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Articles Posted in Traffic Law

Earlier this year, a state appellate court issued a written opinion in a Virginia gun case discussing the inevitable discovery rule, which allows the admission of evidence that was otherwise illegally obtained. The justification for the rule is that, even without a police officer’s illegal actions, the evidence at issue would have eventually been discovered through legal means.

The Facts of the Case

According to the court’s opinion, two police officers stopped a car because it had no license plates on the front or rear of the vehicle. Initially, the officers did not notice any indications that there was contraband in the car. The officers took the defendant’s license back to their car to run it for warrants. During this time, the two officers could be heard discussing ways they could search the defendant’s car. One officer suggested they ask for consent, and that if the defendant refused permission, then “there’s definitely something in that ******* car!”

The defendant’s license came back, showing he had a warrant. One officer pumped his fist in a “yes!” motion and explained that they could search the area immediately around the defendant as a search incident to the arrest. The other officer corrected the first officer, stating that they could search the whole car because the car would need to be towed, and they would need to conduct an inventory search.

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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.

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 Andrew Criado, Senior Attorney

How long can a traffic stop be?

If the police observe a traffic violation, they may stop the car. But how long can that stop last? Surprisingly, until 2015 there wasn’t a clear legal answer to this common situation. In 2015, the U.S. Supreme Court addressed this question in Rodriguez v. United States. Rodriguez had been stopped by the police for driving on the shoulder of a roadway. The officer spoke to Rodriguez, obtained his information, ran his license, and then issued him a ticket. After the officer issued the ticket, however, he didn’t let Rodriguez go. The officer instead held Rodriguez on the scene and then walked his police dog around Rodriguez’s car. The dog alerted that there were drugs present, and the officer searched the car and found drugs.

By: Seth Peritz, Senior Attorney

July 1, 2019 addition to reckless driving – Va. Code §46.2-861.1

Aside from all of the Reckless Driving statutes that have been in existence for a while, recently, the Legislature passed a law making passing an emergency vehicle on the roadway a misdemeanor offense and combined it with the other Reckless Driving statutes.

I’ve had a handful of people ask me lately if displaying a certain ‘warning’ on your car window will excuse you from complying with a DUI checkpoint. The message reads something along the lines of: “I remain silent. No searches. I invoke my right to an attorney.” This won’t work in Virginia. A valid checkpoint is a lawful stop and you are required to provide your license and registration.

DUI checkpoints have many names – “roadblocks” and “traffic safety checking detail” are among the most common. Police are not only required to minimize the delay time for each vehicle at a roadblock, but they are also not authorized to stop every car passing through. Typically, they briefly detain every fourth or fifth car, but the mathematical equation they employ varies.

If the officer believes you’re driving under the influence, you will be asked to move your vehicle to the side of the road for additional questioning. Police may have a reasonable suspicion that you have consumed too much alcohol prior to driving if you show any of these signs:

Have you ever wondered when a police officer is authorized to search you? Or if he has enough evidence against you to make an arrest? This is where the familiar terms “reasonable suspicion” and “probable cause” come in to play. These concepts are fundamental in determining if and when a person can be detained for questioning, searched and arrested (seized).

The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures. But what exactly does ‘unreasonable’ mean? Rather than following a neat, concise set of legal rules, reasonable suspicion and probable cause are based on the circumstantial interpretation made by the police officer(s). However, the officer’s interpretation must align with the Constitution, which is not always the case. In this week’s post I break down these two terms and provide examples through hypothetical DUI stops.

● Reasonable suspicion for an investigative stop – An officer can briefly detain a person if he has a reasonable belief that a crime has been, is being, or will be committed. The officer may also perform a limited search (frisk) of the outside of the person’s clothing if he has a reasonable belief that the person is armed. The officer’s belief must be based on facts or circumstances. In other words, an officer cannot simply “guess” or “feel” as though a crime has been, is being, or will be committed.

If you’re pulled over for a simple traffic violation, you may feel intimidated. If you’re pulled over after you’ve been drinking, that intimidation is often accompanied by a mix of emotions – especially if you don’t know your rights! The Commonwealth of Virginia is among the strictest states when it comes to drinking and driving. Although an officer doesn’t need much to charge you with DUI in Virginia, the charge must be supported by evidence for a conviction to follow it. This week’s blog demonstrates what to do (and not do) in order to leave the prosecution with as little evidence against you as possible.

In order to justify a traffic stop, the officer must have reasonable suspicion that you are in the process of committing a crime, you have committed a crime, or you are about to commit a crime. Most individuals arrested for DUI or DWI are originally pulled over for speeding, failure to fully stop at a stop sign, swerving, or some other type of erratic driving behavior (i.e. you have committed a crime). However, just because you drank before you drove, doesn’t mean you are guilty of DUI or DWI. Please visit our DUI & DWI page to understand the difference between driving under the influence and driving while intoxicated.

IMMEDIATELY AFTER THE STOP

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