A very thorough and relatively balanced look at Virginia’s new ignition interlock law from the Washington Post – Is the new law too tough?
Starting on July 1st, anyone convicted of any first offense DUI will require a ignition interlock device installed in their vehicles in order to get their license restored. Previously the law required an interlock only in multiple offenses or other high breath test failure cases, but now it will cover anyone.
An ignition interlock is a “rolling breathalyzer”. You must provide a clean breath sample (alcohol free) in order for your car to start.
With any legal change, there are winners and losers.
The big question is: how much is public safety improved by requiring these systems to first time offenders who may have made a one time mistake, blowing just barely over the legal limit?
Obviously they are big losers in this decision. The courts may be a loser too, in that it is very possible a lot more DUI charges will go to trial. If a person for any number of reasons can’t get an ignition interlock, such as they have to drive different vehicles for their job, then it may make sense to take a chance in court to fight the charges. Even if the chances of winning are slim, some people will have nothing to lose by taking a gamble.
Interlock manufacturers and installers are also big winners. They now have state mandated customers.
But it remains to be seen how much this will truly help the citizens of the Commonwealth of Virginia make a measurable improvement in public safety.
How a Few Beers with Friends Can Go Wrong
A Suffolk man is facing serious criminal charges after being pulled over in Portsmouth this week, in a good illustration of how quickly life can change when you break the law.
Twenty-eight year old Michael Smith made a u-turn and then stopped at a green light on London Boulevard and Broad Street just before 3 p.m. on Thursday afternoon. His behavior prompted a traffic stop from a Portsmouth police officer.
The officer found Smith was under the influence of alcohol and failed “several sobriety tests.” According to WAVY-TV 10, he was then charged with felony DUI, indicating he had previous DUI convictions on his record. But that isn’t all.
The officer found a loaded AR-15 assault rifle in the vehicle, on the passenger seat but hidden from view. Smith will also face charges of carrying a concealed weapon while intoxicated.
While the news reports provide no backstory, it’s easy to see how a few afternoon beers with friends could result in a life-changing arrest. Sure, not very many of us ride around with an assault rifle on our passenger seat, but many Virginians carry weapons, whether lawfully or otherwise.
Maybe you got a promotion and had a few afternoon drinks or perhaps you were at a barbeque. Once you get behind the wheel, however, your celebratory day has the potential to turn tragic.
DUI charges can carry life changing penalties, even for a first-time offense. You could be spending time in jail, paying hefty fines, and losing your license– all for a few drinks with friends.
If you have a weapon with you, even if you are licensed to carry it, you could face additional penalties.
More than likely, Smith didn’t weigh the risks of driving intoxicated before he got behind the wheel. If he had, maybe he wouldn’t have started the car, or perhaps he would have—at the very least—put his gun safely in his home.
Most people arrested and facing criminal charges find themselves in situations they didn’t plan for, those they didn’t weigh the risks on or make a conscious decision at criminality. After the fact, most regret the actions that ultimately led to their arrest.
Fortunately, if you are caught violating a law and charged with a crime, you have options. Your regret for the incident could cause the judge to have some leniency, and working out a plea bargain with the prosecution could help you avoid jail time. Discussing all of your options with a criminal defense lawyer can help you determine the best course of action.
Violent Crime Down; Drug Offenses Up in VA
Crime statistics from 2011 were released in the annual crime report Crime in Virginia this past week. According to the report, violent crime was down last year, though drug offenses were on the rise.
The report, released in conjunction with the Virginia State Police, says homicides fell to 3.77 per 100,000 population, after being at 4.61 per 100,000 in 2010. Robberies fell 4%.
Violent crime overall was down 6.2% since 2010.
Property offenses also dropped 2.2%. This includes burglaries, larcenies, and motor vehicle thefts.
Many states and major metropolitan areas have experienced unexplainable drops in crime over the past several years, shattering the long-held belief that crime rates went up in times of economic hardship. Experts can’t explain why this is.
The only crime segment that seemed to rise, according to the report, was drug offenses. In 2008 and 20009, such offenses fell. But in both 2010 and 2011, they rose again. This past year, they climbed 7.1% since the prior year.
Drug offenses, including everything from marijuana possession to heroin distribution, cover a lot of areas. And because drug problems affect nearly all segments of the population, no one is exempt from possible arrest.
Interestingly, the boom in prescription drug use has led to an increase in heroin usage, even among suburban and rural youth. In the past, when heroin was popular, it was mainly seen in urban settings. But the use of prescription opiates has driven people from the suburbs to seek out the far cheaper and more potential alternative.
The Crime in Virginia report is issued annually by the Virginia State Police. It is designed to provide a snapshot of crime across the state, including the hours at which crimes are committed, who the victims are, and offender characteristics. Much of this information will be shared with the federal government in their annual reports as well.
