Litigation News April 2018

This month in litigation news, a client was arrested for driving under the influence of alcohol and was charged with a litany of other traffic related offenses. Once our experienced attorneys got involved, we were able to obtain records from the police including a video, which was intended to capture the entire police altercation. After reviewing that video, our attorneys were able to find several critical mistakes made by the police officer in his arrest of our client. First, the video showed the officer waiting over 1 mile to pull the client over for the initial traffic offense. Second, once our client was pulled over, the officer asked our client to do a field sobriety test, but conveniently did the test outside the shot of the video. Third, in the video, you could hear the officer’s laid back attitude, jokes, and other comments regarding our client’s performance during the field sobriety test that was in clear contradiction to what was on the officer’s final report. Because of the officer’s mistakes, our attorneys were able to convince the Assistant State’s Attorney to dismiss the DUI in exchange for payment of the fine for the initial traffic violation. Portner & Shure attorneys will go to great lengths to investigate your case and prove your innocence.

Drugged Driving Responsible for More Deaths than Drunk Driving

A new study was released today by the Governors Highway Safety Association that showed, for the first time, drivers killed in accidents are more likely to be under the influence of drugs than alcohol. The data used for this study was compiled from 2015, and it showed that 43% of drivers tested in fatal accidents had some form of legal or illegal drugs in their system. Compare that number to just 37% of drivers tested having alcohol in their system at the time of the fatal accident.

This data is quite surprising for researchers because government officials and police officers devote much of their time and effort combating drunk driving. Drugged driving is almost never mentioned. With these new results, officials are certainly expected to expand their focus to include drugged driving checkpoints.

Additional data from the study also showed that of the 43% that tested positive for having drugs in their system, more than one-third of them had marijuana in their system. Many people believe that marijuana has minimal effects on a person's body, but the results of this study certainly tell a different story. As a driver, you need to be able to react to the driving conditions in a split second. Marijuana and other drugs inhibit a person's ability to react quickly.

It is interesting to note that while drunk driving remains a major problem in all roadways, it has been declining in recent years. However, as all resources have been devoted to reducing the number of alcohol related deaths on the roads, fatal accidents caused by drugged drivers have certainly taken a back seat. That is likely to change with these results.  More and more states are legalizing marijuana, yet the number of fatal accidents caused by drivers who tested positive for marijuana is skyrocketing.

If you have been charged with drunk or drugged driving in Virginia, call the experienced criminal defense attorneys at Portner & Shure today for a free consultation: (703) 916-1227.

What Can a Criminal Defense Attorney do for Someone Charged with a Crime?

The U.S. Constitution gives important protections to people who have been accused of crimes.  It is imperative to remember that these rights extend to all people, whether they are innocent or guilty.

Probably the most important right is that they can find an attorney to represent and protect their rights.   A criminal defense attorney has a number of tools that he or she can use in order to protect and advocate for their clients.

First, they have the ability to require that the prosecution provide discovery documentation so that they can determine what the evidence against their client is and what the government can and cannot prove.

Second, a criminal defense attorney can strategically prepare for a trial and determine what evidence and witnesses will best help their clients and minimize any risk of a bad result.

Finally, they have the ability to negotiate on the defendant’s behalf with the prosecution.  In many cases, even when the client may be guilty, a good defense attorney can exploit weaknesses in the prosecution’s evidence and case. This can force the prosecutor to agree to a much better result in court than if the defendant simply appears on his own.

If you’ve been charged with a criminal offense, call Portner & Shure today for a free consultation: (703) 916-1227.

What Happens if I'm Charged with my Second DWI in Virginia?

Drinking and driving carries significant penalties, not just life or death, but also criminally. Virginia is known to be one of the most strict states when it comes to criminal and traffic offenses. A first-time DWI in many cases will result in some jail time, as well as significant administrative penalties, including driver's license suspension and installation of an ignition interlock device.

However, a second subsequent DWI will result in even harsher penalties. If your second DWI is within five years of your first offense and your blood alcohol concentration is under 0.15, there is a mandatory minimum requirement of 20 days in jail and at least a $500 fine. If you are convicted in court, your driver's license will be suspended for three years. If your second DWI within five years of the first offense results in a blood alcohol concentration over 0.15, there is a mandatory minimum requirement of 30 days in jail and a fine up to $2,500.

If your second subsequent DWI is within ten years of the first offense and your blood alcohol concentration is under 0.14, there is a mandatory minimum requirement of 10 days in jail.

As you can see, Virginia does not mess around when it comes to drinking and driving. If you are charged with your second subsequent DWI in Virginia, call the experienced attorneys at Portner & Shure today for a free consultation: (703) 916-1227.

