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Avvo Client's Choice Award 2019 - Andrew Sheridan Criado
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Avvo Client's Choice Award 2019 - Bret Danwill Offan Lee
Avvo Client's Choice Award 2019 - Benjamin N. Griffitts
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Avvo Client's Choice Award 2017 - Michael Andrew Robinson
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Avvo Client's Choice Award 2019 - Matthew Richard Crowley
Avvo Client's Choice Award 2019 - Seth Quint Peritz

The Coronavirus pandemic has shut down much of society, including many courts across the country. While any court closure has an impact on those with pending cases, the closing of a criminal court – where many of those who are impacted are in custody – raises obvious concerns.

On March 16, the Chief Justice of the Supreme Court of Virginia issued an order declaring a judicial emergency. In effect, the order suspended all deadlines and closed the courts for all non-emergency, non-essential functions. Initially, the order was for 21 days, and was set to expire on April 6. However, on March 27, the Chief Justice issued another order extending the judicial emergency until April 26.

Under the original order, all non-essential, non-emergency proceedings are to be continued. This means that all jury trials and trials held in front of a judge will be continued until at least April 26. However, the Court’s order does allow for specific procedures to continue. For example, the following hearings and proceedings can still be conducted during the judicial emergency:

Earlier this year, a state appellate court issued a written opinion in a Virginia drug possession case discussing whether the evidence presented proved that the defendant knew the drugs were in the center console of the vehicle he was driving. Ultimately, the court found that there was insufficient evidence to establish constructive possession, reversing the defendant’s conviction. The case presents a good example of the concept of constructive possession.

According to the court’s opinion, police officers pulled over the defendant for speeding. When the officer approached the car, he smelled marijuana and noticed that the defendant was nervous and sweating. The officers searched the car, finding a small baggie of marijuana in the center console. Also in the center console was a piece of crumpled up notebook paper with a single Oxycodone pill inside. There was no evidence presented regarding who owned the car, how long the defendant had been using the car, or where the marijuana was found in relation to the oxycodone.

At trial, the defendant convicted of possession of marijuana and oxycodone. The defendant appealed his conviction for possession of oxycodone, arguing that there was no evidence suggesting that the pill was his or that he knew about the pill’s presence.

In Virginia, most traffic citations are not criminal matters. However, when a motorist violates some of the more serious traffic laws, it may result in more than just a traffic ticket. Some traffic violations can end up in a criminal conviction, resulting in fines, costs, probation and even jail time.

One example of this type of offense is a Virginia DUI. Technically a traffic offense, a DUI will result in criminal charges being filed against a driver. A hit and run accident is another example. In February, a state appellate court issued a written opinion in a Virginia hit and run case discussing the defendant’s conviction for failing to stop at the scene of an accident. The case presents a thorough discussion of what the prosecution must establish before a defendant can be found guilty of this offense.

As is the case in any criminal trial, the prosecution must establish each element of the offense beyond a reasonable doubt. Under Virginia Code § 46.2-894, a person who is involved in an accident must stop as close to the scene as possible. In addition, a motorist must provide their “name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law enforcement agency, to the person struck” as well as anyone who was injured in the accident. Finally, the motorist must render reasonable assistance to anyone injured in the accident, including taking that person to the hospital or calling 911.

Earlier this month, a state appellate court issued a written opinion in a Virginia homicide case discussing whether a hit-and-run car accident could be the basis for a homicide conviction under state law. Ultimately, the court concluded that while not every hit-and-run accident can be the basis for a homicide conviction, neither are hit-and-run accidents categorically prohibited as a basis for such a charge. Thus, the court determined that whether a hit-and-run accident can serve as the basis for a felony-murder charge depends on the specific facts of each case.

Virginia’s felony-murder statute allows for someone to be convicted if they kill another person during the commission of a felony. The classic example of a felony-murder is when someone is accidentally killed during a bank robbery. Say, for example, the defendant’s gun accidentally discharges, or a co-defendant brings along a firearm to the surprise of the defendant. In either case, the defendant could be charged with felony-murder. However, because “malice” is a required element in a Virginia homicide conviction, the underlying felony must either be a violent crime, or a non-violent crime that was performed in a violent manner. The question here was whether a hit-and-run accident could meet such a definition.

According to the court’s opinion, the defendant was involved in a hit-and-run accident. The victim of the accident was someone the defendant knew, and had previously been involved in a relationship with. Evidently, a few days before the fatal accident, the defendant had struck the victim with her vehicle while he was riding a bicycle; however, both the defendant and the victim denied that was the case.

When most people think of identity theft, they picture someone using another’s information to withdraw money or make a purchase. However, earlier this month, a state appellate court issued an opinion in a Virginia identify theft case discussing whether someone can be found guilty of identity theft if they use their own identifying information to obtain money. Ultimately, the court affirmed the defendant’s conviction, concluding that there is no statutory requirement that a person charged with identity theft use another’s identifying information.

According to the court’s opinion, the defendant went to a bank and presented the bank teller with a check that was written to the defendant. The defendant gave the bank teller her own identification and asked to cash the check. The bank teller wrote the defendant’s driver’s license number on the back of the check, but suspected something was awry, as the writing on the check was not uniform. The teller called the account holder, who gave the phone to a police officer who was currently at her home investigating a burglary. As it turns out, the checks were in the process of being reported stolen. As the teller was on the phone, the defendant left the bank.