So what does all of this mean for the person accused of a crime? Not a whole lot. Prosecutors will still go after the “bad guy” with zeal, and judges will still continue to penalize those adjudicated guilty with a heavy hand.
If you are accused of a criminal offense, you need someone working on your behalf in this system where it can seem like everyone is against you. Contact us today for a free consultation and to see how we might be able to help.
VA Exoneration Law Has Flaws
Ideally, when you are innocent of a crime, you shouldn’t have to serve prison time for it. Even if you are convicted, which does happen, there should be safeguards in place to ensure you have access to relief through the appeals process. This is an ideal situation. Unfortunately, in most states we are operating at far less than the ideal.
The Virginia law that allows convicts access to exoneration is being criticized as being poorly written. Virginia Attorney General Ken Cuccinelli, in a position that normally backs all conviction, says that parts of the law are definitely “worthy of reconsideration.”
According to the Richmond Times-Dispatch, the flaw isn’t involving cases where there is DNA or similar evidence, but in those where there is only non-biological evidence. In such cases, the attorney for the allegedly wrongfully convicted must prove to the courts “by clear and convincing evidence that no reasonable juror would find beyond a reasonable doubt” that this person committed the crime.
In discussing the hurdles one has to go through to overcome a wrongful conviction, Cuccinelli said, “It needs to be a high bar, by the process by which it’s handled and the hoops you have to get through, I think, are worthy of reconsideration.”
The issue with the law concerning nonbiological evidence is that it includes both a “clear and convincing” standard and also a “beyond a reasonable doubt” standard, both of which are pretty high. In addition, the rule is written in an awkward manner, making it even more difficult.
Interestingly Cuccinelli was one of the state senators at the time who wrote and passed the law.
The most recent case, and only one of two to have successfully used the law was that of Thomas E. Haynesworth. Haynesworth served 27 years in prison for several crimes he didn’t commit. He was convicted in 1984 at the age of 18 for attacking four women. DNA evidence later proved his neighbor, who resembled him and had his same blood type, was actually guilty in at least two of the attacks. There was no DNA evidence in the final two cases.
It took several years and much work for Haynesworth to be exonerated for the other two crimes, but it did happen and he was only the second in the state to be granted a writ of actual innocence based on non-biological evidence.
Cuccinelli said the case proved, “the system isn’t perfect, and neither are we.”
When you are mistakenly accused of a criminal offense, you never think it would result in you spending years behind bars. You assume that things will be worked out long before then.
Whether you are wrongfully accused of violating a protection order or if they “got the wrong guy” in a robbery case, you need a tireless advocate working on your behalf. Call today for a legal consultation.
Charlottesville man in Police Chase
While few police stops are quite that exciting or dramatic, a recent attempted police stop resulted in a police chase in Augusta County, by vehicle and on foot, resulting in an overturned vehicle and minor injuries for the defendant, and a trip to the Middle River jail.
The news report at NewsLeader.com doesn’t say why the police were originally attempting to pull over Trevis H. Johnson, 28, of Charlottesville, but he was later charged with reckless driving, drug possession, and eluding police.
Typical police stops for reckless driving, the likely cause for the original police attention to the defendant, result in a criminal citation for a Class 1 misdemeanor. This charge is a serious offense, but there are often opportunities to challenge a criminal reckless charge in VA courts.
Getting this offense reduced to an improper driving civil citation is a real win, and is something that is regularly accepted by judges if your attorney can make a successful argument.
If you flee the police, and roll over your vehicle, then run away on foot however, avoiding a reckless driving penalty is probably not going to happen. But you definitely need a lawyer, even more urgently.
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More on questions about reckless driving.
Same Burglary Case, Dramatically Different Sentences
The Daily Press ran a brief snippet of a story online this week, highlighting how two defendants in the same case, facing many of the same charges, can walk away with vastly different outcomes.
The case involved a home invasion. The two defendants were 20-year old Samual Goodwin Sanchez and 21 –year old Robert King Via, Jr. While the details of the case weren’t published, both men were charged with forcing themselves into a home and holding four people at gunpoint before making off with cash.
Via was found guilty at trial of conspiracy, armed burglary, robbery, firearms charges, and four counts of abduction. Sanchez, on the other hand, pled guilty in a plea agreement to charges of robbery, abduction, and firearms charges.
Sanchez was sentenced to 13 years in prison. Via, on the other hand, will face sentencing in a few months. But, the jury who convicted him has recommended a sentence of 128 years plus one day for his role in the crimes.
The Daily Press points out that judges rarely deviate much from sentencing recommendations from a jury, despite the fact that these recommendations are made by people who aren’t educated in the law and don’t have access to the state sentencing guidelines, “designed to help equalize sentences around the state.”
