Blogs from March, 2018

You’ve had too much to drink, and you know that driving wouldn’t be a good idea. But the bar is about to close and you don’t want to abandon your car. So you decide to take a nap in your vehicle, hoping that you will be sober enough to drive in a couple of hours. Suddenly, a police officer knocks on your window, and the next thing you know, you’re in handcuffs.

You may be wondering, “how is that even possible?” The truth is that the actual language of the Virginia DUI statute states that you are guilty if you are “operating” the vehicle while intoxicated. “Operation” has been defined down to mean “having the key in the ignition,” along with other mitigating circumstances.

In the Virginia Supreme Court case of Enriquez v. Commonwealth (2012), the following rule was established:

“…[W]hen an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.”

So, if you are trying to be a responsible person and choose not to drive home after drinking, do not sit in the driver’s seat and put your keys in the ignition to turn on the radio or air. It is possible that police will consider all of this as evidence that you moved your vehicle.

At The Law Offices of Daniel J. Miller, we advise you not to sleep in your vehicle and risk experiencing this type of situation. Instead, call a friend who can act as your designated driver, request a ride from Uber or Lyft, or use public transportation.

However, if you find yourself snoozing in your car, make sure you sleep in the back seat, the keys are far away from the ignition, such as in the trunk of your car. These circumstances can make it difficult to prove that you have been operating the vehicle before you fell asleep.

If you have been arrested for DUI, request a free consultation with our Virginia Beach criminal defense attorney at The Law Offices of Daniel J. Miller today.

After the arrest, booking, and initial bail phases of the criminal process, the first stage of court proceedings which takes place is known as “arraignment.”

During arraignment, an individual charged with a criminal offense is called before a criminal court judge or magistrate, who:

• Reads the criminal charge(s) against the defendant
• Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed lawyer
• Asks the defendant how he or she pleads to the criminal charges (e.g. guilty, not guilty, or no contest)
• Chooses whether to alter the bail amount or to release the defendant on his or her own recognizance
• Announces dates of future proceedings in the case (e.g. preliminary hearing, pre-trial motions, and trial)

The arraignment hearing occurs once the prosecuting agency has filed formal charges. When the arraignment takes place is strictly regulated according to Virginia law. For instance, if the defendant is held in jail after being arrested, the arraignment usually takes place the following day the court is open. In some jurisdictions, the inmates are brought over to the courthouse for their arraignment or use video conferencing while remaining in jail. By contrast, if the defendant is released from custody, under his or her own recognizance, by posting bail or using the services of a bail bond agency, the arraignment is often scheduled for a few days later.

Do You Plead at An Arraignment? How Should I Plead?

At an arraignment, defendants typically enter an initial plea of not guilty. However, he or she can usually change a not-guilty plea—and plead guilty or no contest—at some later point in the proceedings, but the same generally isn’t true of a guilty or no contest plea.

The following are several reasons why defendants initially plead not guilty:

• No legal representation – At the start of the case, many defendants do not have anyone representing them. They haven’t received any qualified legal advice to determine the best course of action in their case.
• Unaware of the consequences – Without proper legal guidance, people who’ve been accused of a criminal offense do not understand the potential consequences of conviction. Even if the defendant is aware that he or she might serve time in jail, pay a fine, or lose his or her driver’s license, there are several other consequences to conviction that the court might fail to explain, such as the loss of employment or endangerment of a professional license.
• No discovery – In many cases, defendants do not receive any discovery by the time they’re asked to plead. Not having any access to the police report, photographs, recordings, and the details of the investigation can make it difficult for defendants to know the strength of the prosecution’s case against them.
• No deals – The purpose of plea bargaining—which typically happens after arraignments—is to receive some sort of benefit in exchange for a guilty or no-contest plea. Without a lawyer on your side to negotiate with the prosecution, a defendant who pleads guilty can be subject to the whim of judges and prosecutors.

If you have been arrested for a crime in Virginia, request a free consultation with our Virginia Beach criminal defense attorney at The Law Offices of Daniel J. Miller today.

Juveniles in Virginia who have been arrested, charged, and convicted of crimes might be under the impression that these offenses will remain on their criminal record for the rest of their lives. However, the state’s criminal justice system provides some relief in giving juveniles an opportunity to most past previous mistakes and crimes.

If you were under 18 years of age when you were convicted of a crime, then you may be able to get your criminal history record expunged. While expungement occurs automatically for some types of violations, there are exceptions for others.

