Blogs from 2017

Some people might not know the 4^th Amendment to the U.S. Constitution protects U.S. citizens from unreasonable searches and seizures. This Amendment prevents law enforcement from barging into anyone’s home they see fit. Instead, police officers must get a warrant from a judge to search a specific area. However, there are also some circumstances where the Amendment doesn’t apply.

During any routine traffic stop, a police officer cannot search your car unless he or she has probable cause to search it legally. Probable cause means police must have some facts or evidence to believe you’re involved in criminal activity. An officer cannot just have a hunch to search your car without your consent.

However, if an officer sees something in plain view that is illegal, he or she can search your car based on the observation. For example, if someone leaves a bag of marijuana in your backseat and an officer spots it, he or she can search your vehicle with probable cause you might be involved in an illegal drug activity. Minor traffic violations, such as speeding, expired registration, or a broken taillight, are not probable cause for a search of your car either.

If you are pulled over for any reason, make sure to be polite with the police officer and follow his or her instructions if he or she asks you to step out of the vehicle. If he or she tries to get you to admit fault, you can exercise your 5^th Amendment rights. If they detain and frisk you, you also have the right to state clearly your refusal to consent to the search. Say, “Officer, I’m not resisting. I do not consent to this search.” However, you should only verbally refuse. Never physically resist.

If you’re facing a criminal charge after an illegal search of your property, let us help. Our skilled Virginia Beach criminal defense attorneys have over 25 years of legal experience to offer your case. Let us see how we can defend your rights and freedom.

Contact us at (757) 267-4949">(757) 267-4949 or fill out our online form to schedule your FREE consultation today.

When someone commits an unlawful killing, it can, legally speaking, be classified as either murder or manslaughter. The nature of the crime, how it was committed and the nature between the victim and the accused can all contribute to the way in which the crime is charged. However, differentiating between the two isn’t always cut and dry. In fact, the difference between manslaughter and murder can sometimes be subjective.

Defining Murder

Murder is committed intentionally and with “malice aforethought,” which means the killer acted without regard for the victim’s life. A murder charge, as well as manslaughter, must have been committed unlawfully. That is to say, if the accused person acted in self-defense, he or she did not commit a crime. The murder need not be intentional for it to be classified as such. If the killer intended to inflict serious bodily harm that led to the victim’s death, it could still be considered an act of murder.

Classifications of Murder

Depending on the circumstances of the killing, it could be classified as either first-degree or second-degree murder. First-degree murder is considered a much more serious crime and will result in more severe penalties. To commit first-degree murder, the court must agree that the killer had intended to kill the victim, usually through a course of deliberate, planned actions. In circumstances where the killing was not intentional, it will likely be considered second-degree murder. However, these classifications vary case-by-case and are determined based on the individual circumstances of each incident.

Manslaughter

As with a murder charge, manslaughter must be an unlawful killing. It can also be classified as either voluntary or involuntary, depending on whether the killer intended to end the life of his or her victim or not. The main difference between manslaughter and murder lies in the degree of premeditation and the state of mind of the alleged killer. A murderer planned to either kill or seriously injure his or her victim, whereas someone who commits manslaughter could have killed in the heat of the moment.

Punishment

The penalties for manslaughter and murder can both be very serious, though murder is generally punished more severely. First-degree murder may result in up to $10,000 in fines and could lead to several decades or life in prison. Second-degree murder could lead to the same fine, though the prison sentence will not exceed 20 years.

In the state of Virginia, manslaughter is punishable by imprisonment of up to 10 years and a fine of up to $2,500. However, conviction for a manslaughter crime could result in more serious repercussions, (up to 20 years in prison), if the defendant’s actions were considered wanton or without regard for human life.

Violent crime charges are extremely serious and could drastically change your personal and professional life for the worse. If you are facing charges, make sure you have a knowledgeable, aggressive criminal defense attorney on your side.

Contact The Law Offices of Daniel J Miller for a free consultation.

Definition of "Entrapment" in a Criminal Case

There is a fine line between providing someone with the opportunity to commit a crime and coercing them into action. When a person is coerced into committing a crime or otherwise pressured through overbearing tactics, he or she may have just cause to argue entrapment as a defense to criminal charges.

Who Is Involved in Entrapment?