What is an Ignition Interlock Device and How Does it Work?

Many states, including Virginia, require the use of an ignition interlock device by anyone convicted of a DWI. Not everyone knows what they are or how they work. In fact, there are various providers that are able to install the device and monitor it each month. What many people do not know is that the fees associated with the interlock device are quite steep. There is an initial installation fee, plus a monthly fee, so the cost of drinking and driving can increase quickly.

Once installed, the driver must blow into the device in order to be able to start their vehicle. If there is no alcohol detected, the vehicle will start. Every so often, the driver will be required to blow into the tube. If the machine detects alcohol during what are called the "rolling tests," the machine will not allow the driver to continue operating the vehicle. If the machine detects alcohol during the initial test in order to start the vehicle, you will have to re-test a short time later. If you fail the test again, it will be reported back to the interlock provider as a violation and that can result in a longer period for using the device.

Drivers with an interlock device should always remember that the machine is VERY SENSITIVE. That means that any consumption of anything with even trace amounts of alcohol will likely result in a failed attempt. The most common substance that results in a failed attempt is mouthwash.

If you have been arrested for DWI in Virginia, call Portner & Shure for a free consultation and let us help walk you through the process: (703) 916-1227

Drunk Drivers and Speeders Beware in Virginia

Over the last several weeks, Virginia has seen a sharp increase in fatal accidents, many of which have been caused by drunk drivers and reckless drivers. As a result, Virginia police officers are increasing patrols all over roadways to catch drivers that have been drinking or speeding excessively on highways.

If you are caught drinking and driving and charged with a DWI, it is important to hire an experienced Virginia attorney to represent you to help avoid the most serious consequences. If you are charged with reckless driving, another very serious offense in Virginia, it is also very important to hire an attorney to represent you because if convicted, it is a criminal charge that will remain on your record. An experienced attorney will work to amend the speed reported by the police officer to a number that is under the reckless driving threshold (20 mph over the speed limit or over 80mph).

Call Portner & Shure today for a free consultation if you've been charged with a traffic or criminal offense in Virginia: (703) 916-1227.

Speed Limit in Virginia: Is it Really Enforced by Aircraft?

We’ve all seen those signs in Virginia stating that the speed limit is enforced by aircraft and we’ve all wondered if that is actually true. It turns out that Virginia state police have actually lacked the funding for using speed-detecting aircraft for the last 7 years. So if you’re one of the many people who have looked up at the sky while driving on Virginia’s highways and never saw an aircraft, that’s because there is nothing up there monitoring your speed. Instead, you should be paying attention to the roadways and looking out for state police vehicles detecting speed the old-fashioned way with radar guns. Virginia employs strict penalties for speeders and reckless drivers in Virginia. Remember that if you are 20mph over the posted speed limit, or you are over 80mph, that is considered reckless driving in Virginia. If you are pulled over for speeding or reckless driving in Virginia, call Portner & Shure and let us fight that ticket.

What to Expect in a typical 1st Offense Virginia DWI case?

·         Most importantly, you should retain an attorney to represent you in court because Virginia has some of the most strict penalties for traffic offenses, including DWIs.

·         Unlike other states, Virginia courts handle everything—the DWI charge, the driver’s license, and alcohol treatment through VASAP.

·         If your BAC is between 0.08 and 0.14, there is no mandatory jail time, although it is still possible.

·         If your BAC is between 0.15 and 0.20, there is a mandatory jail sentence of 5 days.

·         If your BAC over 0.20, there is a mandatory jail sentence of 10 days.

·         If you’ve been charged with DWI in Virginia, call Portner & Shure today to discuss your case, (703) 916-1227.

What are My Rights While Being Arrested in Virginia?

Criminal proceedings are usually initiated by an arrest. Officers can arrest you if they have probable cause, without a warrant. Probable cause is good reason.

However, except in dire/emergency circumstances the police will NEED a warrant to arrest you in your home.
In order to enjoy your rights, YOU have to be responsible for exercising them.
Although, police officers cannot "legally" force you to do most things-, frequently they will ask anyway.
If you are ever unsure about whether you are required to obey a police officer, you are allowed (and should) respectfully ask them whether they are ordering you to do something. If they are not ordering you; you are allowed to refuse. However, when you are given a direct order- follow this order with respect and as silently and quickly as possible.

