive driving charges are class II misdemeanors.  Which one do you think the police are going to charge you with?  Hint: which one carries a stiffer fine?

Court Dismisses DWI Based On Hospital Records

     On Wednesday, January 25, 2006, Henrico County Circuit Court Judge Gary A. Hicks dismissed a charge of driving under the influence because of a flaw in the Commonwealth's evidence.  Prosecutors attempted to prove the defendant's blood alcohol content (BAC) by introducing hospital records made during the course of treatment.  The Commonwealth argued that this records were admissible under Virginia Code Section 19.2-187.02, which permits medical providers to disclose private healthcare records containing blood alcohol results for the purpose of DWI prosecutions.  Charles J. Homiller, attorney for the defendant, argued that the records should not be admissible, or at least not credible, because the statute circumvents Virginia's implied consent law and in no way regulates the collection of blood like the implied consent law does.

     The case involved a defendant who was involved in a single vehicle accident late at night.  When the police arrived on scene, the defendant was already being prepared for transport by paramedics to the hospital.  The defendant had suffered a significant head injury, which required immmediate trauma care attention.  While at the Virginia Commonwealth University Medical Center in Richmond, Virginia, the defendant was treated for his injuries, part of which required the drawing of his blood.  While in the emergency room, the defendant was questioned by Henrico County Police about the accident and his alcohol consumption.  Based on the responses he received from the defendant, as well as the surrounding circumstances, the officer admitted at trial that he believed he had probable cause to arrest the defendant for driving while intoxicated.  However, the officer did not arrest the defendant at that time, even though he was within the three hour window required by the implied consent statute.  When asked why he did not arrest the defendant and have his blood drawn under the implied consent statute, the officer responded that he knew the hospital would draw it, therefore he didn't have to.

     Instead, two and a half weeks after the accident, the officer obtained a search warrant for the defendant's medical records to produce evidence of his blood alcohol content.  Based on that information, the officer proceeded to arrest the defendant for driving while intoxicated. 

     The implied consent statute, which requires a defendant to submit to a blolod or breath test if arrested within three hours of the alleged offense, prescribes certain qualifications and procedures that must be met and followed during the blood collection process.  While a deviation from any of the procedures will not necessarily render the evidence inadmissible, the credibility of that evidence may be called into question.  Additionally, the implied consent law grants the defendant the ability to request an independent analysis of the blood sample to verify the result obtained by the state.  In this case, however,  the implied consent statute was not invoked because the defendant was not arrested within three hours of the alleged offense.

     In issuing his decision, Judge Hicks stated that he was concerned with the lack of evidence concerning the blood collection procedure.  No evidence was presented by the Commonwealth concerning the qualifications of the person drawing and/or analyzing the blood, the procedure used to collect and store the blood, or the time the blood was collected and tested.  The Commonwealth argued that based on 19.2-187.02, there was no requirement that the state put on evidence concerning these issues.  However, Judge Hicks agreed with defense counsel that the manner in which the blood alcohol results were obtained created enough doubt about the reliability of the evidence as to render it inadmissible.

     This decision is important to persons charged with DUI/DWI in the wake of the controversy over the constitutionality of the per se presumption of intoxication.  This holding would disallow the Commonwealth from merely presenting a person's protected medical records as proof of intoxication without providing evidence that the blood was collected in a suitable manner.  Moreover, it would limit the Commonwealth's ability to issue a search warrant for such records and hide behind 19.2-187.02 instead of following the requirements of the implied consent law.