Entrapment claims typically occur between a police officer and defendant, though they can involve other government agents. As a rule, entrapment laws do not apply to private parties, but are specifically set up to protect citizens from unfair law enforcement activities. That being said, entrapment defense usually involves a law enforcement officer, though it can include government agents like public officials. The crimes involved in cases of entrapment can also vary greatly.

Common Crimes that Involved Entrapment

A victim of entrapment could have been pressured to commit any type of crime, including white collar crimes, drug crimes, violent crimes, or theft. Entrapment typically includes the use of a repugnant behavior to incite someone to break the law, including the use of threats, harassment, flattery, or fraud. However, the line between presenting someone with the opportunity to break the law and compelling them to do so can be extremely thin.

For example, if an officer is undercover and asks Jane to sell him illegal drugs, he merely presented her with the opportunity to commit a drug crime and therefore did not commit entrapment. However, in another scenario, if the officer asked Jane to sell him illegal drugs, she refused, and he harassed her for weeks until she gave in, he likely committed entrapment. However, officers and certain government agents are permitted to lie in order to smoke out a criminal. Therefore, because the duties of an officer can sometimes be hard to assess, these cases are usually left to the court for nondiscriminatory judgement.

Proving Entrapment

The court will then determine whether or not a reasonable person would have been able to resist the temptation to commit the same crime. Courts will assess the entrapment defense by either subjective or objective standards. By subjective standards, the jurors will determine if the defendant was predisposed to commit the crime by his or her own actions, rather than the actions of the officer or government agent involved.

Objective standards, on the other hand, are often easier to prove, as it requires the jury to examine whether or not the actions of the government agent’s actions would have enticed any other law-abiding citizen to act in the same way, thereby committing a crime. It is also very important to understand that entrapment is an affirmative defense, which means the defendant must prove the entrapment existed.

If you believe you were the victim of entrapment and you are currently facing criminal charges, our firm may be able to help.

Hazing may start off as good-natured teasing or pranks, but this right-of-passage can be a dangerous practice. For this reason, Virginia state law has made hazing on school, college, and university campuses illegal. Students should be free to join organizations without the threatening and dangerous activities that can occur during initiations.

Hazing, according to William & Mary’s anti-hazing policy, is defined as acts that endanger the mental or physical health of a student, or destroys or removes public or private property for the purpose of initiation, admission into, affiliation with, or as a condition of continued membership in an organization or group. These acts can include challenges, pranks, or physical tasks that are required of other students. These acts are considered illegal under Virginia state law, even if the victim of the hazing had consented to the actions.

The Code of Virginia § 18.2-56 states that it is illegal to haze with the intent to cause bodily injury to any student at any school, college, or university. Doing so is considered a Class 1 misdemeanor, and is subject to 12 months of jail time and up to $2,500 in fines. Additionally, any person injured as a result of hazing can sue the guilty party or parties for damages in a civil lawsuit. The president or presiding official of any school receiving state funding must expel students guilty of hazing. They must also report the student’s name to the attorney for the Commonwealth which handles the county or city in which the school is located.

Campuses Taking Charge

Many campuses across Virginia are beginning to create and enforce their own campus anti-hazing policies to help combat even minor instances of hazing. William & Mary has been cited as a model of anti-hazing policy, and the school has produced an extensive and detailed anti-hazing policy to protect students. The policy includes a list of forbidden hazing activities, including:

• Kidnapping
• Road trips or involuntary excursions
• Confinement in a room or compartment
• Nudity
• Compelling students to participate in activities that interfere with their work or studies
• Verbal Harassment
• Burning, branding, or tattooing any part of the body
• Carrying items designed to embarrass the carrier
• Depriving students of sleep
• Compelling exposure to uncomfortable elements
• Compelling the public wearing of clothing that is in poor taste
• Forcing consumption of any substance, including alcohol
• Psychological abuse, such as ridicule, compromising dignity, shaming, or causing emotional strain

These activities are forbidden on campus or off if performed in relation to some aspect of the school, such as membership in an organization, society, fraternity or sorority, or other school groups. The policy also states that an organization found to be engaging in hazing may lose status as an official student group, and the individuals involved may face dismissal from the school.