In general, the arrest and booking process is often tedious and time consuming. Once you are arrested you have the right to the following:
1. Remain silent.
The Fifth Amendment of the United States Constitution guarantees that "no person... shall be compelled in any criminal case to be a witness against himself." Do not forget- police officers are knowledgeable in asking the "right" types of questions. They are not just trying to chat, these questions are designed with a specific intent. Also- even if you are speaking about something outside the scope of your arrest, this information can still be brought into trial. Anything said during the interrogation can be incriminating!

2. Be informed that what you say can (and likely will) be used against you in court
In Miranda V. Arizona the United State Supreme Court extended the privileges of the Fifth Amendment to individuals subjected to custodial interrogation by police. These are called your Miranda rights and you must be told them BEFORE you are interrogated. Custodial interrogation means questioning initiated by law enforcement officers AFTER a person has been taken into custody. In this situation an individual is deprived of his or her freedom of action.
The state is required to have procedural safeguards in place and to explain an accused person of their right of silence.

3. Consult an attorney and have an attorney with you during interrogations
When arrested, most individuals do not get the opportunity to call a lawyer for over two hours after the arrest. Knowing your right to call a lawyer, as soon as you are arrested, will likely shorten the time you are asked to wait. Police officers are not allowed to say things such as "you don't need a lawyer," and this is NOT a correct interpretation of the law and "should not be spoken by any enforcement officer to a person in custody under any circumstances."
If you begin talking, without a lawyer nor openly requesting one, this information is readily admissible in court.

4. Make a phone call or calls within a certain time after arrest 
ONCE you are arrested the state can only hold you in custody for a reasonable amount of time before formally charging you of a crime. In most states, like Maryland and Virginia, this time is 72 hours.

You must KNOW your rights in order to enforce them. Be careful. Know the law.

If you feel that any of these steps were violated during your arrest in Virginia- you need an experienced criminal defense attorney.  Contact Portner & Shure P.A. (703) 916-1227 today for a Free Initial Consultation.

Blood Alcohol Test is Called into Question in Virginia DUI Case

In Virginia, there is a penalty for refusing a blood alcohol test in a drunk driving arrest.  This is not an abnormal law by any means.  In fact, most states impose a penalty on drivers in DUI cases that refuse a blood alcohol test.  In Virginia, a first time refusal results in a one year license suspension and is only a civil offense.  Subsequent violations are considered criminal offenses.

            

            Virginia’s implied consent law makes it unlawful for an impaired driver to “unreasonably refuse” to have blood or breath samples taken for chemical tests.  When an officer pulls someone over for suspicion of DUI, they are required to advise the arrestee that anyone operating a vehicle on Virginia highways is deemed to have consented to chemical testing.  A Fairfax County Circuit Court DUI case is challenging this issue under the Constitution.  Can a state “punish a driver for refusing a warrantless test to measure blood alcohol content?”

            

            In the past, Virginia Circuit Court judges have rejected challenges to Virginia’s implied consent law.  The specific question presented in this case has never been brought before the Virginia courts.  If the Court was to rule in favor of the Defendant on this question, it would require police officers to obtain a warrant for administering the alcohol test.

            

           The argument being made by the Defendant in this case is that the “government cannot punish a person or rescind a governmentally bestowed privilege as a consequence for refusing to waive a constitutional right against unreasonable warrantless searches.”  Without a warrant requirement for obtaining this type of evidence, police are effectively forcing people to consent to giving up evidence against themselves.

            

           If you are charged with DUI or DWI in Virginia and would like a free legal consultation or if you would like more information on DUI or DWI please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/DWI-DUI/

Virginia DUI Attorney: Uber and Lyft Drivers with Ignition Interlocks is a Problem

While Uber and Lyft continue to be immensely popular, various safety issues have surrounded the ride-sharing companies.  A new issue that has cropped up involves drivers with interlock devices in their car who are forced to blow into the machine during a pick-up.  Uber and Lyft have both come under fire for their background check policies in the past.  According to company policies for both companies, “people who have been convicted of an alcohol-related offense within the past seven years aren’t allowed to drive for Uber or Lyft.”

            

            The background checks that both companies conduct before hiring a new driver are supposed to catch criminal and traffic convictions.   For two companies that tout how important safety is to them, it is surprising that there are some drivers that manage to sneak through the cracks.  For a job that is solely based on driving, there should not be anyone with an alcohol-related offense on their record who is driving people around as a job.  This has become a problem in many states because once an initial background check is conducted, there are no follow ups.  So, if a driver who had no convictions when the background check was conducted, but a year later gets a DUI, there is no requirement that further checks be conducted each year.  This is how we get Uber and Lyft drivers on the road with interlock devices installed in their vehicles.

            

            Virginia is a notable exception because, unlike many other states, there is a requirement for drivers to notify the ride-sharing companies of any incident that could jeopardize their employment.  There is a penalty of civil or criminal charges or a yearlong ban for failure to inform.

