Blogs from August, 2020

Many believe that a dismissed charge automatically falls off their criminal record. This is not true. Don’t think it matters? Many employers perform simple background checks and overlook potential candidates because of a past charge even when that charge has been dismissed.

In order to have a charge removed from these lists one must file for an expungement in the Circuit Court in which the charge originated. But not everyone under Virginia Law is eligible for an expungement. HERE IS WHAT IS REQUIRED:

1. THE CHARGE MUST BE DISMISSED ON THE MERITS OR BY MOTION OF THE DEFENSE OR PROSECUTION- Many cases that come before the Court are dismissed on first offender grounds. This means that you agreed that the evidence was sufficient to convict and opted to have the case continued and later dismissed by completing community service, drug, alcohol or anger management classes. If this is the case you are not entitled to an expungement.

2. NO OTHER CRIMINAL HISTORY - The Court may require you to show that the existence of the charge in some way materially affects you. Often times, the Commonwealth will object to expunge your dismissed charge if you have other convictions. In this case, you must be able to present credible evidence suggesting that the existence of this charge on your record materially affects you. The most common theme presented is on the grounds that the dissemination of this charge effects your ability to maintain or find employment.

As with any case, your ability to be successful on the merits of your request for expungement relies upon the ability of your attorney to present a well- reasoned argument and to present to favorable evidence. If we can help you with this or any other matter, please give our criminal defense attorney a call at (757) 267-4949">(757) 267-4949.

From limiting your professional prospects to harming your financial stability and beyond, receiving a conviction for Driving Under the Influence (DUI) can significantly impact your life,

If you're dealing with a DUI case, you may wonder if there's a way to reduce the severity of the charge. Well, read on, because today we're giving you a run-down of what you can expect from being charged with a DUI in Virginia, and how it may be possible to reduce those charges.

Understanding DUI Charges in Virginia

It's important to know that, unlike some states, Virginia uses implied consent statutes. Under implied consent laws, drivers must consent to a blood or breath test if an officer requests one. Refusing a test can result in a one-year license suspension.

To qualify for a DUI, the driver must have a blood alcohol content (BAC) of 0.08% if over the age of 21, 0.02% if under the age of 21, or 0.04% if they're operating a commercial vehicle.

A first-time DUI in Virginia is a Class 1 misdemeanor, and carries the following penalties:

• A $250-2,500 fine;
• One-year license suspension, and;
• A 5-30-day jail sentence if the driver had a BAC of 0.15% or higher.

Individuals who receive a license suspension after being convicted of a DUI may be able to obtain a restricted driver's license. A restricted license allows the owner to travel to essential locations, like work or school, but prohibits them from using their vehicle excessively. The court may require DUI offenders to engage in certain activities to qualify for a restricted license, such as installing an ignition interlock device (IID) on their vehicle.

Additionally, individuals convicted of a DUI in Virginia must complete the Virginia Alcohol Safety Action Program (VASAP), which can entail up to 20 hours of classes. The program is designed to evaluate an individual's dependence on alcohol or other illegal substances and help them understand how to manage substance abuse before they regain access to their driving privileges.

If DUI offenders commit multiple offenses, especially within a five or ten-year period, DUI penalties increase exponentially with each offense.

A second DUI offense in Virginia carries the following penalties:

• A minimum $500 fine;
• Driver's license revocation for up to three years, and;
• A jail sentence of up to one year.

If the second offense occurs within ten years of the first offense, the offender receives a mandatory 10-day jail sentence. If the offense occurs within five years, the offender receives a minimum 20-day jail sentence.

A third DUI offense carries the following penalties:

• A minimum $1,000 fine;
• Indefinite driver's license revocation, and;
• Prosecution as a Class 6 felony.

If the third offense occurs within ten years of the second offense, the offender receives a mandatory 90-day jail term and must permanently forfeit their vehicle. If the third offense occurs within five years, the offender must serve a six-year jail term.

Various factors can also heighten the severity of DUI penalties, depending on how the driver behaved in the vehicle. If the driver caused significant property damage, drove under the influence with a minor in the car, or killed or injured another person while DUI, the penalties can increase exponentially.