Protection From Hazing Charges

If you have been accused of hazing, you can be facing serious consequences. The penalties of hazing charges can be costly, and criminal charges cannot be expunged from your record in Virginia. Your record may be used against you in the future, so it is critical to build an aggressive, experienced defense for yourself. The Law Offices of Daniel J Miller can help fight for your rights

Our Virginia Beach criminal defense attorney has over 25 years of experience in criminal court and is familiar with the courts Southeast Virginia. Our team will use our knowledge and experience to develop a personalized, strategic plan for your defense. We never use cookie-cutter solutions, since we know that your rights and freedom are at risk. Learn how we can help today!

Schedule a free consultation by contacting our offices at (757) 267-4949">(757) 267-4949.

If you have been convicted of a sex crime, you may have been ordered to register the Virginia state sex offender registry. Registration can have social, economic, and other consequences for offenders, so many people want to know how they can get relief from registration. Below, we cover the legal process of having your name removed from the registry database.

Removal of Name and Information From the Registry

The Code of Virginia § 9.1-910 provides a way for sex offenders to have their name and identifying information removed from the registry. There are several restrictions and eligibility requirements that must be taken into account when petitioning for removal.

Individuals Restricted from Removal:

• Those convicted of a sexually violent offense.
• Those convicted of two or more offenses requiring registration.
• Those convicted of murder.

Eligibility Requirements for Removal:

• Have been registered for a minimum of 15 years (25 years for specific offenses).
• Have completed any court-ordered counseling, treatment, and restitution.

A petition must be filed with the circuit court in which you were convicted or in the circuit court of the jurisdiction you live in to have your name and identifying information removed. The court that was petitioned will hold a hearing to evaluate the petition and any evidence presented by the petitioner and any interested parties. If the court determines that there is enough evidence that the petitioner is no longer a risk to public safety, the petition will be granted, and the identifying information will be removed from the registry. If the petition is denied, the petitioner must wait 24 months before submitting a new petition.

Get Help with Your Sex Offender Registry Removal Petition

Removal from the state sex offender registry can free a person of the stigma of registration, and lift the restrictions they have been forced to face. At The Law Offices of Daniel J Miller, we are committed to protecting the rights of those convicted of sex crimes. Helping our clients find relief from registration is one way we strive to restore our clients’ rights. Over 25 years of experience our sex crimes lawyer can help you reclaim your life.

Contact our firm to schedule a free case evaluation. Call (757) 267-4949">(757) 267-4949 today.

According to The Free Dictionary's Legal Dictionary, "possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types." In this blog, we will define actual possession and constructive possession and explain the differences between the two types of possession.

What Is Actual Possession?

"Actual possession" is what most people think of when talking about drug possession charges – meaning that a person has the substance in their physical possession.

Charges of "actual possession" can occur if you are found by police and appear to have direct, physical control over drugs or other illegal substances. Examples of actual possession include having drugs in your hand or in your pocket, or having direct contact and control of the drugs in any way.

What Is Constructive Possession?

"Constructive possession" is more of a theory that is used in cases where a person does not have direct control of a drug or controlled substance. In cases of constructive possession, a person may instead have indirect access to and/or knowledge of the drugs in question.

Constructive possession happens when you do not have physical possession of a drug, but do have:

• Knowledge of the drug's presence on or around your property.
• The ability to maintain dominion or control over the illegal substance.

Individuals and groups can both be charged with constructive possession for the same substance. For example, two different people can be charged for the same bag of cocaine if they are living in the same house.

Simply being close to a drug or controlled substance is not enough to warrant a constructive possession charge. You need to have known of its existence and/or had indirect control over it.

Need a drug possession lawyer in Virginia Beach? Contact us online or call (757) 267-4949">(757) 267-4949 now!

How Is “Knowledge” and “Ability to Maintain Dominion & Control” Defined?

Under constructive possession laws, "knowledge" is defined as:

• Awareness of the substance on or around your property. This awareness can be inferred from incriminating facts or circumstances.
• Knowing the illegal status of the drug or substance.

A person’s ability to maintain dominion and control can be interpreted differently in each state. Usually, a person will be charged with constructive possession if they knowingly had the power and intention, either directly, indirectly, or through another person, to control the whereabouts of the illegal substance.

Our Drug Possession Attorney Is Ready to Help You

Both types of convictions can result in jail time, expensive fines, and a criminal record that will follow you well into the future. Drug-related charges are extremely fact-specific, which is why you should hire experienced legal representation if you are facing possession charges.

