Back in July of 2015, the Virginia General Assembly passed a law that aimed to save the lives of people suffering from overdoses. This safe reporting law (Virginia Code § 18.2-251.03) provides for an affirmative defense to prosecution of unlawful possession of alcohol, possession of a controlled substance, possession of marijuana, drunk in public, or possession of controlled paraphernalia. It does not, however, provide an affirmative defense to other crimes such as intent to distribute.
While the law is indeed a constructive step towards lowering the rate of overdoses in Virginia, it has generated some confusion about whom it actually covers. Is the individual overdosing protected? Or is it the person making the call? Or is it both? A recent Virginia Court of Appeals case, Broadous v. Commonwealth, interpreted the overdose safe harbor provision provided in § 18.2-251.03 and may finally … Read More »
Typically, an individual becomes aware that they have been charged with a crime by being arrested or issued a summons on the spot at the time of the alleged offense. However, this is not always the scenario that plays out. In certain circumstances, it could take hours, days, months, or even years before a person is accused of a crime. In these cases, law enforcement will need an arrest warrant to take the suspect into custody.
Unfortunately, you would usually only find out that you have an outstanding warrant when the police show up to arrest you. However, in most jurisdictions in Virginia, you can call the local police department’s warrant desk to inquire whether an arrest warrant is active against you or somebody you know.
If you do become aware that you have an arrest warrant issued against you, the most important … Read More »
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 »
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 »
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 »
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 »
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 »