As you can tell, Virginia takes drunk driving seriously, and heavily penalizes DUI offenders. If you or a loved one are facing a first-time DUI charge, you may be wondering, "is there some way I can reduce the severity of these charges?"

Reducing DUI Charges in Virginia

If the offender is charged with a second or third DUI offense, it will be difficult to reduce the severity of that charge. However, it may be possible for first-time DUI offenders to get their DUI charge reduced to a "reckless driving" charge.

Most commonly, DUI offenders reduce the severity of their charges through plea bargaining. In a plea bargain, the offender pleads guilty or "no content" in exchange for reduced penalties. First-time DUI offenders may be able to get a DUI charge reduced to a reckless driving charge (frequently called a 'wet reckless') by working with the prosecution.

Whether an offender can reduce their DUI charge to a wet reckless often largely depends on the specific circumstances of their DUI charge. First-time offenders will have an easier time receiving a reduced charge if they:

• Had a low BAC at the time of their arrest or when they were pulled over,
• Did not take any reckless actions while committing DUI,
• Did not damage property while committing the DUI,
• Did not harm or kill anyone while committing the DUI,
• Show remorse for their actions and are willing to actively cooperate with law enforcement, state officials, and prosecution to avoid committing a DUI in the future. This may involve agreeing to install an IID in their vehicle, attending alcohol and substance classes, etc.

If the offender's defense makes a good enough case to the court and prosecution, and all parties agree that reducing the DUI charge to a less severe charge is in the best interests of everyone involved, the offender may receive a reckless driving charge instead of a DUI.

What Are the Benefits of Reducing a DUI Charge?

Reducing a DUI charge to a reckless driving charge may result in lesser penalties, like a lower fine or a reduced license suspension.

However, the other benefit of receiving a reduced charge is how it reflects on your criminal record later down the line. Having a DUI charge on your criminal record can affect your professional prospects and other areas of your life, making it harder to pass background checks for authority figures like employers and landlords. Reducing a DUI charge can help you succeed in all your endeavors.

At the Law Offices of Daniel J. Miller, we can help you navigate your DUI case and work with you towards a more favorable outcome.

To schedule a consultation with our team, contact us online or via phone at (757) 267-4949">(757) 267-4949.

Child support arrangements can be contentious, having the potential to significantly affect the financial stability of all parties participating in the agreement. If you're involved in a child support order, you may be wondering what the penalties are for falling behind on support.

Well, wonder no more. In today's blog, we're giving you a comprehensive overview of what you can expect if you fall behind on child support in Virginia.

How Can Parents Get Child Support Enforcement in VA?

If a parent misses child support payments, they're considered "delinquent" on child support. The Virginia Division of Child Support Enforcement (DCSE), a division under the Virginia Department of Social Services, is responsible for enforcing child support delinquency penalties.

If a parent falls behind on child support, it's up to the other parent to take action and address the issue. To notify the DCSE that a parent has fallen behind on child support, the noncustodial parent (or whichever parent receives support) must file an application for child support enforcement services with their local DCSE office.

To file an application with the DCSE, the parent seeking child support enforcement must provide the following documents:

• The current child support order they wish to enforce;
• Any administrative support orders related to the support arrangement, the child's medical condition, or any other factors pertinent to the case. If the child relies on child support payments for medication or medical treatment, this process can help the DCSE prioritize the case and ensure the child receives the care they need.
• Birth certificates for any children involved in the order;
• Paternity documents supporting the parental status of both parties;
• Guardianship orders appointing the applicant as the child's legal guardian, if it's relevant to the case;
• Any protective orders involving in the co-parenting arrangement.

Once the DCSE receives the application, the department will review it and decide what steps officials need to take to address any child support delinquency. Since the DCSE uses an online portal for child support payments, it's fairly easy for DCSE officials to confirm that a parent fails to comply with their child support obligations and take action against the delinquent individual.

What Are Child Support Delinquency Penalties in VA?

