Virginia Criminal Defense

Virginia Criminal Defense Lawyer

Call For A Free Legal Consultation

(888) 205-9314

Mistake in Allowing Reckless Charge Dismissed For Commerical License

A judge in Richmond is under fire for allowing a reckless driving charge for a commercial bus driver to be dismissed after completing a driving school program. That bus driver is facing new charges for reckless driving after hitting and killing a pedestrian with her bus.

Under the law, if a person has a commercial driver’s license in Virginia, they are ineligible for a reckless driving offense dismissal after attended driving school, under a law passed in July 2008. The original reckless driving incident occurred in May of this year.

Though the defendant clearly checked off that she had a commercial driver’s license, the judge still allowed her to take a Second Chance Driving Improvement Clinic. After satisfying the terms of the driving class, on Sept 10th, the reckless driving charge was dismissed on Sept 30th.

The defense attorney quoted indicated that is it not uncommon for judges to miss laws that have been recently passed, especially when the facts of those laws come up infrequently.

If the reckless driving offense had stood, and she had not been allowed the opportunity for the dismissal, she likely would have lost her job as a driver for the GRTC Transit System. However, she also violated company policy by not notifying her supervisor of the reckless driving charge.

It is certainly possible that she would have been fired from her job if she had followed that procedure, and if the judge had refused to allow for the dismissal, she would have lost her driver’s license and not been driving.

Whenever there is a tragedy like this, people are always looking for someone to blame. It is impossible to say what would have happened in either of those cases, but it is clear that multiple administrative failures led to a circumstances where someone was killed.

Virginia Man Sentenced to Nearly 2 Decades in Prison for 2 Assault Cases

Thirty year old Shawn Michael Banks was sentenced to a total of 18 years in prison following convictions of stabbing a relative in July of 2008 and assaulting an officer at the jail in November 2008. According to this article from the Culpepper Star Exponent, he is expected to serve at least 10 of those years.

On July 26, 2008, the victim in one of the cases arrived at her grandmother’s apartment around noon. She was sitting at the table when Banks stabbed her in the back. Sarah Banks retreated to a back bedroom while Shawn Banks pursued her with a knife.

The police found the victim laying face down and bleeding when they arrived on the scene. She was treated for injuries to her ribs and lungs from the incident. In total, Ms. Banks spent 9 days in the hospital for her injuries.

Because of the injuries and the weapon used in this assault, Banks was charged with Malicious Wounding and sentenced to 15 years in prison.

The second assault case arose when Mr. Banks spit on a deputy working at the jail where he was being held. For this assault, Banks was sentenced to an additional 3 years in prison.

These assault crimes are quite serious, as the sentence shows. Many other assaults are less damaging but still carry harsh penalties. Basic Assault and Battery is considered a Class A misdemeanor and carries a potential one year jail sentence.

Under Virginia law, who the assault victim is can increase this penalty or add a mandatory minimum sentence to it.

Facing charges like these can change your outlook on life. When the potential for spending years behind bars exists, you can become remorseful and reflective. Whatever the situation that led to your charges was, I hope to help you.

Call us today to discuss the details of your case and to receive some free legal advice.

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.

—
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.

Running the Numbers on Hiring an Attorney for a Reckless Driving Citation in Virginia

Many people faced with reckless driving wonder if it is worth the money to hire an attorney.

Feel free to use this image just link to www.rentvine.comFor the least serious reckless citations, (reckless by speed / speeding over 80mph), the ticket is probably $500 or less by itself. However, you can also expect points on your license, and possibly several thousand dollars in insurance hikes.

Not to mention the personal cost to you and future impact on your life that admitting to a criminal conviction may have.

And for some reckless driving offenses, there is a real risk of jail time in many counties and courts in Virginia, including Fairfax.

An attorney can, in many cases, get criminal charges dropped to civil penalties. The difference between a misdemeanor reckless charge and a civil improper driving citation and fine could save you thousands. And you may just be able to get your charges completely dismissed.

Another cost savings is that we can often appear in court on your behalf, without you needing to show up, and take time off from work. This is especially a huge consideration for many of our out of state clients who happen to get nabbed while driving through the Commonwealth. And we know that the VSP is a big fan of out of pulling over drivers with out-of-state plates.

Of course every case is different, and no attorney can guarantee you any result. But we will give you an honest assessment of what we think your chances will be in court.

We’ll run the numbers with you, quote exact legal fees, and estimate our chances of successfully fighting your case, and what that could save in your wallet.

After a free consultation, you can decide for yourself if you think having an attorney fight your reckless driving charge is a smart investment.

Virginia Beach Biker In On Major Marijuana Bust

Champion mountain biker and local native Mellissa “Missy” Giove was arrested and is now facing serious criminal charges in New York. The case involved several people, several states, and a speedy investigation resulting in the arrests that took place earlier in the week.

Giove is known for being a world class athlete with funky hair. She is a Va. Beach resident and her Virginia home was searched following the New York bust.

According to the Associated Press, it all started with a pick up in California. Allegedly, Giove and an assistant made the drive from California to Iowa in a rental truck towing a trailer filled with marijuana. Giove got on a plane in Des Moines heading to New York and her assistant drove on.

Tamara Geagley, the assistant, was pulled over in Illinois where police learned about the transport. She told police that Giove had hired her to complete the drive and meet up with her in New York. Police sent Geagley on her way and hoped to intercept Giove with the marijuana when it reached its final destination.

Police watched Giove get off the plane in NY and meet up with Geagley. Geagley was dropped off and Giove met with Eric Canori. After unloading some of the marijuana at Canori’s home police stopped Giove, who was still behind the wheel of the truck, and made their arrest.

Along with cash, police confiscated over 300 pounds of marijuana. Currently Giove and Canori face charges of possession with intent to distribute in New York. They may face federal charges as well. While Giove is facing charges in New York, there is no telling what Virginia authorities may have found in her home.

The criminal charge of possession with intent exists in most states, including Virginia. This is typically a very serious felony charge. The penalty faced depends largely on the amount of marijuana that the accused was in possession of.

In Virginia, if you are charged with intent to distribute over 5 pounds you face a possible 30 years in prison. That is a tremendously serious penalty to have hanging over your head.

When facing serious drug penalties, an experienced and aggressive attorney is crucial. I can fight for your interests and make certain that your side is heard in court. Call us today so we can discuss your case and how best to handle it.