Blogs from May, 2020

In divorces that involve children, child support is often a contentious issue. It's no wonder as to why—the outcome of a child support case can heavily impact the financial stability of both parents post-divorce.

To that end, understanding how Virginia courts calculate child support is vital for parents entering a divorce. Knowing what to expect from your child support case can help you prepare for life post-divorce and fight for the best outcome for you and your child.

Understanding Child Support in Virginia

The purpose of child support is simple. Courts want to try and ensure that, when two parents get a divorce, their children maintain the same quality of life post-divorce that they enjoyed while the parents were married. Child support arrangements help courts achieve that goal, ensuring that both parents have enough financial stability to provide for their children.

In Virginia, the noncustodial parent typically pays the custodial parent (who the child lives with a majority of the time) child support. Since custodial parents often shoulder most of the costs for caring for a child, they often pay no child support.

Child support in Virginia is based on gross monthly income. Gross monthly income covers a wide range of income sources, including:

• Paychecks or salary. This often makes up the bulk of an individual's gross income.
• Wages, commissions, and bonuses. Extra sources of income like commissions from side gigs or performance bonuses also count toward the gross monthly income.
• Severance pay, pensions, veterans benefits, worker's compensation, disability, unemployment insurance, and Social Security. All of the most common benefits also count toward gross monthly income.
• Miscellaneous income sources. Lottery winnings or other sources like investment account earnings can also apply to the gross monthly income.

Gross monthly income combines these income streams before taxes or other deductions.

During the child support process, the court evaluates all of a noncustodial parent's income sources to determine their gross monthly income. The court then uses a formula to establish how much child support the noncustodial parent owes using their gross monthly income and the number of children they're supporting.

You can find Virginia's child support guidelines here.

Scroll down a little and you'll find a graph that shows how much parents owe in child support based on their gross monthly income and how many children they have. For example, using the graph, we can see that a parent who brings in $3,050 per month in gross monthly income and has two children owes around $768 in child support.

Is a Child Support Arrangement Set in Stone?

In a word, no.

A huge variety of factors can play into child support arrangements, including:

• Whether the child receives support from other family members;
• What the parent's custody arrangement is like (if the parents essentially have a 50/50 custody split, for example, neither party is likely to pay much in child support);
• How other court-orders like spousal support impact the noncustodial parent's income;
• Each parent's financial situation (a custodial parent who is exceptionally well off or can easily pay for childcare expenses may not receive much in child support, for example);
• Whether the child has any financial resources of their own (such as a job if they're old enough, or a savings account subsidized by parents or relatives);
• The parent's behavior throughout the marriage;
• Whether the parents may experience income shifts in the near future (such as benefitting from the sale of the marital home, whether one parent will likely start earning more soon, etc.);
• Any other factors the court considers pertinent to the case.

As you can see, the court has a large amount of leeway when presiding over child support arrangements. A child support attorney can help you protect your parental rights and fight for a genuinely equitable child support arrangement.

To schedule a consultation with our team and start speaking with a child support attorney today, contact our office online or via phone at (757) 267-4949">(757) 267-4949.

At the time of the writing of this blog, Governor Ralph Northam is just months away for signing into law a bill that will make the possession of marijuana under one ounce a civil penalty. This unprecedented move will significantly reduce the number of criminal convictions and puts Virginians a step closer to being legally able to obtain marijuana for recreational use. At a minimum, marijuana’s decriminalization will lead to greater use and with that more individuals driving under the influence of marijuana.

Under Virginia law, it is illegal to drive under the influence of alcohol and or drugs. But unlike alcohol, which carries a presumption of impairment at .08 BAC (See our video on DUIs), there is nothing telling a judge whether one is impaired when looking at raw data from a blood draw. The Courts look at a variety of factors, but the most relied upon facts are a combination of the blood results and the government’s forensic expert. This expert will connect the dots by testifying that the signs of impairment, which may be explained away by other factors, can only be explained by your use of marijuana.

