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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.

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.

Gun Crimes In Bars Down Despite New Law That Allows Concealed Weapons

Advocates of a law that took effect last July are demanding that those opposed apologize for raising a stink over potentials that never came to fruition. The law allows licensed concealed weapons carriers to take their weapons into bars and restaurants. Since the law took effect, there has been no noticeable increase in associated crimes as the opponents said there would be. Instead, firearm related crime in these establishments has actually dropped.
According to the Richmond Times-Dispatch major crimes involving firearms in Virginia restaurants and bars actually fell 5.2% in the past year when compared with the prior year when such weapons were not allowed at all. Of those crimes that were committed, the news says they were “relatively minor” and usually involved people who weren’t licensed concealed weapons carriers at all.
When the legislation was pending, opponents said the passing would result in a free for all, with gun crimes in such establishments going through the roof. And while they might be right about guns and alcohol not mixing, the law says those with a concealed weapon can’t drink while in the bar, but merely be present. It doesn’t, however, stop those who carry visible weapons from drinking.
Virginia is now one of 43 states that allow concealed weapons in restaurants that serve alcohol. One supporter of the law and the president of the Virginia Citizens Defense League says the decrease in crime is not surprising and calls it a “big yawn.” “The numbers basically just confirm what we’ve said would happen if the General Assembly changed the law.”
One thing the Times-Dispatch doesn’t point out is that crime overall has declined over the past calendar year. The decrease of firearms offenses in restaurants and bars isn’t likely because of the new law. Instead, the law more likely has had a neutral effect on crime rates.
In Virginia, firearms laws are complex and confusing, particularly when it comes licensed carriers. There are laws pertaining to how you carry your weapon, where you carry it, if you show it, and definitely if you fire it. The penalties for licensed firearms owners are often comparable to those for unlicensed owners. Understanding the differences in these laws and the slight nuances can be difficult for even the most savvy gun owner.
If you are charged with a firearms offense, you need the assistance of a Virginia criminal defense attorney. Contact our offices today to discuss your case and what options may be available to you.

Jail Time for Reckless Driving

Virginia is know for the toughest reckless driving penalties in the country, and Virginia judges certainly do issue jail sentences for offenses that would probably just be traffic citations in other states.

But that doesn’t mean some driving isn’t truly reckless, and may well warrant criminal charges and penalties, as one New Jersey man recently found out.
According to Delmarvanow.com he was sentenced to 10 days in jail for driving 110 mph on the Chesapeake Bay Bridge-Tunnel at 2am, with his wife and small child in the car.
The 17 mile long Chesapeake Bay bridge and tunnel is very narrow, and crosses a large opening of the Chesapeake Bay, between Maryland and Virginia. It can be frightening to drive on at posted speed limits, especially when it is windy.
Doing a buck ten on this narrow bridge, at 2am, sounds terrifying, and extremely dangerous. I think it is reasonable to assume that criminal penalties, and even jail time could be the result, even under New Jersey reckless driving laws, which are nowhere near as strict as Virginia.
I think most people who’ve driven on this bridge before would have to agree that driving that fast there sounds crazy.

Reckless Driving for Rolling Through a Right on Red

A new proposed bill could add another marginal traffic violation to Virginia’s reckless driving laws, already the toughest in the nation. According to The Newspaper, HB1993 would criminalize not coming to a complete stop before taking a right turn at at red light.

Virginia drivers already face a Class 1 misdemeanor reckless driving offense for driving 80mph, which is in some cases only 10mph over the posted speed limit.
Criminalizing a rolling stop is another indignation to our besieged motorists.
The reckless driving laws already more than cover this situation if it result in an actual accident, or near miss, and creates a serious danger or risk of injury.
But presenting someone with a criminal citation for drifting through a red light making a right turn, if no one is around is an extreme overreaction.
If enacted, this offense could result in fines of $2500, a six month license suspension, 6 points on your driver’s license, and even jail time. And there are absolutely judges in Virginia courts who will hand out jail time for reckless convictions.

Will “Spice” Be Banned In Virginia?