In addition to not having access to these important guidelines, jurors aren’t given any guidance on whether or not the sentences for each charge would be served consecutively or concurrently, a matter that could dramatically change the total number of years served.
There is a very good chance that Via will face a sentence that is numerous times longer than his codefendant’s. Part of that is because the judge will likely stick close to the jury’s recommendations and because Via chose to go to trial rather than admit fault in a plea agreement.
The vast majority of criminal cases, around some 97%, are resolved by plea agreement. A plea agreement is where you, the defendant, agree to plead guilty to at least some of the charges against you in exchange for a more lenient sentence or even reduced charges. This is what happened in Sanchez’s situation and no doubt at least part of the reason he is looking at a far lighter sentence.
If you are facing criminal charges and unsure of the sentence you face or the likelihood of a beneficial plea agreement, contact us today.
Gun Law Changes Likely In VA This Year
More than 40 weapons bills are before the legislature this year, the majority of which will expand the people’s ability to purchase, own, and use weapons. This is because of the changing political atmosphere within the state. With more conservative Republicans in the House and Senate, relaxing gun control laws will have more support.
The most “high profile” change, according to the Washington Post, is doing away with the one-per-month handgun purchasing limit. Those who support the measure say the law, which was instated in 1993, was designed to lessen the role that Virginia weapons’ dealers played in the East Coast gun trafficking system, and that it is simply no longer required with the new laws on the books and all of the exceptions that have been written in.
Sen. Charles W. Carrico, (R-Grayson), says the law has “outlived its purpose,” particularly because the state now uses background checks that it didn’t when the law was initially passed. Also, law enforcement, gun dealers, and people with concealed-weapons permits were allowed to sidestep the law anyways, creating a “piecemeal” approach to gun control.
Though similar legislation to repeal the law has died in committee over previous years, this year is different. It has made it out of committee and passed both the House and Senate. It now awaits the Governor’s signature.
Among other changes to the state’s gun laws are doing away with the fingerprint requirement for those seeking concealed weapons permits. Lawmakers have already voted to do away with the current law, which requires fingerprints as part of the application process.
Also, the House has passed a bill that would allow government employees to store weapons in their personal vehicles while parked at work. This new law requires the gun to be kept inside of a container and the vehicle to be locked. The container, however, does not have to be secured and ammunition does not have to be kept out of sight.
Currently the House is evenly divided among Republicans and Democrats, and Republicans are often those that back more lax gun laws. Though gun control advocates are unhappy with the changes, many of the proposed laws are not in their first time through the legislative gauntlet; and this time they have a much better chance at passing.
But even with gun rights advocates in both houses of the legislature and a relatively gun-liberal Governor, you can’t expect more lenient treatment in the courts if you are charged with a weapons offense. If you are facing charges for something like carrying a concealed weapon or being a felony in possession of a firearm, we may be able to help.
Action on Virginia DNA Cases Slow at Best
Last month we reported on the prospect of many old cases being revived by newly discovered and tested. But it seems little is being done to notify or rectify any situations where the DNA points to a possible wrongful conviction. According to the Richmond Times Dispatch, 29 felons have still not been notified that the potentially exonerating DNA exists in their case.
The Virginia Department of Forensic Science, through the testing of hundreds of DNA samples and the digging through over 500,000 old case files, discovered 76 cases in which newly found DNA excluded the felon convicted in the case. In other words, DNA at the scene was not theirs.
The impact of such a finding would, of course, depend on the facts of the case, and not always would it point to a wrongful conviction. The chance, however, exists, and if the chance is there, the convicted person has a right to know.
Yet, 29 people have not been notified of the evidence.
Those who are still incarcerated were easy to locate. Those who were long ago released, however, are posing problems for the state. One such person, listed as “missing” on the Department of Forensic Science’s list was found with a simple Internet search, living only 5 miles from the place where he was arrested for a 1978 rape.
Bennett S. Barbour served 4 years in prison for a rape he didn’t commit, and it was this study digging into old case files that ultimately exonerated him. But, the state new about this since June 2010, and he just found out last month.
“We haven’t exactly hear reports of any commonwealth’s attorneys making some announcement about what they claim to be doing in one of these cases,” says Brandon Garrett, a professor at U.Va.’s School of Law, who believes prosecutors aren’t doing enough to resolve any of these old cases.
In most of the cases, the local prosecutor is notified of the DNA evidence and the state then backs off, leaving any further action to the prosecutor. If that prosecutor doesn’t have the time, or doesn’t make the time to track down the felon, they never hear about the evidence or their potential exoneration.
