We have all seen the flashing blue lights on the side of the road while traveling, and had our basic human nature kick in and cause us to wonder why that person was pulled over. While the reason may occasionally be serious (drunk driving, etc.), many times the initial cause for the stop is surprisingly minor. Serious traffic offenses like driving under the influence (DUI) or with a suspended license often come to the police’s attention through a minor traffic offense. In some cases, police who have pulled a person over for a minor traffic violation then find evidence of serious non-traffic offenses—for example, possession of illegal narcotics. During periods of heavy traffic enforcement such as the holidays, police will often target enforcement of minor traffic infractions with an eye towards catching more serious behavior that is harder to detect. If … Read More »
In this interview last night on 92.9 The Game, Livesay & Myers criminal defense attorney (and former prosecutor) Eugene Oliver spoke at length about the investigation into the rape allegation against Florida State quarterback Jameis Winston. In the interview, Mr. Oliver predicted that the prosecutor would not bring a criminal charge against Winston—a prediction that came true today at the prosecutor’s press conference in Tallahassee.
92.9 The Game is a sports radio station in Atlanta, Georgia.
The holiday season is upon us once again. It is a time for mirth and merriment: friends and family gatherings, office parties, community celebrations. Alcohol flows freely at many of these events. So along with the joy of the season comes the increased opportunity for a person to drink and drive—which may well bring unwanted interactions with law enforcement and the criminal justice system. For Virginia residents, or anyone driving in Virginia, what exactly constitutes drinking and driving as a criminal offense?
First things first: if you have consumed any alcohol and need to get to another location, find a designated driver! There are services in almost every locality to give you a sober ride from a restaurant bar, your office or another person’s home; so, if you don’t have someone you know volunteering to be the designated driver, at a minimum … Read More »
You’re a resident of Fairfax County and you have just received every parent’s nightmare—a phone call from the police telling you that your child has been arrested and will be facing criminal charges. For many parents, this will be your first interaction with the justice system and it is important to know that the juvenile system in Fairfax County is nothing like what you see on Law & Order or other TV shows. In fact, the juvenile system is so different from the adult criminal system in Fairfax, in terms of procedure and terminology, that many long-time attorneys find it confusing.
Every criminal charge for a juvenile in Fairfax starts with a “petition” (as opposed to a warrant or indictment for adults). The petition will state the child’s name and address, the name and address of the child’s parents and/or guardians, … Read More »
Defendants in Virginia criminal cases have very limited discovery rights. While in other states a defendant may be entitled to things like police reports, Virginia provides no right to discovery beyond the minimum that is required for due process under the U.S. Constitution—namely, the right to disclosure of exculpatory evidence.
While there are certainly Commonwealth’s Attorneys offices that practice “open file” discovery, and readily provide information to defense attorneys contained within police reports and witness statements that they are not required to disclose, not every office practices that way. Furthermore, unless the evidence is known by the defense to exist, it is up to the Commonwealth’s Attorney and their judgment to determine what evidence is exculpatory and subject to disclosure absent a court order.
As you can imagine, we defense attorneys have the goal of obtaining as much information as possible in order … Read More »
Many criminal defendants discover one thing in their first few meetings with their defense attorney: a very wide gap between the evidence the defendant wants the court to consider and the evidence the court will actually find admissible. In Hearsay in Family Law, Livesay & Myers divorce attorney Ariel Baniowski tackled one of the most commonly misunderstood areas of evidentiary law: hearsay. Ariel explained what hearsay is and what the rule against hearsay prohibits, and specifically how the hearsay rule comes into play within the realm of family law. In this article, I will explore the hearsay rule as it relates to criminal law.
As Ariel explained, hearsay is an out of court statement being offered in court to prove the truth of the matter asserted. Example: John is testifying. John says “Suzy told me yesterday that she hates the color blue.” … Read More »
For a small number of specific offenses, Virginia law allows a person accused of committing a first violation to avoid trial and receive a dismissal of the charge– with something called a “deferred disposition.”
In a deferred disposition of a criminal charge in Virginia, several things happen: (a) the judge takes a plea (which can be guilty, not guilty or no contest); (b) the judge determines that the facts would be sufficient for a finding of guilt; (c) the judge, with the agreement of the defendant, withholds an actual finding of guilt for some set length of time; (d) the defendant is placed on some form of probation to complete some terms and conditions; and (e) if the conditions are satisfied, the judge will dismiss the charge at some future date.
Offenses eligible for deferred disposition in Virginia include the most commonly known “first offender” programs, such … Read More »
Searches executed using trained canines are another special wrinkle in the general rule of the Fourth Amendment prohibition on warrantless searches. Canine searches do not, generally speaking, require a warrant. Why? Because when Fido takes a whiff, the law says that action is not really a “search” in the constitutional sense. Without a search, there is no violation of the Fourth Amendment. Why are sniffs not considered searches? And when can that wafting scent of contraband be used against you? Let’s explore these issues.
Why Dogs Are Different: a Sniff is Not a Search
Why is a dog sniff not a search?
A narcotics dog is trained to detect one thing: the presence of narcotics. (While dogs are trained for other purposes, like bomb-detection or agricultural purposes, one dog is not usually trained as an “all-purpose” dog, but for one of these specific … Read More »
Justice is supposed to require that a person not be convicted of a crime unless and until the prosecution has proven each and every element of a criminal offense beyond a reasonable doubt. However, proof beyond a reasonable doubt does not require “black and white” evidence of guilt. The law does not necessarily or always require scientific evidence for a defendant to be convicted of a crime. The law does not always require that a crime be timely reported by an alleged victim so that an adequate investigation can be done by law enforcement before a defendant can be convicted of a crime. Nor does the law always require that an alleged victim’s version of the crime even make sense in terms of normal human experience.
The law does, however, allow a jury to determine the credibility of witnesses and make … Read More »
The Virginia Sentencing Guidelines provide circuit court judges with a range of recommended sentencing options for many criminal offenses in Virginia. If a defendant’s offense is not covered by the guidelines, then the defendant faces a sentence somewhere within the broad statutory range of punishments for the crime. However, for cases where the offense is covered by the Guidelines, the circuit court will at least review and consider sentencing guidelines worksheets before imposing a punishment.
The purpose of the Virginia Sentencing Guidelines, as created by the Virginia Sentencing Commission, is to provide courts with statistical data in the form of worksheets so that a point based formula (taking into account the nature of the crime, a defendant’s prior criminal history, factors about the crime itself and the defendant’s background to include mental health treatment) will lead to similarly situated defendants being … Read More »