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Earlier this year, a state appellate court issued a written opinion in a Virginia case involving a woman convicted of driving on a suspended license. The appeal involves the lower court’s decision preventing the defendant from pursuing an appeal of her conviction. Ultimately, the court concluded that the defendant’s appeal was proper and that the lower court should not have precluded her from bringing her appeal.

The Facts of the Case

According to the court’s opinion, the defendant was issued a summons on July 15, 2016, indicating that she was charged with driving on a suspended license. It was her fifth offense. The woman was convicted and filed an appeal with the circuit court. Defendants convicted in the district court have an automatic right to a new trial in circuit court.

In her appeal, the defendant raised several challenges to her conviction. However, the circuit court rejected each of her claims, and she was again convicted. The defendant then filed another appeal, this time to the appellate court. She referenced the circuit court case in her filing, naming a county official as the “appellee,” which is the party who is supposed to respond to the appeal.

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Traditionally, when a defendant seeks to challenge the legality of his arrest, he does so in a motion to suppress. In a motion to suppress, the court hears evidence about the recovery of the evidence in question and determines whether the state or federal constitution requires the suppression of the evidence.

However, in a recent case before the Supreme Court of Virginia, the court reversed the conviction of a defendant who was arrested for DUI. The facts of the case are straightforward: police attempted to stop a boater, who sped away and eventually ran ashore. The boater got out and ran. Law enforcement eventually caught him and ultimately charged him with operating a boat under the influence. The defendant refused a breath or blood test.

The defendant did not file a pre-trial motion to suppress. Instead, at trial, the defendant attempted to argue that his arrest was unlawful. However, the prosecution objected, claiming that the defendant waived his right to challenge the legality of his arrest by not filing a motion to suppress. The trial court agreed, prevented the defendant from challenging the lawfulness of his arrest, and then convicted him. The defendant appealed.

The Supreme Court of Virginia recently issued an opinion overturning an accused’s Virginia conviction for operating a vessel while under the influence. According to the record, the Virginia Marine Resource Commission (VMRC) noticed the accused operating his boat without a white running light. When the VMRC attempted to stop the man, he accelerated, ran the vessel into the ground, and jumped out. After reaching the accused, the VMRC arrested him for operating a vessel under the influence. The accused refused to take a breath or blood test.

At trial, the man attempted to introduce evidence regarding the lawfulness of his arrest; however, the lower court found that he had forfeited his right because the law required him to do so before trial. Following a conviction, the accused appealed under Virginia Code § 29.1-738.2, contending that the trial court erred in denying him the ability to present evidence to support his challenge to the lawfulness of his arrest.

Under Virginia law, individuals who operate a boat consent to provide a blood sample if the person is arrested within three hours of the offense. In this case, the accused argues that this implied consent statute only applies if it is predicated upon a lawful arrest. In reviewing the matter, the court looked to prior case law which limited the application of the implied consent law to situations involving a valid arrest.

Last month, a state appellate court issued an opinion in a Virginia DUI case, requiring the court to consider the defendant’s claim that police illegally seized her outside her home. However, the court held that law enforcement was justified in approaching the defendant while she was in her car that was parked in her driveway.

The Facts of the Case

According to the court’s opinion, a man standing with a group of people saw a car without its lights on making erratic movements. Once the car passed, the man hopped into his truck to follow the driver, thinking they may be intoxicated. The defendant, who was driving the car, stopped several times, but sped off when the man approached her vehicle. Throughout this “chase,” the defendant clipped a telephone pole with her car before pulling into her driveway.

The man called police from inside his car, which was parked across the street from the defendant’s home. He watched the defendant inside her car until police arrived, and then confirmed that police were investigating the right person.

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Getting pulled over by the police is stressful, even for those who have done nothing wrong. However, for drivers who have had a few drinks, the experience can be terrifying. One of the most common questions we get related to Virginia DUI offenses is what a driver’s rights are when it comes to refusing a breath test.

Under Virginia’s implied consent law, drivers agree to submit to a chemical test when a police officer suspects that they are intoxicated. Thus, legally, drivers do not have the right to refuse a breath test. However, a police officer cannot physically force a motorist to blow into a breathalyzer. If a driver will not take a breath test when requested, it is called a refusal.

The first step to understanding Virginia’s implied consent rule is to know the difference between the two types of Virginia breath alcohol tests. The first test, which is administered by police on the side of the road, is called the preliminary breath test (PBT). The results of a PBT are not admissible in court, and the purpose of a PBT is to help the officer determine if someone may be intoxicated. There is no punishment for refusing a PBT; however, doing so may prompt the officer to look a little closer for signs of intoxication that may justify a DUI arrest.

Earlier this year, a state appellate court issued a written opinion in a Virginia DUI case involving the defendant’s motion to suppress. Specifically, the defendant argued that the officer who pulled him over did not have reasonable suspicion to do so, and the trial court should have suppressed evidence that was recovered as a result of the stop. However, the appellate court disagreed with the defendant’s argument, finding that the traffic stop was supported by probable cause, affirming the defendant’s conviction.

The Facts of the Case

According to the court’s written opinion, police received a “be on the lookout” call reporting a man driving towards Bowling Green in a small green sedan to go get more beer. An officer went to one of the three businesses in Bowling Green that sells beer, and observed a small green sedan pull into the parking lot. There was one man inside, the defendant, drinking from a can. As the officer pulled closer, the defendant drove off.

The officer followed the defendant. A few moments later, the defendant approached a red light. When the light turned green, the defendant waited six or seven seconds before proceeding. The officer initiated a traffic stop and, upon approaching the vehicle, noticed that the defendant had glassy eyes, slurred speech and that there were numerous containers of alcohol in the car. The defendant was ultimately arrested and charged with DUI.

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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.

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.

But what if you were arrested and never received a Miranda warning?  Does that mean the charges will be dropped? Not necessarily. First, any statements that are volunteered to the police don’t require a Miranda warning. In other words, if you tell them things without being asked a question, Miranda doesn’t apply because you aren’t being “interrogated.” This is true even if you have already said you are remaining silent and have asked for a lawyer.

By Bret Lee, Senior Attorney

Northern Virginia is a hub of federal activity. Throughout Fairfax County, Arlington, Alexandria, and Prince William County are numerous federal agencies, parks, and buildings. Traffic crimes committed in national parks or on military property can result in different charges than you would normally face in Virginia state courts. One very common charge is driving while intoxicated (DWI) or under the influence (DUI), which becomes a federal charge if it occurs on federal property. DWI and DUI charges in Federal Court are a cross between state law violations and federal laws and regulations such as the CFR.

Whether you received a DUI charge on the grounds of Fort Belvoir or a DWI leaving Wolf Trap, you need to be prepared and have the right advocate by your side. Federal charges can have massive implications for immigration, job applications, and security clearances. There are a wide variety of consequences that a federal judge can impose in a DWI sentencing. Jail and loss of driving privileges are a real risk with these charges. Federal security clearances can be severely affected if you are convicted of a federal DUI.

By Andrew Criado, Senior Attorney

The first line of attack against a DUI in Virginia is the traffic stop. If the defense can show that the police stopped the car without a reasonable basis, the court will suppress the evidence gained from the stop, and the DUI will be dismissed.

When can the police stop a car?

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