This article will look at the defenses to driving while under the influence of marijuana and why it is extremely important to retain counsel who is at least as knowledgeable as the government’s expert.

The general rule is that when you drive on the roads of Virginia Beach or other cities in Virginia, you consent to give a breath or blood sample if the officer has reason to believe that you are impaired. Your failure to consent to giving a sample can result in the loss of your driving privileges for one year. So, when an officer stops you and smells an odor of burnt marijuana, be prepared to have them request a blood test.

The three primary defenses to driving under the influence of marijuana are challenging probable cause, challenging the blood test, and challenging the forensic expert.

Keeping Blood Test Results Out Is the Key to this Game

Challenging Probable Cause

In order to admit blood results, the prosecution must prove that there was probable cause to believe that you were impaired while driving.

A thorough cross-examination of the officer will include but not be limited to the following questions:

1. How long did the officer follow you, and were there specific signs of impairment?
2. Did you stop the vehicle once the officer activated their lights and sirens, and was that stop performed without issue?
3. Were you responsive when the officer asked you questions?
4. Were your eyes bloodshot, red and glassy?
5. Did you provide your license and registration without fumbling?
6. Was your attention divided?
7. Did you have any issues exiting the vehicle?
8. Did you need to lean on objects for support?
9. Did you follow instructions of the field sobriety tests?
10. Did the officer have to repeat themselves?
11. Did you perform the physically demanding tests well?

1. Blood taking performed properly
2. But what if the Court finds that there was probable cause? Now what? Virginia law requires that the blood draw be done properly:

1. Was implied consent read to you, and did you understand?
2. Did you give proper consent?
3. Was the individual who took the blood draw an LPN or CN?
4. Was alcohol used to clean the injection site?
5. Were two vials taken?
6. Were the vials properly labeled?
7. Were you given the opportunity to observe the process?
8. Were you given a form allowing you to send the untested vial to a lab?
9. Who maintained custody and control of the vial on its way to the lab?

The Government Expert – Cross-Examination

But what if the officer crossed his T’s and dotted his I’s? The game is not over. The witness from the division of forensic science is the one witness who remains inside the courtroom while the officer and other witnesses testify. He or she will then tie the results of the blood test to your impairment as if there are no other explanations for your performance. But not so fast—an attorney well versed in their language may be able to help.

Does the expert know the following:

1. Was the marijuana ingested by smoking, eating, or vaping?
2. That the rate of absorption differs depending upon how marijuana is consumed?
3. That it is impossible to know when the marijuana was consumed if they don’t know how it was ingested
4. That in ingesting marijuana, the absorption is slower as it goes through the liver to get into the bloodstream and that if it is smoked, it goes through the lungs and is absorbed much faster.
5. And that everyone’s experience with marijuana and its effects differ based upon how frequently they use.

These are just a few questions out of many that need to be asked on cross-examination. It is important to find an attorney that is well versed in this language and knows the lay of the land. If we can help you with this or any other matter, please give us a call.

To schedule a consultation about your legal rights in a criminal defense case—including DUI issues—please call us at (757) 267-4949">(757) 267-4949 or contact us online today.

It's been over a month since the World Health Organization declared that a new coronavirus (COVID-19) was officially a pandemic. As people and governments across the globe continue to take the COVID-19 pandemic more seriously, questions have arisen about how to handle individuals who refuse to wear masks or even cough on others as a sort of "threat."

If you've wondered, "could someone be charged with assault for coughing on another person during the COVID-19 pandemic?" You're not alone—and we've got the answers. Today, we're diving into how COVID-19 affects the criminal defense industry at large.

It All Started with... Ice Cream?

You may not remember this, but, earlier in 2020, a viral trend briefly kicked off. People—many of them in their teens and 20s—started filming themselves walking into grocery stores, opening ice cream containers, taking a lick, and putting the ice cream back on the shelf.