If you are charged with an alcohol-related offense in Virginia and would like a free legal consultation or if you would like more information please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/

Distracted Driving in Virginia: What Drivers do Before they Crash

            Car accidents are still the leading cause of deaths among 5-24 year olds and the second leading cause of deaths for everyone else.  A new study conducted by the Virginia Tech Transportation Institute researched 1,600 drivers over a 1-2 year period.  Numerous cameras, sensors, and radars were installed in the vehicles to track data from these drivers. 

 Over this span of time, there were 1,600 crash events, and 905 of them were severe accidents.  Some of the things observed in the serious crashes included fatigue, driver error, impairment, and distraction.  The risk of an accident doubled when drivers took their eyes off the road and used a cellphone, were reading, or using touchscreen devices in the car.  Throughout the entire study, statistics showed that nearly half the time drivers were involved in distracting activities.  The strongest correlation found by the study is when speeding occurs.  When a driver is travelling well above the speed limit and involved in a distracting activity, the risk of an accident is thirteen times higher than for an alert, law-abiding driver.  Drivers who were emotional were ten times more likely to be involved in a crash.

Interestingly, some activities that have been known to be considered distracting in the past, proved to not be as much of a factor in creating accidents.  For example, applying makeup and interacting with a baby in the car were the cause of very few accidents.

Even though the number of fatal accidents continues to decrease as car become safer, there are still far too many of these types of accidents.  So many of these accidents can be prevented because they are caused by distractions and driver impairment.  If all drivers could keep their cellphones out of their hands while driving and only driving when sober, the number of fatal accidents would likely drop significantly.

If you are charged with DUI, DWI, reckless driving, or another similar offense in Virginia and would like a free legal consultation or if you would like more information please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Alexandria or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/DWI-DUI/

Virginia Criminal Defense Attorney: What to Expect if I am Illegal and Have Been Charged with a Crime

Our Spanish department receives countless criminal/traffic consultation calls every day.  The one question we receive all the time is how will my immigration status be affected by these charges.  While we are not immigration law experts, there is certainly always a risk that your status could be in doubt, and in the worst case scenario, you could be deported.

            

            Whether it is a traffic offense such as driving without a license, driving on a suspended license, or driving under the influence of alcohol, or a criminal offense, your immigration status here is put at risk.  While our attorneys will help defend the charges against you, we always recommend that you contact an immigration attorney to find out exactly how your status will be affected.  There is an increased risk of serious immigration penalties if you are convicted for your crime, and that is why you must hire an experienced criminal defense attorney.

           

            Many people that are here illegally are usually too afraid to go to court and defend the charges against them.  That is not a good idea because the consequences only get worse because it becomes more likely that your immigration status will be affected.

If you are charged with a criminal or traffic offense in Virginia and would like a free legal consultation or if you would like more information please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/

Virginia Criminal Defense Attorney: Everything Drivers Need to Know About Speeding in Virginia

           In most states, speeding is not viewed as a serious offense, and for that reason, drivers do not worry about being pulled over for going over the limit.  In Virginia, drivers must beware of the harsh consequences they will face for speeding if caught by police.  There is no simple fine to pay and you go on with your life.  Instead, jail time is a real possibility for speeders.

            

          Laws in Virginia prohibit going over 80mph or more than 20mph over the speed limit.  If caught doing either of these things, you will be charged with reckless driving, which is treated the same way as a DUI: it is a criminal misdemeanor offense.  Many drivers speed every day on the roads without any hesitation.  If you are in Virginia, you should pay attention to speed limits and your own speed.  It is not worth it to risk going to jail and/or losing your driver’s license just because you want to get to your destination a few minutes earlier.

           

         If you receive a regular speeding ticket or a reckless driving ticket, it is important to hire an experienced local Virginia attorney to help you defend the charges and limit the consequences you face.  Every county is different in terms of what speed usually results in jail time.  Some counties will order jail time if you were going 100mph or more; others will order jail time if you were going 90mph or more.  Your attorney can try and drop the reckless driving charge down to a regular speeding ticket to avoid any jail time.  However, if you have multiple speeding offenses on your driving record, judges will not look favorably on that and a more severe penalty is likely.

