RECENT BLOG POSTS
What is Constructive Possession of Marijuana?
Photo by Matthew Brodeur on Unsplash I recently had a client whose possession of marijuana charge (under VA Code § 18.2-250.1) was dismissed because the police officer failed to prove that my client was aware of the presence and character of the substance, marijuana, located in the center console of the vehicle he was driving. In my client's case, he did not know that the marijuana was there, since he was not driving his own vehicle. But even if he was driving his own vehicle, it would not mean that he is guilty as charged. As mentioned previously, the prosecution has the burden of proving a defendant's guilt beyond a reasonable doubt: proving that he was aware that he was in possession of marijuana and that he knew or should have known that the substance in his possession was...
Cuccinelli Understands that Justice Does Not Always Require a Conviction
Photo by Karsten Winegeart on Unsplash Does justice always require a conviction? Imagine being wrongfully convicted of a crime you did not commit and then wasting away in jail for 27 years of your life. Then imagine being released from jail but placed on a sex offender registry, being unable to find employment and unable to vote. This is what happened to Thomas Haynesworth, a man wrongly convicted of two rapes. Mr. Haynesworth served 27 years in prison and his good name was tainted, even though he was innocent. As Attorney General, Cuccinelli worked hard to get this man his exoneration and freedom in 2011. He even employed Mr. Haynesworth. As a defense attorney, I resonate with Ken Cuccinelli when he explains: "An Attorney General's job is not convictions. It's justice. And...
May I Concealed-Carry a Handgun into a Bar in Virginia?
Photo by Jessica Kantak Bailey on Unsplash The answer is: Yes, but don't drink if you are carrying concealed! In 2010, Virginia law was changed to allow concealed carrying into bars and restaurants that serve alcohol. (Of course, you will need a concealed handgun permit to be able to do this.) This has not increased violence at the bars in Virginia. It actually decreased it. "According to state police records, not only did gun violence in bars and restaurants not increase under the new law, it decreased by 5.2 percent." - World Net Daily, citing a Richmond Times-Dispatch Study. Still, unless you are a federal, state, or local law enforcement officer, you may NOT drink if you are concealed-carrying at a bar. (You can open carry legally while...
Reckless Driving Defense in Virginia Beach: Justice is Not Cookie Cutter
Photo by Tingey Injury Law Firm on Unsplash Virginia Beach is a jurisdiction that is well known for being very strict in its punishments of reckless driving. Still, Virginia Beach's strictness catches many people off guard. According to this WTKR news report, one driver stated, “I was in criminal court before, and I didn’t go to jail... But I am in traffic court going to jail. That's a little weird.” WTKR compared Virginia Beach with other cities and found that it was stricter than most jurisdictions. Jail time is a real threat for those convicted of reckless driving. As a Virginia beach traffic defense attorney, part of my goal is to ensure that justice is not arbitrary. I am often surprised how different results can be between different judges. In Virginia Beach...
Norfolk’s Commonwealth Attorney is Not Above the Law
Photo by Melody Ayres-Griffiths on Unsplash Norfolk's Commonwealth Attorney Greg Underwood, the chief prosecutor for the city was arrested by a state trooper Wednesday night and charged with three misdemeanors: DUI (Va Code § 18.2-266), refusal to take a breath test (Va Code § 18.2-268.3), and carrying a handgun while intoxicated (Va Code § 18.2-308.012). According to PilotOnline, "Commonwealth’s Attorney Greg Underwood cut through a work zone trying to take the exit off Interstate 264 onto Brambleton Avenue about 8:50 p.m. Wednesday, according to Virginia State Police and court records. Trooper James Ogden was sitting in his patrol car in the work zone when he saw Underwood in his Toyota 4Runner... According to court records, the trooper smelled a strong odor...
Chesapeake Bay Bridge Tunnel Reckless Driving Tickets
Photo by Jenna Lee on Unsplash The Chesapeake Bay Bridge Tunnel is a 23 mile long bridge and tunnel that connects the Delmarva Peninsula of the Eastern Shore of Virginia with Virginia Beach and the greater Hampton Roads area. It is a beautiful scenic drive. While driving on the bridge, you may not see any land in sight. You will feel like you are driving over the middle of the ocean. Drivers are often surprised by Chesapeake Bay Bridge police who camp out at special emergency pull off sections of the bridge, which occur every few miles. Drivers often don't realize how fast they are going since there are no buildings or landmarks to help a driver perceive their actual speed. Understandably, police are concerned about safety on the bridge and officers that are assigned specifically to...
Can Virginia Suspend my Out-of-State (Non-Virginian) Driver’s License?
Photo by Clint Patterson on Unsplash If you have an out-of-state driver's license and are wondering if Virginia can suspend your license to drive, the answer is Virginia can only suspend your privilege to drive in the State of Virginia. The relevant section in VA Code § 46.2-398, states: "For any revocation or suspension of a privilege to drive in Virginia of a person who does not have a Virginia driver's license but who does have a valid driver's license from another jurisdiction, the court shall not order the physical surrender of such license." However, you should be aware that your home state may impose its own penalties when it gets wind of your conviction in Virginia. For example, your home state, be it North Carolina or Florida, may take action when they hear about your...
Can I Get a DUI without Driving?
Photo by Ivan Shemereko on Unsplash Yes, as strange as it sounds, you can get a DUI without the police or law enforcement officer having observed you driving your vehicle. In Enriquez v. Commonwealth, decided in 2012, the Virginia Supreme Court determined what constitutes operating a motor vehicle as a matter of law. The court ruled that having keys in the ignition of a parked car is enough to put an individual in "actual physical control" of a vehicle and affirmed the lower court's drunk driving conviction. If you are intoxicated, you can get a DUI conviction as long as your key is in the ignition switch of your vehicle. The position of the key in the ignition switch is not determinative. This means that you can get a DUI conviction if your key is in the ignition of a vehicle, whether...
Reckless Driving Defense for Military Members
Photo by Diego González on Unsplash Many military personnel and defense contractors live in the Hampton Roads area. I often represent military members in reckless driving defense cases. Many require a security clearance to keep their job and are concerned about having a clearance either granted or renewed after they are convicted of reckless driving. An arrest or conviction of a crime does not automatically disqualify a person for a clearance. Candidates are evaluated on the basis of honesty, trustworthiness, reliability, financial responsibility, and loyalty. There are certain categories of individuals who are unqualified to hold a security clearance. These are drug addicts and abusers, mentally incompetent persons, and former military members who have been dishonorably discharged....
Reckless Driving for Driving on a Closed Ramp to Get on the Highway
Photo by Quaid Lagan on Unsplash Today I helped my client avoid a reckless driving conviction for driving across a closed ramp to get onto the highway. Law enforcement officers have a lot of discretion as to how to charge a driver. My client was charged under the general reckless driving statute, under Va. Code § 46.2-852. The officer could have charged him with failure to obey a highway sign (under Va. Code § 46.2-830) or for evading a traffic control device (under Va. Code § 46.2-833.1). I was able to help my client get his charge reduced to improper driving, thereby avoiding a criminal misdemeanor conviction for reckless driving. My client owned responsibility for making a bad decision to go around the closed gate and the judge believed us when we explained that he...