Disgusting, right? Well, it turns out it was also illegal. One person who filmed himself attempting the stunt in Port Arthur, Texas, pleaded guilty to food tampering. He was sentenced to 30 days in jail and a fine of $1,000. He also had to pay Blue Bell Creameries $1,565 in restitution.

Fast forward a couple of months into the COVID-19 pandemic, and we're seeing people display similar behavior toward the coronavirus. On April 7, a man in DeBary, Florida, purposefully coughed on a 21-year-old cashier because the cashier was wearing a mask. He told the cashier, “This is getting out of hand. This is why everywhere I go, I cough behind everyone with a mask on.”

Ultimately, what he did wasn't that much different than somebody pulling off the ice cream "prank" a few months earlier. Both acts display a disregard for the safety of other people and their wellbeing. But the consequences for intentionally coughing on someone during the COVID-19 epidemic could be much more severe than the penalties for licking some ice cream.

Can You Be Charged with Assault for Coughing On Someone During the COVID-19 Pandemic?

Short answer: yes. In Severn, Maryland, a woman got into a dispute with an employee at a housing complex. Her car had been towed, and she demanded compensation from the employee. When they refused, the woman grabbed their arm and allegedly said she had tested positive for COVID-19. The woman then told the employee they now had the virus, too, implying she had infected them.

The woman faced several charges, including second-degree assault, failing to comply with a health emergency order, and exposure by an infected individual.

Charges don't stop at assault, either. A woman in New York was charged with making a terroristic threat after claiming she had COVID-19 and coughing on people around her.

Why Is Coughing on Someone Assault?

Assault and battery laws vary slightly by state, but assault is generally defined as a premeditated or intentional act that either harms someone or causes another person to believe they are in danger of suffering from immediate bodily harm.

For example, let's say you get in a disagreement with someone and pull out a knife. If you say, "I'm going to stab you," you can be charged with assault even if you don't follow through on the threat, because the other person now has a reason to fear you're going to cause them bodily harm.

Assault charges for COVID-19 work in much the same way. A person who gets coughed on by someone who claims to have the coronavirus might reasonably fear that they now risk contracting the virus as well. As such, they can press assault charges.

To be charged with assault, an individual must:

• Know they're infected. As you'll notice in the other stories we covered, everyone charged with assault for COVID-19 has believed they have the virus, announced that information to others, and announced their intent to infect others with the virus. That's the equivalent of saying, "I'm going to stab you" while holding a knife, except using a disease instead of a physical weapon.
• Act recklessly. It may not be assault for someone with COVID-19 to go outside or be by other people, but it is assault if they knowingly take any actions that could expose others to the virus—which is why people who intentionally try to infect others get charged with assault.

We hope this blog has cleared up any questions you have about COVID-19 and assault charges. At The Law Offices of Daniel J. Miller, we help clients tackle a legal disputes across a wide range of practice areas, including family law and criminal defense.

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

There is growing interest in the use of cell phones to track individuals to slow the spread of the virus. The concept, which has already been successful in other countries, alerts the user if he or she has been within 6 feet of someone who later tests positive. In theory, all alerted individuals would then be tested and self-quarantined if the tests returned positive.

As can be expected there is controversy surrounding the use of what some may consider an intrusive device. Will the government request that Apple and Google install these apps automatically with their next updates? Will the default setting be to turn on or off the application? Does the implementation of this application without the express consent of the user violate our right to privacy?

As with any alleged intrusion, there is a balancing act. The Courts consider the degree of the intrusion versus the benefit that we may derive from its use. Against this backdrop, the Courts will often determine whether there are less intrusive means by which to get the same result.

In fact, legal challenges facing data mining are not new. Norfolk Federal Court is hearing the case of United States v. Okello Chatrie. In this case, Mr. Chatrie, an alleged bank robber, is challenging the use of Google data, which the police used to determine his identify. The practice, referred to as Geofencing, allowed the police to obtain a warrant for a list of all individuals near the bank at the time of the robbery. Mr. Chatrie is seeking to have the data gained from the Geofencing, which was then used as evidence in his arrest, “suppressed” from use by the prosecution on the basis that it was unlawfully collected. Without that data, there is no arrest to begin with.