“Spice” is the latest legal way to get high for many students and young adults. It’s created using chemicals on a legal plant and then smoked for its intoxicating effects, and is considered something akin to a “synthetic marijuana”.
According the Virginia State Crime Commission, the substance is banned in at least three other states and Virginia may be next. There is no word on whether the name itself is derived from the novel Dune.
The problem with “spice” is in the health risks, according to supporters of criminalizing the substance. The American Association of Poison Control Centers states that in this year alone, they have received about 1,800 calls about the substance—70 of those coming from Virginia.
Nausea and seizures are among the potential side effects, though it doesn’t seem that anyone has had a fatal reaction. While I’m not suggesting we wait for someone to die before it’s criminalized, I am simply pointing out that there are far more dangerous legal substances currently on the market with no bans in place.
The substance is marketed as incense and usually involves spraying a number of chemicals on dried leaves like catnip. Makers of K2 and other forms of spice state it is not meant to be smoked and they cannot control what their consumers choose to do with it.
The high this substance provides is said to be similar to a marijuana high and this is why it’s commonly called a “synthetic marijuana”. It can be purchased at tobacco shops and other unique gift stores and “head shops”.
State legislators in Virginia are discussing banning the substance and there’s a good chance it will happen. Six bills have been introduced which would make spice illegal, criminalizing the chemical ingredients responsible for the resulting high rather than criminalizing the brand name or finished product.
There’s no indication how the substance would be classified or what the penalties would be for being found in possession of such a substance. If banned, the new possession laws would likely take effect later in 2011.
Critics are more concerned with adding another substance to the list of drugs already outlawed. While smoking spice might not be a smart idea, criminalizing it shouldn’t be the first line of defense. In a system that is losing the “War on Drugs” and incarcerating more people each day for nonviolent crimes, adding to the counterproductive laws doesn’t seem like a smart solution.
There’s a good chance spice will be banned here and throughout the country as the “tough on crime” approach still has the country in a headlock. We’ll just have to wait and see how the situation plays out in the legislature this upcoming session.
If you are charged with any sort of possession or distributing drug charge in Virginia, I can help. Contact our offices today for a free consultation on your case.

Virginia Dentist Guilty In Drug Distribution

A Tazewell County dentist pled guilty this past week to distribution of hydrocodone (commonly known by the brand name Vicodin). He was writing prescriptions for the pain killer for the last nine years and it finally caught up with him.

Dr. Peter M. Francisco won’t be writing any prescriptions anymore however, as he has lost his privilege to prescribe medication. He also faces up to 15 years in prison according to this report from WVEC. Francisco’s sentencing is scheduled for February 23rd.

The U.S. Attorney on the case states that over a period of 9 years from 2000 to 2009, Francisco wrote prescriptions for over 10,000 of the painkillers to 3 people. These people would fill the orders and return the drugs to Francisco.

In Virginia, possession with intent to distribute a controlled substance, whether it is prescriptions drugs, marijuana, or cocaine, is a serious offense. You’re looking at felony charges and years behind bars.

The prosecution will use all sorts of methods to get a conviction in your case and it is your defense attorney’s job to ensure you have the best possible chance at overcoming their charges.

If you are facing serious drug charges like these, an experienced defense team is necessary.

The evidence in your case is crucial. How it was obtained and handled throughout the arrest process can impact your case in a major way. If the evidence was mishandled in any way, we can motion the court to suppress it, keeping it out of your trial altogether.

Often, if this is your first run in with the law, we can work with the prosecutor to set up some sort of plea agreement. Perhaps you are facing years behind bars but we can get the sentences suspended for probation instead.

Knowing the details of your case is crucial in determining the next move to take. Call me today for a free consultation and legal advice on your Virginia drug case.

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 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.

Virginia Breathalyzers Under Fire

Once Again, Intoxilyzers are Under Fire

In court battles played out across the country, breathalyzer tests are used again and again to send people to jail, take away their driving privileges, and impose huge fines. More and more, however, we are learning that these little machines shouldn’t have the final say.

According to The Newspaper, in Fairfax County recently a defense attorney brought the commonly used Intoxilyzer 5000 to the attention of the court for its potential malfunctions and unreliability. When counties use machines that are nearly ten years old, there is a good chance that parts have been replaced.

In the particular machine involved in this case, the chopper motor had been replaced. While replacing car parts might not be a big deal, parts in different breathalyzers aren’t as easily substituted. A new chopper motor can throw off the reliability of the whole machine.

Interestingly the manufacture of the Intoxilyzer has up until this point refused to reveal the source code used in programming the machines. They contend it is a “trade secret”, making a further mess of many DUI convictions and trials. Without knowing for certain how effective these ancient machines are we continue to send people through the justice system that may be otherwise acquitted.

The Farifax County judge agreed to allow tests to be ran on the machine to prove effectiveness. Before this could happen, however, the prosecutor offered the defendant a sweet plea agreement allowing him to keep his license and avoid jail time.

One of these days the veil of secrecy surrounding these machines will be dropped and it is likely that some will be surprised at the rate of errors. Until that time, when facing DUI charges involving a breathalyzer test, an experienced DUI defense attorney is the key to getting the best possible results.