RECENT BLOG POSTS
What is the Likelihood of a Suspended License for Reckless Driving?
If you are convicted of reckless driving in Virginia, a class 1 misdemeanor, penalties may include up to 6 months suspension of your driver's license, jail for up to twelve months, and a fine of up to $2,500. Many of my clients are trying to avoid a reckless driving conviction altogether, which can harm employment opportunities. Photo by Meritt Thomas on Unsplash If a conviction is given, a judge may decide to suspend your license. (Note: it is possible to appeal a conviction if you had a harsh result and you act quickly.) A judge has wide discretion in administering penalties for reckless driving. He can pick and choose. He can give jail time or he can suspend your license. He may do one and not the other, or he may do both! Previously, I have discussed the likelihood of jail,...
Negotiating a Null Pross (“Nolle Prosequi”) or Dismissal Pretrial
There are times that I am able to persuade an officer to null pross or dismiss my client's case simply by talking with him before court. (Both a null pross or a dismissal are good results. I have written about the difference between a null pross and a dismissal here.) This is a win without risk. Photo by Tingey Injury Law Firm on Unsplash This is wonderful for my client because the judge does not end up hearing the facts of the case. The judge need not weigh the evidence and determine guilt. A police officer that is persuaded by my request can simply make a motion to null pross or a motion to dismiss my client's charge when the judge calls the case. If I need to, I tell the judge that I do not object to the officer's motion. I go to court knowing that when I...
Reckless Driving Charges for 30 Miles Over the Speed Limit Reduced in Norfolk and Chesapeake
DISCLAIMER – EACH CASE IS UNIQUE AND CASE RESULTS DEPEND ON YOUR INDIVIDUAL SITUATION. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER. A few days ago, I defended two different clients charged with reckless driving for going 30 miles per hour over the speed limit. One case was in Chesapeake General District Court and one was in Norfolk General District Court, but both received favorable dispositions. Both were reduced to speeding tickets. My clients did not receive a criminal conviction. They were able to avoid a class 1 misdemeanor and penalties associated with that, which can include jail time or a suspended license. Under Virginia law, reckless driving can be charged for going 20 or more miles above the speed limit. These outcomes...
Fighting DUI Checkpoints
Photo by Jonathan Cooper on Unsplash If you were stopped at a traffic checkpoint and charged with a crime, it is important that your defense attorney make the Commonwealth prove its case. Any evidence which was seized in violation of the Fourth Amendment needs to be suppressed. There are common defects in DUI checkpoints, such as problems in the roadblock plan or overflow plan. The Fourth Amendment protects us from unreasonable search and seizure. Mr. Justice Jackson explains that: "These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure...
Virginia’s Move Over Law
Photo by Gene Gallin on Unsplash Drivers in Virginia should be aware of Virginia’s Move Over Law which was written to protect police officers. Virginia Code §46.2-921.1 explains that a driver must move over a lane when passing a trooper or another law enforcement officer’s stationary vehicle when the vehicle is "displaying a flashing, blinking, or alternating blue, red, or amber light or lights." The law was expanded in July of 2010 to apply to other emergency response vehicles, like ambulances and tow trucks, as well as highway maintenance vehicles. The code section explains that if "changing lanes would be unreasonable or unsafe", the driver should "proceed with due caution and maintain a safe speed for highway conditions." I interpret this to mean that you...
SCOTUS Approves of a Traffic Stop Based on Anonymous 911 Tipster
Photo by Alexandre Boucher on Unsplash On April 22, 2014, the United States Supreme Court determined that an anonymous tip from a 911 caller alleging a traffic violation may be enough to establish reasonable articulable suspicion for a law enforcement officer to perform a traffic stop. The Court's ruling in Prado Navarette v. California, 572 U.S. ____ (2014), a 5-4 decision, will be sure to impact DUI and other traffic stop cases. Unfortunately, this case expands police powers and infringes on our freedom to come and go without police interference. In this case, a law enforcement officer responded to a dispatcher who relayed a tip from a 911 caller reporting the make, model, and license plates of a car that "ran the reporting party off the roadway." This officer spotted the car and...
Collateral Attack on a Driving Under a Suspended License Charge to Avoid Jail
(July 1, 2020 Update: Virginia Law will no longer require mandatory jail time for a 3rd or Subsequent Driving Under Suspended Offense) A judge has a lot of discretion in determining the punishment for driving with a suspended license. As a class 1 misdemeanor, a judge can sentence a driver with jail time of up to a year and a fine of up to $2,500. However, a third driving under suspension (DUS) conviction is particularly unique. Virginia Code § 46.2-301 explains that in regards to a DUS conviction, "[a] third or subsequent offense occurring within a 10-year period shall include a mandatory minimum term of confinement in jail of 10 days." Photo by Matthew Henry on Unsplash There may be defenses to a driving under suspension charge that may allow a driver to be found not guilty,...
What Constitutes “Operating” a Vehicle for DUI/DWI in Virginia?
Virginia Code § 18.2-266 makes it unlawful for any person to "drive or operate any motor vehicle... while such person is under the influence of alcohol." If you were charged with a DUI and were not driving at the time of your police encounter, it is very important to determine if the Commonwealth can prove that you were "operating" a motor vehicle. Photo by Kishor on Unsplash In Enriquez v. Commonwealth, the Court of Appeals of Virginia explained that "operating" a motor vehicle means that you have actual physical control of the vehicle. The Court explained that it was making a rule that "when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle...
Getting a Restricted Virginia Driver’s License After an Out of State DUI
If you possess a Virginia Driver's License and get a DUI conviction out-of-state, you may be in for a surprise. Following a driving while intoxicated or DUI conviction in another state, the Virginia DMV will automatically suspend a license for one year when they receive notice of an out-of-state DUI conviction. Virginia can be harsher on you than the state in which you received a DUI. For example, if Florida convicts you of a DUI and suspends your license there for 6 months, the Virginia DMV has no problem with suspending your license for one year. Photo by Matt Duncan on Unsplash To get a restricted license, you would need to petition the court in the jurisdiction where you reside for a restricted license. A restricted license is very limited. You can not even drive to get...
Driving While Intoxicated Does Not Equal Reckless Driving
I have had clients charged by police officers with Driving While Intoxicated, that received a "wet reckless" disposition from the General District Court judge when we kept the BAC certificate out under the 3 hour rule. While this was a good result, we recommended to our client that he appeal the result and take his case to trial in the Circuit Court. My client gets a de novo or brand new trial in the Circuit Court. On appeal, the Circuit Court considers whether the evidence was sufficient to find my client guilty of reckless driving, not DUI, since the charge was already reduced to reckless driving in the General District Court. In the Circuit Court, we've had clients get a dismissal of their reckless driving conviction based on the logic below. Photo by Clark Van Der Beken on...