Arrests & Dismissal of Charges

If a juvenile is found not guilty or the proceeding was otherwise dismissed, a juvenile can file a motion with the court for an expungement of those records without having to wait until turning 19 or until five years have passed.

Misdemeanor Convictions

If a juvenile is found guilty in a delinquency proceeding for an offense that would have been a misdemeanor—if committed by an adult—and there is no requirement for the Clerk of the Court to submit an abstract to the Department of Motor Vehicles (DMV), then the case can be expunged. However, a juvenile must first reach 19 years old and wait until five years have passed since the last hearing in the case. Then, on January 2—or some other date designated by the individual court—of the following year will the conviction be expunged.

Can Juvenile Felonies Be Expunged?

If a juvenile is found guilty in a delinquency proceeding for an offense that would have been a felony, the record for the offense are, unfortunately, never expunged. The Clerk of the Juvenile and Domestic Relations District Court is required to keep these records.

Additionally, the juvenile record can be used against the individual in future sentencing events, in the event the person is convicted of a criminal offense as an adult.

Motor Vehicle Code Violations

If a juvenile is found guilty of an offense of any violation of law involving operation of a motor vehicle, the theft of an unauthorized use of motor vehicle, alcohol-related boating offenses, or failures to pay fines or costs for traffic offenses, the records are not expunged until the individual turns 29 years of age. The logic behind this exception is that some traffic offenses, such as DUI or reckless driving, remain on a person’s driving record for 11 years. A conviction for such a crime committed by a juvenile at age 17 would remain on the juvenile’s driving record for 11 years, so 29 is the age at which all traffic-related offenses would be removed from a juvenile’s DMV transcript.

If you are interested in having your criminal record expunged in Virginia, contact The Law Offices of Daniel J. Miller and request a free consultation with our Virginia Beach criminal defense lawyer today.

When investigating a DUI and performing an arrest, law enforcement is obligated to obey rules and follow procedures that are designed to protect your rights, provide transparency and fairness in police work, and ensure the evidence they collect is unbiased and legal.

However, police frequently break these rules—typically by mistake. When they commit an error, the specific evidence they collected by ignoring protocols cannot be used in your case. When police make a mistake in your case, your criminal defense attorney can file a “motion to suppress” with the judge. If the judge grants this motion, the evidence will be “suppressed” or taken out of the case, which means the prosecutor cannot use it against you and the jury will never hear it. In some cases, the evidence that is suppressed is so important that the prosecution has no case without it, so you can essentially win your case without ever going to trial.

The following are the most common mistakes made by police in a Virginia DUI case:

• No reasonable suspicion – In order for law enforcement to pull you over, they need to have a valid reason in the first place. Typically, it is in the form of a traffic violation, such as speeding, changing lanes without signaling, or noticing a broken taillight. If the police do not have reasonable suspicion, then all evidence they collected is invalid.
• No probable cause – Before arresting someone, police must have probable cause, which means that they have enough evidence of DUI that a reasonable person would think you’re breaking the law. If law enforcement did not have probable cause for the arrest, any evidence collected post-arrest may be inadmissible. Cases where the judge rules that there is no probable cause are typically dismissed outright.
• Failure to properly administer a breath test – After an arrest, suspects are often required to take a breath test. Refusal of such test is considered illegal and subject to additional penalties. However, law enforcement must observe the suspect for 15 continuous minutes before administering the test to ensure the suspect doesn’t burp, vomit, or consume anything. Furthermore, there are strict rules regarding device calibrations. Any mistake in administering the test or calibrating the device means the test results are inadmissible in the courtroom.
• Failure to properly administer a field sobriety test – Prior to arrest, police may subject DUI suspects to field sobriety tests (FSTs) to evaluate whether they are intoxicated before choosing to arrest them. However, they must administer every FST in accordance with rules established by the National Highway Traffic Safety Administration, such as explaining each test, performing the test on level ground, and accounting for other factors that would affect the results such as age, physical fitness, or fatigue. If police fail to administer these tests in a proper manner, the FST evidence will be inadmissible in court.

At The Law Offices of Daniel J. Miller, we are committed to examining each stage of the police investigation, from their report on the initial stop and arrest to the evidence they submitted. If there are any discrepancies, our attorney can file a motion to suppress in order to have the evidence thrown out, and your case dismissed.

If you have been arrested for DUI in Virginia, contact us and request a free consultation today.