At The Law Offices of Daniel J. Miller, we provide our clients with exceptional legal guidance tailored to their unique needs. Our drug possession lawyer can help navigate you through the complexities of the legal system and get you the justice you deserve. We are here for you when you need us most.

Call (757) 267-4949">(757) 267-4949, or contact our attorney for your free consultation.

Virginia state officials are cracking down on intoxicated boaters by lawfully allowing officers to treat boat drivers just as they would treat drunk drivers on land. This means law enforcement can make an arrest for boating under the influence without a warrant, so long as there is probable cause.

Before you get out on the water, make sure you know the risks of driving a motorized watercraft while intoxicated so you can better protect your future.

Virginia State Laws

In the state of Virginia, it is illegal to operate any boat while intoxicated due to either alcohol consumption or drug use. Intoxication is defined by a person’s blood-alcohol concentration (BAC). If a driver’s BAC is at or above 0.08%, the driver is considered under the influence to a degree that impairs his or her ability to safely operate a boat. For boat drivers under the age of 21, the legal drinking age, any level of alcohol discovered in their system is considered unsafe and unlawful. If a person is found guilty of driving any boat, including sailboats and personalized watercrafts, (such as jet skis or sailboards), he or she will receive a BUI, boating under the influence.

Having probable cause means an officer must see the driver exhibit behavior that shows the officer the driver is intoxicated. The officer could also see the driver taking a drink of alcohol or similar evidence that demonstrations the driver was drinking.

Repercussions for Boating Under the Influence

Boating under the influence, also called BUI, is a serious offense and can lead to serious repercussions, especially if you are under the legal drinking age, have multiple offenses, or had an especially high blood alcohol concentration. For a first offense, the driver will face a minimum class 1 misdemeanor charge and may also lose boating privileges for 1 year. For driver’s facing second or subsequent convictions, boating privileges may be revoked for up to 3 years. Those facing BUI charges may also receive fines of up to $2,500, imprisonment for up to 12 months, and required attendance at an Alcohol Safety Action Program. Additionally, all BUI offenders are required to complete a state-approved boating safety course.

Additional Penalties

Certain circumstances may lead certain BUI charges to come down much more strongly than others. If the intoxication of the boat driver leads to “serious bodily injury” of another person, it could be considered a class 6 felony. Such a charge could lead to up to 5 years in prison or 1 year in jail, and possibly $2,500 in fines. The boat driver’s operator privileges will be suspended for a minimum 2 years, and the court may require the completion of a substance abuse treatment.

In the event that a person is killed in a BUI accident, the boat driver could be convicted of involuntary or aggravated-involuntary manslaughter, which are class 5 felonies. If convicted of involuntary manslaughter, the driver may face up to 10 years in prison and $2,500 in fines. A person convicted of aggravated-involuntary manslaughter could result in up to 20 years in prison. Both convictions would result in the loss of boating privileges for at least 5 years, and may also require the completion of a substance abuse treatment.

If you are facing BUI charges, don’t wait to take action. It is our mission to reduce your penalties and ensure your individual rights are protected. For the best possible outcome following your BUI arrest, contact a criminal defense attorney at The Law Offices of Daniel J Miller to discuss your case and begin building your defense.

Contact The Law Offices of Daniel J Miller for a free consultation.

Violating Virginia state laws can have plenty of legal consequences, but in light of some of the more serious penalties, some defendants fail to realize they may lose their driving privileges. Depending on the crime in question, a person facing criminal charges could have their license suspended or revoked. Find out what could be at stake if you are facing criminal charges and discover the best ways to handle driving penalties.

Driver’s License Suspension

A suspension is a temporary revocation of driving privileges. There will be a designated suspension period, depending on the severity of the crime committed, and at the end of the suspension, you may pay the required fees to reinstate your license. In order to reinstate your license, you must show proof of U.S. citizenship or proof of legal authorization to reside in the U.S..

Driver’s License Revocation

If your driver’s license is revoked, it means you have lost the legal right to drive on a more permanent basis. You may re-apply for a driver’s license after the revocation period has ended. Obtaining a new driver’s license will likely include a road skills test, a driver’s knowledge exam, and a vision screening, as well as payment for any fees.