The Fourth Amendment guarantees that individuals have a right to a “reasonable expectation of privacy.” The general argument against the use of Geofencing data is that it infringes upon the reasonable expectation of the privacy of all the individuals who come up in a search. The Fourth Amendment further protects against unlawful searches and seizures. This includes individuals having a right to be free from unreasonable searches. The government’s access to the Geofencing data allows them to know where an individual, who is otherwise an innocent bystander and has thereby given the government no reason to be “searched,” was located on the date of the offense.

The reasonable expectation of privacy standard is a subjective standard that has a long history of litigation in the courts. It will be interesting to see how the Courts rule on Geofencing and other issues. Motions to suppress evidence based upon a violation of one’s Fourth Amendment rights are complex and are determined on a case by case basis.

This article was co-authored by our founder and lead Criminal Defense Attorney Daniel J. Miller and former attorney James Weaver. Dan is a Hampton Roads native and has spent over 25 years representing clients in criminal defense matters in Virginia Beach and throughout Hampton Roads. James is an Associate Attorney at the firm. His practice focuses primarily on family law issues.

If you or a loved one is facing criminal charges and you would like to know whether your Fourth Amendment rights, or any other rights, have been violated, give us a call today at (757) 267-4949">(757) 267-4949 for a free consultation.

Recently a pastor with Lighthouse Fellowship church in Chincoteague was issued a criminal summons for holding a church service with more than 10 people in attendance. To fight back, the Church filed a 50-page complaint in Norfolk Federal Court against Governor Northam alleging that religious activities are being targeted and restrained more so than its secular counterparts. The complaint alleges that the Governor’s ban violates the church’s rights to freedom of speech, free exercise of religion, and peaceable assembly under the First Amendment. Specifically, the complaint seeks an immediate injunction so that individuals who want to attend church may do so at their own risk.

The Governor's order relies upon Section 32.1-13 of the Virginia Code which grants the board of health wide-sweeping authority to draft an order for the purpose of suppressing communicable, contagious, and infectious diseases. Giving this order teeth is Section 32.1-27, which makes any person who willfully violates, refuses, fails or neglects to comply with this order guilty of a Class 1 misdemeanor. A Class 1 misdemeanor carries the potential for twelve months in jail and a $2,500 fine.

The separation of Church and State has always been a hotly contested issue. The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause has led to hotly contested court battles which have resulted in things such as the removal of the Lord’s prayer in public schools, the removal of swearing in ceremonies for public office and the taking down of the ten commandments in courts of law. However, these hotly contested court battles did not involve the sweeping actions taken by state governments such as Virginia under a global pandemic. As the shutdowns continue and individuals are forced to pray remotely it will be interesting to see how this pans out.

As of the writing of this article churches in Kansas and Kentucky have reacted with similar lawsuits. On April 18^th the US District Court in Kansas issued a temporary restraining order prohibiting the police from enforcing their state’s ban against church gatherings. In Indiana, the Governor has expressed that churches are “essential” and may stay open if they practice social distancing and good hygiene.

Although the First Amendment’s religion clauses have been heavily and hotly litigated in the past, they have not been tested under the events of the current state and national environment, and it remains to be seen whether our government can indeed lawfully “silence prayer” by prohibiting church gatherings like our state has done in Chincoteague.

This article was co-authored by our founder and lead Criminal Defense Attorney Daniel J. Miller and former attorney James Weaver. Dan is a Hampton Roads native and has spent over 25 years representing clients in criminal defense matters in Virginia Beach and throughout Hampton Roads. James is an Associate Attorney at the firm. His practice focuses primarily on family law issues If you are interested in speaking to Mr. Miller about a criminal charge relating to the First Amendment, or regarding any other criminal charge, please call our office today to schedule a consultation.”