The DCSE can take the following actions against delinquency child support payors:

• Withholding income from a variety of sources. The DCSE can withhold income from wages, Social Security and unemployment benefits, Worker's Compensation, and veteran disability compensation.
• Placing liens on a delinquent's property;
• Garnishing state and federal tax refunds;
• Suspending transportation licenses (driver's license, pilot's license, etc.), as long as the delinquent parent is behind by 90 days or more.
• Reporting the delinquent parent's actions to credit bureaus, hurting their credit score.
• Voiding the delinquent's passport until they make up for missed child support.

The DCSE does not have complete authority to enforce child support delinquency. For example, the DCSE does not have the ability to jail child support delinquents by default. To jail an individual, DCSE professionals must file a contempt of court actions case against the child support payor, which can result in a jail sentence depending on the case.

The DCSE also cannot withhold a payor's wages if doing so would jeopardize the payor's ability to look after their own basic needs. In those cases, the DCSE may work with the payor to try and modify the child support order so they can feasibly handle their child support obligation.

The COVID-19 pandemic introduced another wrinkle into child support arrangements: stimulus checks. Government entities can seize the $1,200 COVID-19 stimulus intended to stimulate the economy if the recipient is delinquent on child support.

I'm Behind on Child Support—What Should I Do?

If you're behind on child support, your first priority should be consulting the DCSE to let DCSE officials know you're aware of the delinquency.

DCSE officials handle child support delinquency on a case-by-case basis. While some child support payors may refuse to comply with a support arrangement because they believe it's unfair or just don't want to, many simply lack the means to pay for their support obligation due to circumstances outside of their control. For example, a payor might lose their job, making them incapable of paying for child support due to a loss of income.

If DCSE officials determine a parent cannot pay for child support due to a substantial change in circumstances (a medical emergency, losing their job, etc.), they'll often try to help them get back on track. If the loss in income is temporary, DCSE may help the delinquent parent set up a repayment program. If the delinquent parent's circumstances have changed for the foreseeable future, the DCSE may work with them to file a modification case with the court, helping the delinquent parent obtain a more equitable support arrangement.

Whatever the case, being honest and forthright with DCSE officials is your best recourse if you can't pay for child support. The more forthcoming and proactive you are when dealing with your delinquency, the more amicable DCSE officials are likely to be.

At the Law Offices of Daniel J. Miller, we help clients obtain equitable child support orders that allow their child to thrive.

To schedule a consultation with our team for your child support enforcement case, contact us online or via phone at (757) 267-4949">(757) 267-4949.

What does the prosecutor have to prove and what are the penalties?

TYPES OF PROTECTIVE ORDERS - There are three different varieties of protective orders.

Emergency protective orders – lasts approximately 72 hours and can be obtained from a Magistrate or Judge by the petitioner or a police officer without the presence of the respondent.

Preliminary protective orders – Generally last approximately two weeks and is issued by a Judge without the presence of the respondent.

Permanent protective orders. – Can be entered for up to two years and usually occurs after a full hearing on the merits of the case.

Although each is different in terms of duration and how a petitioner obtains one (see our video on protective orders by clicking here) they all carry the same consequence if you violate the terms.

NOTICE - When the Court issues a protective order and you are served with a copy you are presumed to be on notice of the order’s provisions. These provisions include but are not limited to no contact with a petitioner and their family members, sole and exclusive use of a residence, prohibiting further acts of violence, and in some instances prohibiting you for terminating utilities. Each violation of the Order’s terms constitutes a separate and distinct charge.

TYPICAL VIOLATION - The most common violation occurs when the respondent is required to have no contact with the petitioner and the respondent or third party at the respondent’s request reaches out to communicate because they need to obtain items from the home or because they are responding to a text/ call from the petitioner or they want to speak with their children. Although the plain meaning of “no contact” is not contained in the actual order no contact means no in-person contact, no phone calls, no text messages, no emails and no third party contact.

THE CONSEQUENCES – It is a class one misdemeanor if you violate the terms of a protective order. If found guilty the maximum punishment for this crime is 12- months of active incarceration, a part of which may not be suspended, a $2500 fine and the reinstatement of a new protective order for up to two years

There are many technical defenses that may be available to you that only an attorney well versed in evidentiary rules and procedures will be able to provide. If we can help you with this or any other legal matter please give us a call at (757) 267-4949">(757) 267-4949.