You may face license suspension or revocation for any number of driving offenses in Virginia, including:

• Drug or alcohol DUI
• Driving with a revoked or suspended license, especially for a DUI charge
• Driving a vehicle without a court-ordered ignition interlock device when required
• Falsifying a statement to the Department of Motor Vehicles (DMV)
• Failing to stop and respond at the scene of an accident where someone was hurt or killed
• Committing vehicular manslaughter, whether voluntarily or involuntarily
• Committing a felony involving a motor vehicle
• Taking a driver’s license exam or renewing a license for another person
• Eluding police
• Committing a drug offense, whether or not a vehicle was involved

Driving privileges could also be affected by your driving behaviors. The court may revoke or suspend your license if you drive recklessly, drive without a valid license, drive under a suspended or revoked license, or refuse to take a blood or breath test when charged with DUI. You could also find your license suspended if you fail to pay for gas. Also, if you fail to pay court fines within 30 days of your traffic or criminal conviction, the court will suspend your license.

Your Next Move

The best thing you can do when facing the loss of your driving privileges is to follow the rules set by the court or the DMV and to contact your attorney. Failing to follow the rules of the court or Virginia’s DMV could result in stiffer punishments and lengthier suspensions. Do as instructed, and contact our offices immediately to speak with our lawyers and discuss your legal options. Our legal team will work diligently to defend your rights and protect your driver’s license.

If you are facing license revocation or suspension because of a criminal or traffic charge, we are here to help. We will use our ample resources to investigate the circumstance of your case to better build a solid defense. At The Law Offices of Daniel J. Miller, we are dedicated to providing aggressive, knowledgeable legal advice in Virginia Beach, VA that you can count on. Discuss your options with our legal team and figure out your next step towards securing your future.

Contact The Law Offices of Daniel J Miller for a free consultation.

According to the Code of Virginia, rape is defined as a sexual act done against a person’s will, by force, threat, intimidation, or by way of the victim’s “physical helplessness or mental incapacity.” What makes date rape different from other types of rape is the relationship between the victim and attacker. A rape becomes date rape if the two parties know one another, either as partners, friends, or newly introduced acquaintances. If someone accuses you of committing date rape, the consequences can be extremely severe, even life-altering. To protect yourself from wrongful conviction, learn everything you can about date rape charges, how they’re proven in court, and how best to defend your sex crime case.

Defining Date Rape

Contrary to popular belief, the act need not be violent to be considered sexual assault. If the victim in any way declines the sexual advancements, saying “no,” it is lawfully considered forced sex. Laws against rape forbid any type of sexual intercourse with a mentally or physically “helpless” person, including the disabled, drugged, or unconscious, who are unable to give consent. In many cases, date rape involves the use of disabling drugs, rendering the victim either unconscious or extremely impaired.

Date rape refers to sexual assault committed by someone with a romantic or sexual interest in the victim, as opposed to rape by a stranger. Statistically, at least half of all rapes are committed by a person the victim knew. Some surveys even say the number is more accurate around 80 percent. Traditionally, the term date rape applied to situations where the forced act of sex occurred when the victim and attacker were on a date or at a party. It could be between acquaintances, friends, a couple, or even spouses.

Proving Rape

The biggest question with date rape is consent. Because the alleged attack usually occurs between two people who know one another, whether or not mutual consent was attained is usually only discernable between those two individuals. For individuals facing charges of date rape, one of the best lines of defense is prove the alleged victim gave his or her consent. There have been cases of legitimate misunderstandings, where consent was seemingly communicated, but the other party misunderstood. However, with date rape, if drugs or copious amounts of alcohol were involved, the victim’s consent could be difficult to communicate, making the issue much more complex.

The Drugs Involved

The most common “date rape drug” is rophynol, typically called “roofies.” Other known date rape drugs are GHB and ketamine, which were more popularly used around the 1980’s and 1990’s. Sometimes these drugs caused weakness, confusion, short-term memory loss, or symptoms very similar to drunkenness. If combined with alcohol, the use of any of these drugs could be extremely dangerous, even deadly.

Penalties of Date Rape Conviction

Virginia state laws do not make specific rules for date rape, but consider date rape charge under the existing rape laws. This means a person convicted of date rape could face multiple years in prison, will be listed as a sex offender, and may have to pay steep fines. In some situations, especially where the rape was aggravated or there were multiple rapes, the person could be sentenced to decades behind bars.

Contact The Law Offices of Daniel J Miller for a free consultation regarding your criminal defense case.