Category:Criminal Defense

Actual vs. Constructive Possession of Marijuana in Virginia

Posted on October 18th, 2016, by Fernando Villarroel in Criminal Defense. No Comments

You have been charged with possession of marijuana in Virginia—yet you never actually possessed the drug. How is that possible? The reason is simple: under Virginia law you may be guilty of marijuana possession if the prosecutor can prove beyond a reasonable doubt that you were either in actual or “constructive” possession of it.

Actual possession is when you are physically in possession of an object, or in this case, a narcotic. For instance, you could be holding it or it could be in your pant pocket. So, in other words, you are in actual possession of things that are on your person.

Constructive possession, on the other hand, is when the marijuana is not on your person, but is in a place under your control, and you know what and where it is. To show constructive possession, the government has to prove the … Read More »

Petit Larceny in Fairfax County

Posted on June 6th, 2016, by Fernando Villarroel in Criminal Defense. No Comments

In Virginia, petit larceny, under Virginia Code Section 18.2-96, is a class one misdemeanor, punishable by a maximum of twelve months in jail and a $2,500 fine. It is a serious offense that can have lasting implications in both the professional and personal realms. As defined by statute, petit larceny is the wrongful taking from another person of less than $5, or of another person’s property with a value less than $200, without that owner’s permission, with the intent to permanently deprive the owner of said property.

Locality, to a certain extent, is going to be a factor in how your case gets litigated. In contrast to Prince William County, for example, if you are charged with petit larceny in Fairfax County you at least have a couple of different scenarios of how your case may ultimately play out. One possibility … Read More »

What to Do if You Missed Your Court Date

Posted on December 29th, 2015, by Benjamin Griffitts in Criminal Defense. No Comments

I often receive calls from people who have missed a court date for a traffic or criminal matter in Virginia. These calls typically fit within three general categories: (1) the person wrote the wrong date on their calendar, then went to court only to find out that their matter had already been adjudicated or resolved; (2) the person completely forgot their court date and remembered after the fact that they needed to be in court; or (3) the person missed their court date and found out that law enforcement was attempting to serve them some kind of document.

Over the next couple of blog posts, I am going to address what you can do if you had a court date and missed it. In this first post, I will deal with cases where there is no possibility of incarceration. Later, I will … Read More »

Asset Forfeiture in Virginia

Posted on October 6th, 2015, by Livesay & Myers, P.C. in Criminal Defense. No Comments

It may not surprise any reader here that law enforcement, both on the state and federal level, have tools at their disposal to prevent individuals charged with committing criminal offenses from profiting from such enterprises. What may surprise you, however, is that property can be seized and forfeited to the police absent a conviction—there’s no requirement under either Virginia or federal law that a crime even be charged. Common examples involve large sums of cash, vehicles or other property suspected of being involved with drug trafficking. This has become a controversial practice across the country and in Virginia, where legislative efforts in the last session to reform the process passed the House of Delegates but were defeated in committee in the State Senate.

There are two types of asset forfeitures: criminal and civil. Criminal forfeiture is the less controversial method of … Read More »

New Virginia Criminal Laws Taking Effect July 1, 2015

Posted on June 29th, 2015, by Livesay & Myers, P.C. in Criminal Defense. No Comments

Every year on July 1, a whole new set of laws goes into effect in the Commonwealth of Virginia. This is a result of the uniqueness of our General Assembly, which is a part-time legislature that regularly meets for only either 45 or 60 days every winter. A flurry of activity and news occurs during those times, but any press is normally focused on such things as selecting a new state song (we actually have three now!). In reality, the General Assembly considers many bills that will have implications across Virginia for those that are facing, or may face, criminal charges. These laws usually do one of three things: (1) create new crimes, regulations or defenses, (2) close loopholes, or (3) streamline the judicial process. In addition to a new law on DNA sampling, here are some noteworthy new criminal … Read More »

DNA Sampling in Virginia: Does New Law Go Too Far?

Posted on June 15th, 2015, by Benjamin Griffitts in Criminal Defense. No Comments

A new law goes into effect in Virginia on July 1, 2015, adding a number of misdemeanors to the list of convictions for which the Commonwealth will take the defendant’s DNA sample and put it into a database. But does this change to the Virginia Code go too far?