The defendant was charged with several crimes, including identify theft. The defendant admitted to possessing the check and trying to cash it. However, the defendant claimed that the check was given to her for payment for a television she sold to a woman named “Sug.” The defendant testified that she accepted the check, not knowing the woman’s real name because she needed the money. She also explained that she left the bank because she was scared. The account holder testified that she never gave anyone that check, and that signature on the check was not hers.

By Seth Peritz, Senior Attorney

In November of 2019, Prince William, Loudoun, Fairfax, and Arlington counties elected new Commonwealth’s Attorneys. Some of these prosecutors have hinted that they will not be prosecuting possession of marijuana and/or petit larceny cases. Apparently, some officers are informing defendants that they do not need to hire attorneys for these kinds of cases because the prosecutor will just “drop” them.

In reality, none of these new Commonwealth’s Attorneys have taken office yet, and no official plans have been set as to how the offices are going to handle these cases. Currently, there are programs, such as the deferred finding program, or the OAR program, that would end in these charges being dismissed. However, these types of “dismissals” may still have negative consequences, as you cannot remove these charges from your record, even though they show up as dismissed.

By Andrew Criado, Senior Attorney

The four most important words in criminal law: Beyond a Reasonable Doubt. What does that mean? It means that a person charged with a crime cannot be convicted and punished unless the prosecution can prove the defendant’s guilt in court beyond a reasonable doubt. The government’s evidence has to erase all reasonable doubt about the defendant’s guilt. What if, at the end of the prosecution’s case, there remains some doubt about whether the defendant committed the crime? Then the charge must be dismissed. What if the prosecution proves that the defendant probably committed the crime? Then the charge must be dismissed. In a criminal case, any conclusion other than proof beyond a reasonable doubt requires that the charge be dismissed—forever.

The government gets one shot at proving its case. This concept is important because it makes clear that a criminal case is about whether the government can prove the crime rather than whether the crime actually happened. There are many cases where the evidence shows that the defendant most likely committed the crime but the charge is nonetheless dismissed because the evidence does not meet the high burden of proof beyond a reasonable doubt.

By Matthew Crowley, Managing Partner

A Miranda warning is designed to be a protection against self incrimination, that is, a protection from defendants being forced to make statements or give other information that will help the government convict them of a crime. The Miranda case says that where a person is in custody and being interrogated (asked questions) those circumstances are similar to a forced confession. For that reason, the police must first warn a person who is in custody and being questioned that they have the right to remain silent, that what they do say will be used against them in court, and that they have the right to a lawyer. Unless the warning is given, the statements made by the defendant cannot be used in court.

Why did I receive a Miranda warning? Simply, because the police hope that you will make statements they can use to convict you. It is never just to “get your side of things,” it is always to build a case against you.  At the end of the warning, you may be asked if you understand you rights and are willing to waive them. The answer should be “no” 100% of the time until you can talk to a lawyer. Any statement you make, even if you declare your innocence, can be twisted and used against you.

By Seth Peritz, Senior Attorney

Fairfax County has a special program designed specifically for petit larceny and other misdemeanor theft cases. This is called the OAR program. The general requirements to be eligible for the program are a) this must be your first offense, and b) you must be charged with only one offense. The program consists of completing 1) your are required to plead guilty or no contest to the charge, 2) 50 hours of community service, 3) the shoplifter’s prevention course, and 4) a period of probation. Upon completion of all requirements the charge is dismissed.

There some problems with this program. First, the charge is not expungeable, which means that it will stay on your record as a dismissed charge permanently. This means that it is something that you will most likely have to explain to employers. This can also have an impact on both qualifying for and maintaining security clearances. Second, if you are not a United States citizen, this will still count as a conviction for immigration purposes. This is due to the fact that under Federal Law, a plea of guilty or no contest is sufficient for the conviction itself. Therefore, even though the charge is dismissed, it can still have a negative impact on your immigration situation. We at Robinson Law can assist you in managing your case to determine the best outcome for your specific situation and work towards achieving it.

by Benjamin Griffitts, Senior Attorney

It would be tough to think of a classification of criminal acts that stir up as much emotion and strong feelings as those in the sex crimes category. Homicides are clearly horrible and tragic for the loss of life and the emptiness that a deceased person leaves behind in their survivors. So while sexual assault cases in themselves do not result in a loss of a physical life, it is commonly thought that sex crimes are homicides of the soul and spirit.

It is also the one category of criminal acts that I hear so often from colleagues in the defense bar that they are just unwilling to take such cases. I understand the feeling. In a business that seems so often cold and shallow, it is difficult to separate your own emotions and feelings when you are faced with representing a defendant who is accused of doing something to someone that you experienced yourself or that someone close to you experienced; or someone is accused of doing something to a child, and you have a child of a similar age, or a niece or nephew. Attorneys are not robots. At the same time, our justice system fails if we decide that due process and Constitutional rights do not extend to those accused of committing the most horrific crimes. So we at Robinson Law do take on these cases.

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