If you are charged with speeding or reckless driving in Virginia and would like a free legal consultation or if you would like more information please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/

Virginia DUI Lawyer: Statistics Show a Decrease in Alcohol-Related Crashes and Fatalities

          A new study conducted by the Virginia Department of Motor Vehicles looked at the effects of ride-sharing companies on drunk driving statistics.  Sure, everyone touts how companies like Uber and Lyft as safe options because they cut down on the number of alcohol-related accidents.  But, there has never been a study that actually investigated whether the increased presence of ride-sharing companies has actually saved lives.  This study looked at numbers from 2013, 2014, and 2015.  Overall, since Uber and Lyft have become so prominent in several cities, the number of alcohol-related crashes and fatalities has dropped significantly.  For example, in 2013 there were 8,047 crashes related to alcohol and 253 fatalities.  One year later, the number of crashes dropped 5% to 7,666, and fatalities decreased as well.  Preliminary numbers for 2015 show an even bigger drop: 7,334 total crashes and a 22% drop in fatalities down to 195.

           

         While it is difficult to say that Uber and Lyft are the only reasons explaining this drop in alcohol-related crashes, scientists can say that these ride-sharing companies are certainly playing a big role.  Other things such as campaigns against drunk driving and increased patrol by police for DUIs are sure to be having an effect on these numbers as well.  A majority of people today have Uber or Lyft on their phone, and it is very easy to use.  These numbers show that requesting an Uber or Lyft actually saves lives.  There is no reason why anyone should be driving a car under the influence of alcohol.  It will certainly be interesting to see if this trend continues, especially as these ride-sharing companies continue to expand into more areas.

If you are charged with DUI or DWI in Virginia and would like a free legal consultation or if you would like more information on DUI or DWI please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/DWI-DUI/

Virginia Criminal Defense Attorney: Common Terms and What They Mean to You

We get asked questions all the time about what some of the most commonly used terms in criminal law.  We want to help explain them to you in a simple and easy way.

              

              1.      StetàThe State will stet your case, or place it on what is known as the stet docket, if they choose to not proceed at this time.  In other words, whatever charges are placed on the stet docket are being postponed, and most times, it is an indefinite postponement.  A stet is not a conviction.  For one year from the time the charges against you were placed on the stet docket, the State can choose to reopen your case, but that is very rare.  The only way that will happen is if you commit another crime during that period.  After three years of inactivity and no new criminal charges, you are eligible to have it expunged from your record.  Before this time, the charges do appear on case search and can be seen when running a background check.

               

             2.      Nolle Prosequi (nol pros)à This means that the State is dropping the charges.  It is the equivalent of a dismissal.  However, charges that are noll prossed will still appear on case search until they are expunged, which can be done immediately.

               

             3.      Expungementà The general rule is that if charges against you were dismissed, noll prossed, or you were found not guilty, it is possible to have these charges expunged from your record so that they do not appear in case search or in any background checks.  Each case is different, therefore, sometimes the general rule does not apply.  Any criminal charges or serious traffic charges (i.e. DUI) in which you were found guilty or plead guilty cannot be expunged.

Remember, these are only the basics regarding each of these terms, and the laws in Virginia are very complex.  If you are charged with a crime in Virginia and would like a free legal consultation or if you would like more information on this topic please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/

Vienna DUI Attorney: Increase in Traffic Deaths Caused by Drunk Drivers

           Nationwide, fatal car accidents are happening at an alarming rate with the culprits being distracted drivers and drunk drivers.  This trend is also true in Virginia.  Due to an increase this year in traffic deaths on Virginia roadways, Virginia State Police are increasing DUI patrols as the holidays approach.  Police want people to “Drive to Save Lives.”  For example, just in the week surrounding Thanksgiving, nine people died on Virginia highways.  What is even more alarming is that only one of those people was wearing a seatbelt.  Even though seatbelts do not guarantee a person survives an accident, they do however dramatically increase the likelihood of survival.

            

           This year in Virginia, 19 more people have lost their lives due to traffic crashes than last year.  Virginia Police are trying to do whatever it takes to protect drivers from fatal accidents.  While police will be focusing on drunk drivers and reckless drivers, they will also be on the lookout for drivers who are not using a seatbelt.  Driving to save lives can only happen if drivers use seatbelts, pay attention while driving, and choose not to drink and drive.  Police officers can only do so much to save lives.  It is up to drivers to actually take action in order for positive change to occur.

All of these fatalities on Virginia roadways are preventable.  Police hate seeing these types of accidents keep occurring, and now they have been forced to implement a zero tolerance crackdown on several behaviors.  Warnings will no longer be handed out by police, and instead, citations will be given to drivers who are caught violating one of these deadly-accident-causing offenses.

If you are charged with DUI or DWI in Virginia and would like a free legal consultation or if you would like more information on DUI or DWI please feel free to contact our office at (703) 916-1227 and schedule an appointment at our office in Vienna or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/DWI-DUI/