Background: the Constitution

The tension between privacy and law enforcement has existed since our nation’s founding. The Fourth Amendment to the Constitution prevents the government from conducting unreasonable searches and seizures. In a nutshell, this means that the government through its law enforcement agencies cannot simply look into our homes or persons and take whatever it wants in a criminal investigation. There are rules and requirements, such as obtaining a warrant on probable cause before (a) searching a place or (b) seizing a person or his things.

The Fourth Amendment begins with “[t]he right of … Read More »

Setting the Record Straight: Expungements, Pardons and Restoration of Rights

Posted on April 9th, 2015, by Livesay & Myers, P.C. in Criminal Defense. Comments Off on Setting the Record Straight: Expungements, Pardons and Restoration of Rights

After a criminal charge has been resolved, many defendants worry about the impact that a conviction, or even simply a public arrest record, may have on them for the rest of their lives. This concern is often overshadowed during criminal litigation by more immediate concerns, primarily the process of determining guilt or innocence. However, it is to the defendant’s advantage to early on understand the long-term impact of a conviction, and what steps they can take to decrease that impact. Far too many defendants wait to worry about the long-term consequences until it is too late to change things, leaving limited or no options available. Prior to the resolution of any criminal charge, every defendant should think long and hard about the potential ramifications of a conviction.

There are limited ways outside of post-conviction litigation that you can clean up your … Read More »

Committee Proposes New Criminal Discovery Rules for Virginia

Posted on March 27th, 2015, by Benjamin Griffitts in Criminal Defense. Comments Off on Committee Proposes New Criminal Discovery Rules for Virginia

Way, way back in 2012, I wrote My Cousin Vinny and Discovery in Virginia Criminal Cases, which explained the rules for discovery of evidence in Virginia criminal cases.

It appears that those discovery rules are very likely to change. Earlier this month, the Virginia Supreme Court released a report by its “special committee on criminal discovery rules.” Chaired by retired Loudoun County Circuit Court Judge Thomas D. Horne, this committee spent the bulk of 2014 looking at the existing Rules of Discovery and determining whether any changes to them should be proposed. The committee delivered its report to the Supreme Court on December 2, 2014.

In its report, the committee proposed several new rules that, if adopted, would dramatically affect the nature of criminal practice in the Commonwealth of Virginia. It is important to keep in mind that these are recommendations only, not updated law. … Read More »

Don’t Get Carried Away—What You Need to Know About Carrying Firearms in Virginia

Posted on February 9th, 2015, by Livesay & Myers, P.C. in Criminal Defense. Comments Off on Don’t Get Carried Away—What You Need to Know About Carrying Firearms in Virginia

For many ordinary citizens, one of the most confusing areas of the law is that surrounding firearms. Particularly of concern is whether one can legally carry a firearm in public and if so, what restrictions are in place. Of double concern is the severity of criminal penalties for non-compliance with these laws and the tenacity with which local and state police enforce firearms laws. It is very easy, even in a gun friendly state such as Virginia, to unknowingly put yourself in a situation with firearms that results in criminal charges.

So to begin, Virginia is what’s known as an “open carry” state. This means that any individual over the age of 18, not otherwise disqualified from possessing a firearm, can carry one in public. Those who are disqualified from possessing a firearm include: convicted felons, juveniles found delinquent of felonies (in … Read More »

Marijuana Use in Virginia? Not So Fast, My Friend!

Posted on November 24th, 2014, by Livesay & Myers, P.C. in Criminal Defense. Comments Off on Marijuana Use in Virginia? Not So Fast, My Friend!

In recent weeks, the news has featured many stories on the growing trend of the decriminalization and legalization of marijuana use and possession. This past Election Day, voters in Alaska, Oregon, and Washington D.C. approved measures that would legalize marijuana possession. Colorado and Washington have already legalized marijuana. Many more states, including Maryland, have either decriminalized marijuana possession, or allowed it for medical use. A record number of Americans support decriminalization/legalization of marijuana, and now corporations are even now looking into creating national brands, including one centered around a certain reggae legend.

With all that is going on nationally and the obvious shift in public opinion, one could be forgiven for thinking that attitudes in Virginia have lightened up regarding marijuana. However, such a view would be mistaken: it remains the case that even simple possession of marijuana in the Old … Read More »

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