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 »
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 »
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 »
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 »
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 »
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 »
One of the most commonly asked questions I receive from family, friends, and potential clients is how they should handle any encounters with the police. No one ever seems quite sure how to handle themselves since being stopped by the police, or just having an “involuntary” encounter, can be one of the scariest, most nerve-wracking experiences of someone’s life. Most believe that if they just tell their story or admit to some minor wrong-doing, the police will treat them favorably and let them off with a warning. Unfortunately, such a viewpoint has no base in reality.
So, as I’m sure you’re wondering, what should you tell the police if you find yourself in just such a situation?
That’s right, nothing. Let me repeat that: tell the police nothing. Don’t admit to anything. Don’t try to explain what happened. Don’t try to justify what … Read More »
The most common question I receive when it comes to traffic cases, whether from potential clients or friends, is “why should I hire a traffic attorney?” Most everyone knows it is a good idea to hire an attorney if you’re facing criminal charges, but many think of traffic offenses as minor matters that can be ignored. This is simply not the case and many who ignore or prepay traffic tickets end up eventually regretting that decision, once they see a huge increase in insurance premiums or find out that they now have a criminal record. Here are some of the reasons why hiring an attorney to fight your traffic ticket in Northern Virginia makes a lot of sense:
Virginia is Tough on Traffic Offenses. Virginia is very tough on traffic offenses, much more so than most of its neighbors. Sure, as in … Read More »
The relationship between mental health and the commission of crime has garnered major headlines in the last several years. High profile horrors such as the shootings at Virginia Tech and Sandy Hook revealed that the perpetrators of these offenses possibly suffered from very serious mental health issues. Virginians also witnessed the tragic incident involving State Senator Creigh Deeds and his son, who suffered from mental health issues.
Those were each very serious incidents involving the tragic loss of life. But what about the petit larceny or disorderly conduct committed by someone who suffers from a mental illness—the cases that don’t make the headlines?
Prince William County, Virginia is one jurisdiction that is seeking to change the way the justice system operates for people suffering from mental illness. Prince William has established a special docket, known as DIVERT, in its general district court. … Read More »
One of the key issues for defense attorneys at trial is limiting the focus of the prosecution’s evidence to evidence of the offense charged, and preventing the admission of any evidence of other prior charges, convictions, or bad acts of the defendant. This task is made somewhat easier in Virginia by our longstanding rule against evidence being admitted solely to prove the general criminal propensity of the defendant.
Rule 2:404 of the Virginia Rules of Evidence states that “evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” We have that rule to protect defendants from the inference that results from the entry of evidence of prior bad acts: that the defendant has a propensity to commit criminal acts.
Virginia Rule 2:404 protects defendants by generally prohibiting that … Read More »