Letters have been mailed out to all those for which an address could be found. But, according to Garrett, those letters are confusing and may even come across as threatening. They do not tell people that they have been excluded as suspects by DNA evidence, and instead merely say that DNA evidence has been located and tested, providing a telephone number to the Mid-Atlantic Innocence Project if further help is wanted.
Being accused of a crime you didn’t commit is frightening. Being convicted of that offense is a tragedy. It seems the state owes these people more than a half-assed attempt at locating and a form letter, but they don’t see it that way.
If you are accused of a crime you didn’t commit—whether it’s a drug charge or something far more serious—we may be able to help. Contact our offices today to discuss the details of your case and the options that are available to you.
Virginia DNA Study Shows “Surprising” Potential for Wrongful Convictions
In the days before CSI showed us the forensic value of a piece of chewing gum, the science that led to convictions was far less error-proof. Things like blood typing and teeth marks were about as high-tech as you could get in fingering a suspect. Now, however, science has changed and because of this, the potential for wrongful convictions has likely fallen. But a look back on past cases may show just how common such mistakes were back in the days before DNA testing became so commonplace.
A unique opportunity to test DNA samples on past cases arose when a “trove” of old case files including biological evidence was uncovered in the Virginia Department of Forensic Science. The case files dated from 1973 through 1988 and hadn’t yet been put through the DNA wringer.
On a federal grant, the samples were sent to the Justice Policy Center at the Urban Institute for evaluation. Those samples are still being tested and compiled and the final report will likely come later in this year.
Estimates, however, show that the rate of wrongful convictions during the time period of those case files to be around 6%, a shockingly high number. “I would have guessed an error rate of 1 or 2 percent,” said Samuel R. Gross professor of University of Michigan Law School and former defense lawyer. “This is a very big surprise.”
Thirty-seven cases out of the original 638 are said to possibly support exoneration, and definitely warrant further investigation, according to John Roman, senior fellow with the researching Justice Policy Center. As of yet, nothing has been done with those cases in the way of exonerations, however.
Currently, researchers are running with those 37 cases to courthouses and sifting through old files to verify if mistakes were made and if the DNA evidence could eventually lead to exonerations in these decades-old cases. After all of the evidence is gathered, it will be presented to “an expert prosecutor, a defense lawyer, and a former judge” to for final evaluation.
The use of DNA evidence isn’t error proof, but it’s far more reliable than blood typing and could mean the difference between an innocent person spending the rest of their life in prison, or living it out normally. The time period being looked at by this study is particularly interesting because such evidence wasn’t used back then.
Though DNA isn’t available in all cases, other evidence can similarly eliminate you from a suspect pool. Discussing your case with a defense attorney is the first step in learning how the evidence in your particular situation can help or hurt you in court.
If you’ve been accused of a criminal offense in Virginia, contact our offices today to discuss your case.
“Spice” Makers Skirt New Laws
Last year, Virginia was one of several states to ban the product known as “spice”, marketed as a legal alternative to marijuana. But law enforcement officials are having a difficult time holding anyone accountable under the new law as those companies making the spice have adapted their formulas to get around legal penalties.
The law, as seen here, banned ten different chemical ingredients that were commonly used in “spice”. These ingredients, known as cannabinoids, reportedly mimic marijuana and provide a fast high to those who smoke it. Since the law was passed, spice makers have gone back to the labs and reformulated their products with alternate cannabinoids.
According to the Washington Post, Virginia’s forensic lab tested 468 suspected spice samples between July and August of 2011. Only 101 of those samples contained the banned substances. In June, police in Falls Church raided a tobacco shop and seized 1,700 packets of spice. None of them contained illegal cannabinoids.
Spice was banned because of the suspected dangers of using it. Because it was easy to find and relatively cheap, young people especially were smoking it and getting high. But, many were also experiencing negative side effects like seizures, vomiting, accelerated heart rate, anxiety, and hallucinations. Of course, these effects were only seen in a fraction of the cases, but enough that lawmakers and parents wanted the substance removed completely from the market.
Soon after the law was passed, police made a very public raid on a Hampton Roads head shot. They seized 842 spice packets and they were lined up for the media to take photos of. But no one was ever charged with a crime in this raid because after the packets were tested, we learned there was nothing illegal about them.
The spice law contains language that any substance containing “other” chemicals that mimic these banned cannabinoids can also be prosecuted. But, the state says not enough scientific evidence is available on these newer cannabinoids being used. In other words, charges filed under this aspect of the law wouldn’t likely hold up in criminal court.
Currently, if you are caught in possession of spice that contains one of the banned cannabinoids, you can be charged with a Class 1 misdemeanor. If you are accused of selling it, it’s a felony charge. But, there’s a good chance that if you purchased it recently, it won’t fall into those substances banned under the law.
If you are charged with possession of spice or even possession of marijuana or another controlled substance, contact us for help.