Reckless Driving: What Is It and What Are My Defenses

                Traffic citations may be given to a driver for a number of reasons, perhaps a broken light, expired registration, failure to obey traffic signals, and of course speeding. These citations can become more serious if the officer deems your actions as being reckless. Individuals commit the offense of driving recklessly every day unknowingly. Article 7 of Virginia Code defines reckless driving as “irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person”. Some examples of reckless driving are:

• ·         exceeding 80 MPH
• ·         driving 20 MPH over the posted speed limit
• ·         racing your vehicle
• ·         passing an emergency vehicle in route
• ·         failing to slow your vehicle when approaching a hillcrest where the other side is not visible
• ·         passing a stopped school bus
• ·         driving with faulty brakes/equipment
• ·         driving at a speed that is considered unsafe for current weather conditions
• ·         weaving an older vehicle between lanes at a fast speed
• ·         driving on a road that is not open to the public
• ·         driving in the wrong lane
• ·         operating a motor vehicle while suffering from lack of sleep/falling asleep while driving
• ·         passing another vehicle at a railroad crossing

Essentially, driving recklessly is any offense that poses a threat to the life of another driver. When one is charged with the violation of reckless driving, there are two methods of defense your attorney is able to use in court. One, they will attack the evidence attached to your case, and two try to bargain with the judge to why you do not deserve a conviction as harsh as reckless driving. Regarding the evidence, if the police officer that cited you did not calibrate their speed measuring device, or did not have proof of calibration in the proper format, most likely your case will be a success.  In these situations it is always best if you have a clean record, and completing a DMV driver improvement and/or an aggressive driving avoidance class will help in your favor. If you are the parent of a child who has been charged with driving recklessly, it is best to appear in court with your child and to inform the judge that punitive measures have been taken at home. Even if you are found guilty of the charge, generally the judge will lessen your conviction if you have taken these preliminary steps.

 If you or a family member have been charged with a reckless traffic offense in Virginia and would like a free legal consultation or if you would like more information on a serious traffic offense 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/

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.

Virginia Courts to Implement New Plan to Pay Traffic Fines

        Every year thousands of licensed drivers are cited for various offenses they have committed while on the road. Consequently, these drivers are now responsible for paying their fine in a timely manner to avoid further punishments. For many, paying off a fine may seem like a fair trade in comparison to perhaps community service or serving time in a detention center. For others, paying a fine can be detrimental to their family’s finances. Traffic fines can range anywhere from a few dollars to a few thousand dollars. When a driver is not able to pay off their debts to the state, they can lose their license. People depend heavily on being able to drive themselves to work, school, or other important places, taking away their license limits their mobility and makes it difficult to maintain their jobs. The current rules are only punishing these people more than they need to be punished.

In efforts to avoid this tolling process, Virginia courts have attempted to create a payment plan for their offending drivers. On paper this may have seemed like a great plan, in reality some individuals are still not able to pay down their monthly dues, leading to more severe consequences. A driver may have a few hundred dollars owed to one court, and a few hundred to another court, and the worst part is that none of the courts are aware of the other fines that are due. Most judges are not aware, and not consider the snowballing effect they could be creating by making another payment plan for their offender. It has been suggested that courts call for more flexible collection demands, along with using community service to pay back their debts to the state instead of fines.

      If you are charged with a serious traffic offense in Virginia and would like a free legal consultation or if you would like more information on a serious traffic offense 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/

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/

Virginia DUI Attorney: The Consequences of Driving Under the Influence

  1.       Driving under the influence in VA is a serious charge with harsh mandatory sentences.

a.       The amount of jail time you could face, the fine, and length of license suspension depend on two things – your BAC, and the number of priors you have.

  2.       First time offenders

a.       With a BAC below .15 you will not face mandatory jail time, but a judge can impose a sentence up to one year.  If you caused an accident you could definitely still be looking at jail time even if it’s your first time and you have a low BAC.

b.      A BAC above .15 carries a mandatory minimum jail sentence of 5 days.

c.       A BAC above .20 will get you a 10 day minimum sentence.

d.      Your license will be suspended automatically for 12 months.

                                                               i.      In order to get a restricted driver’s license, you’ll have to install an ignition interlock device on your vehicle and be monitored through VASAP – the Virginia Alcohol Safety Action Program.

  3.       Unlike in Maryland, there is no probation before judgment for first time offenders.

a.       Every guilty finding results in a conviction.

b.      One way an attorney can help first time offenders is to broker an agreement with the State’s Attorney to an amended charge.

                                                               i.      For example, first time offenses with a low BAC can sometimes by pleaded down to a “wet reckless” charge, which is a type of reckless driving charge.

                                                             ii.      A wet reckless doesn’t count as a DUI offense for purposes of your criminal record and carries no mandatory jail time. 

  4.       Second time offenders

a.       For second time offenders, the stakes go way up.

b.      If it’s your second offense in five years, you’re facing a mandatory minimum of a 30 day jail sentence.

                                                               i.      If your BAC is below .15, you might get out in 20 days, but if your BAC is above .15, you’ll serve the sentence day for day.

                                                             ii.      A BAC above .20 will get you a mandatory 40 day sentence.

c.       All second time offenders will see their license suspended for three years.  You won’t be eligible for a restricted license until one full year of hard suspension is served.

  5.       Third time offenders

a.       A third DUI within ten years is a felony and carries a 1-5 year sentence to be served in state prison.

b.      For offenders with three DUI’s in five years, the mandatory minimum of executed time in prison is six months.

If you are charged with DUI/DWI 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/

As Prom and Graduation Season Begins, Officials Warn Students About Drinking and Driving

           Prom season is upon us in Virginia for many high schoolers, and graduation season is just a few weeks away.  Every year around this time, there is usually a spike in DUI-related accidents and arrests.  The Virginia DMV even says that, “more teen drivers in Virginia will be involved in crashes between April and August than any other time of the year.”

            

           While officials and parents are constantly warning teens about the consequences of drinking and driving, one county in Virginia decided to show high school students the dangers firsthand.  Local law enforcement officials conducted a simulation of an accident that was caused by drinking and driving.  In this simulation, an innocent person was killed, another was paralyzed, and the drunk driver was arrested for DUI manslaughter and faces serious jail time.  Officials are hoping that by letting students see the horrific effects of drinking and driving, instead of just telling them about it, that this will save at least one life.

            

            The consequences of making that decision to drink and drive in Virginia are very serious.  In addition to significant fines and losing your driver’s license for a period of time, there is a risk of jail time, especially if you cause an accident or have been convicted of a DUI previously.  Further, you will have to live the rest of your life with a DUI showing up on your record.

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 Alexandria or throughout Virginia, or visit us on the web at http://www.portnerandshure.com/Criminal-Defense/DWI-DUI/