Virginia Assault Charged in Deliberate Fire Attack

A Virginia man is being held in a case that left a female acquaintance badly burned. 45 year old James Edward Anderson was riding in the passenger seat of a vehicle with a 37 year old female driver and her 12 year old daughter in the back seat.

Anderson allegedly got angry and sprayed the victim with a flammable liquid before throwing a match on her. According to this article from MyFoxDC.com the victim was able to remove her clothing and the child was able to get out of the vehicle before Anderson left the scene in the car.
The victim flagged down a passing motorist who assisted by calling authorities.

What’s not clear is the relationship between Anderson and the victim. The article states that charges have not yet been filed so we can’t say with 100% certainty that this was a domestic assault.

Under Virginia law, a domestic offense doesn’t have to be between two people who are married. If they were in a romantic relationship, this could be a domestic assault.

Even if the two were simply acquaintances, the use of fire in this offense makes it especially heinous. Depending on the extent of the victim’s injuries, there is a chance Anderson could face charges of malicious wounding.

This offense carries a potential sentence of 20 year in prison. If it is determined that the victim could face permanent physical damage, he could face an even more serious charge of aggravated malicious wounding, which carries a potential life sentence.

Other things that may play into the charges Anderson faces and the sentence he may have to serve include his criminal history and the intent of his actions. If it is determined he planned this assault ahead of time, it could exacerbate his charges as well.

Facing charges of domestic assault or malicious wounding is a very serious event. When looking at spending that kind of time behind bars, an experienced attorney is needed to assist with the case.

If you are facing charges of assault and are concerned about the potential outcome, call me today to discuss the details of your case. I can give you some legal advice and perhaps we can work together to make the most of the situation you are in.

Special Legislative Session to Address Melendez-Diaz

The Virginia General Assembly passed H5007 in response to the requirements changes for admission of forensic evidence in the Melendez-Diaz case.

The law formalizes a Notice and Demand process for admission of forensic and chemical evidence in drug and DUI cases where a technician would be required to testify in support of documentary evidence.

The prosecuting Commonwealth's Attorney notifies the defense of it's intent to use forensice evidence without supporting expert testimony. If the defendant objects, it must do so formally in court. As a result, extra time will be allowed for scheduling the court appearance of the expert needed in the case.

Virginia Beach DUI Prosecutions Thwarted By Court Ruling

WTKR in Norfolk Hampton reports on Virginia Beach Commonwealth's Attorney Harvey Bryant, and his believe that a majority of the US Supreme Court "doesn't really know what they're talking about."

Prosecutors across Virginia are dealing with the aftermath of the Melendez-Diaz case, which stated that forensic expert witness testimony must be provided to support documentary evidence in cases where that evidence is used in prosecutions. The Justices determined that the Constitutional right to "confront one's accuser" is more important than the adminstrative hassles of prosecuters who would prefer to enter a document into evidence unchallenged, as has been allowed up until this ruling.

According to WTKR 10% of all DUI cases in Virginia are in Virginia Beach, and there are only 3 people in Virginia that calibrate breath test machines, the kind of forensic evidence witnesses now being sought by defense lawyers, to challenge these cases.

It is certainly likely that Virginia DUI defense lawyers are only asking for these witnesses in most cases, because they know the Commonwealth will have a tough time rounding up these experts, and they can argue for a dismissal or a reduced sentence in a plea-bargain. According to this report, that's already happened in a number of Virginia Beach DUI cases.

But there is a good chance that this is only a temporary tactical advantage for the defense. As soon as Virginia fixes this imbalance and is able to provide the witnesses, in most situations, drunk driving defense lawyers won't bother in cases where the witness is unlikely to provide any reasonable doubt that would help the defendent.

Constitutionally guaranteed rights are inconveneint for the state by design. The easiest thing for the state would be for police to arrest people and sentence them to jail time on the spot. But no one thinks that is a good idea.

The principle of innocent until proven guilty is paramount under the law. And the balance of power has been shifting to the prosecution for decades. This is one small win for the rights of the accused.

Just because it is a hassle for prosecutors is no reason to argue against the rights and freedoms of our citizens as envisioned by our founding fathers.

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If you are accused of a DUI in Virginia Beach or anywhere in Virginia, please contact us for a free consultation on your charges, and what we can do to fight them in court.

Melendez-Diaz to Increase Use of Virginia Drug Courts and DUI Courts?

An Update on the Previous Melendez-Diaz post:

Forensics blogger Harold Levy notes an interesting comment buried in the News Record article. One delegate suggested that this decision will create some better deals for defendants, and may result in increased use of alternate court dispositions that stress treatment.

Drug courts and DUI courts are alternative sentencing arrangements that can give a first time offender a chance to have a case dismissed after a year. If he or she completes a strict drug or alcohol treatment program, and passes mandatory drug tests or abstains from alcohol, the charged are dropped.

Currently Drug Courts in Virginia are still being used on a largely limited basis. A list of drug courts is here. Currently there is only one DUI court in Virginia, in Fredericksburg. Not all courts have drug court alternatives as an option, and not all prosecutors and judges will go along with it in every eligible case, even if it is available.

And there are downsides to accepting a drug or DUI court disposition. If you fail to complete the program, you are subject to retrial in court, and will likely face much stricter penalties than if you simply plead guilty the first time through.

But for those who complete the program, it is often a very good deal from a criminal defense perspective. And it is a good opportunity to get help with an addition problem. The research on drug courts has shown a lot of success.

It would be a shame if it took prosecutors backed into a corner to increase the use of these well-documented successful programs, that reduce recidivism, decrease the need for costly imprisonment, and truly help Virginia citizens fix their addiction problems and their lives.

If you are accused of a DUI or drug possession in Virginia, give us a call to find out your court options, and what we can do to defend you.

Virginia Court of Appeals Says Improper Driving not part of Reckless by Speed

Via VALawyersweekly, the Virginia Court of Appeals determined that Improper Driving is not a lesser included offense of Reckless Driving, and therefore it was legal to charge the person with both reckless driving and improper driving.

In the Appeals Court case, the attorneys argued that the woman should not have been charged with both offenses, since as a lesser included offense, it would be like being charged twice for the same action. For example, you can't be charged with both grand larceny and petite larceny for stealing the same item.

The court rejected that argument, saying the law was specific and clear that reckless driving by speed is merely the act of driving over 80mph, and improper driving requires "slight culpability", which reckless does not. They stated that it was entirely possible to be charged with reckless, but not be driving "improperly".

This ruling has no particular bearing on the common plea bargain in reckless driving cases where a judge allows a defendant to plead guilty to a lesser, non-criminal offense of improper driving.

Court Decision a Boon For Drug Possession & DUI Defense in VA

A recent US Supreme Court decision on rules of evidence is a win for defense attorneys, and is causing administrative hassles for prosecutors across the Commonwealth.

In Melendez-Dias v. Massachusetts, the court ruled that forensic evidence reports, such as those identifying controlled substances in drug possession cases, or certifying Breathalyzer machines in DUI cases, are insufficient evidence on their own. The court determined that this evidence violated what is known as the "confrontation clause", also known as the right to confront one's accuser in court.

The net result of this decision is that prosecutors must have forensic analysts on hand to support this evidence, and the defense attorney will have an opportunity to cross examine the witnesses. The practical implication of this is that the Commonwealth only has a small number of experts available to testify in court, and there are thousands of potential cases per year where this documentation evidence has been used previously.

Virginia State Legislators Scramble to Adjust to the Reality of Melendez-Diaz

As noted in the Daily News Record and many other Virginia newspapers, the Melendez-Diaz decision is driving a special session of the Virginia General Assembly on Aug 19 to address the issue. Legislators are concerned that if they don't have an answer quickly, judges many have to dismiss many drunk driving and drug possession, if the prosecutors aren't able to provide the necessary witnesses.

Governor Kaine has stated that the situation may be able to be addressed administratively, without new legislation necessary. Commonwealth's Attorneys will have to first file notice of intent to use the documentation without the required witnesses. Presumably many defense attorneys will object, but that legal process will probably buy them time to arrange and schedule the expert witnesses.

The Commonwealth will likely need to provide emergency funding for additional forensics experts to testify in courts across the state. This will probably be the product of the special legislative session.

The bottom line is, this chaos will create some defense opportunities for lawyers in Virginia DUI and drug possession cases.

And if you are an unemployed forensics expert, stay by your phone.

Fines Going Up on I-81?

According to an article in the Daily News Record, there is an effort to designate part of Interstate 81 in Page and Shenandoah County as a Highway Safety Corridor, due to some recent serious accidents.

If approved, the designation of a Highway Safety Corridor by the Virginia Department of Transportation, the Commonwealth would impose doubled fines for speeding, reckless driving, and other traffic citations in that area. There is a full analysis process that must be completed before such a designation is approved.

There has been spate of serious accidents along that stretch of I-81, many involving tractor trailers, whose drivers are a primary target of Highway Safety Corridor enforcement penalties.

Reckless driving fines range from $300-$500, so doubling that fine is significant. Of course, a reckless driving offense is also a criminal charge, so the implication of a reckless conviction are far beyond the substantial costs involved.

UPDATE: Another good story on this stretch of -I81 and the rate of accidents in the Northern Virginia Daily here.

VA Police Chief Sentenced on Drug, Gun Charges

The law turns a blind eye to no one. Of course there are cases where people in power break the law for years unnoticed but the majority of the time their indiscretions come to light and they are forced to face the music, just like the rest of us.

Former Damascus Police Chief Tony Richardson had pled guilty to charges in March and last October. The charges were part of a plea agreement according to this WVEC brief.

Richardson admitted he sold methamphetamines and prescription drugs while he was police chief. He was officially charged with 8 drug offenses and one gun charge. The sentence called for 5 years on each drug charge and 2 years on the gun charge.

Likely part of the plea agreement, the judge, Judge Byrd Sergent in Washington County Circuit Court suspended the bulk of the drug sentences. What was left was a 5 year prison term that Richardson is set to serve.

A sentence suspension is not uncommon and is particularly common in cases where the defendant has no criminal past. By suspending the bulk of Richardson’s prison term, the judge allows him to serve less time while keeping supervision over him for a period following incarceration.

A suspended sentence typically means there will be a period of probation or post release supervision after the prison term is served. During this supervision period, Richardson will have to abide by certain terms like staying drug free and not getting in additional trouble.
If Richardson abides by the terms of his supervision after his prison term, the supervision period will be allowed to expire. However, if he were to violate the supervision terms, his sentence could be activated and he could be sent back to prison.

Probation and parole supervision are typically very effective methods of control for the criminal justice system and they are usually more desirable then a prison sentence for the defendant.

If you are facing criminal charges and want to know if you might be eligible for probation instead of a prison term, give us a call. There are several factors that play into how a judge determines your sentence and our attorneys can help you evaluate your case.