December 2001 winner of the month - possession of marijuana
My client was charged with possession of marijuana a class one misdemeanor. The evidence produced by the Commonwealth indicated that the marijuana was located in the trunk area of the car, that the trunk was messy, and that the defendant was the sole occupier of the car at the time of the stop. We argued that without the defendant’s statement admitting that the marijuana was his/ hers the Commonwealth had failed to prove possession by the mere presence of the contraband in the vehicle. Case dismissed.
January 2002 winner of the month - Driving under the influence of alcohol
My client was charged with Driving under the influence of alcohol with a .07 BAC. Under Virginia law .08 and above creates a presumption of intoxication at the time of operation where as .05 to .07 can be used as evidence in total but does not create a presumption either way. On cross examination, the officer admitted that the Defendant was nervous during the testing period which may have led to some of his mishaps on the cognitive end of the field sobriety tests. Furthermore, although the Defendant did not do everything that the officer instructed, the Defendant’s mishaps on the field sobriety tests that tested dexterity could have been attributed to the boots he was wearing and the slight slope on the portion of roadway that the officer had the Defendant perform the tests. Driving under the influence reduced to reckless driving.
February 2002 winner of the month - wrong way street
My client was charged with driving down a one - way street. The officer testified that the street had properly posted signs at either end of the street but that not all intersections in between the two ends had signs on them. The Court dismissed the charge on the basis that the Defendant may have lacked proper notice.
March 2002 winner of the month - hit and run
My client was charged with misdemeanor hit and run for striking a parked vehicle and doing damage less than a $1000. The Commonwealth presented evidence indicating that the defendant struck the driver side mirror of a truck and kept driving. A witness who saw the accident came up along side of the Defendant motioning for him to pull over. The Defendant continued on and noticed the damage to his truck later in the afternoon. That same day the Defendant returned to the scene and contacted the police. The police issued a summons for hit and run since he failed to stay at the scene of the accident and search out the individual who owned the car. We argued that the Commonwealth failed to show the Defendant had knowledge of the accident. Case of hit and run dismissed.
April 2002 winner of the month - domestic Assault and battery
My client was charged with assault and battery of a family member. The victim testified that the Defendant had grabbed her from behind and threw her to the floor and ripped her shirt and she was trying to get away. Cross-examination elicited that the injuries alleged to have been sustained were not consistent with the testimony given on direct examination. Case dismissed.
May 2002 winner of the month - Obstruction of justice
My client was charged with obstruction of justice. The officer testified that he came upon the scene of an accident and saw an individual fleeing from the driver side of a car that was involved in the single car accident. When the officer approached, the Defendant indicated that he was the driver of the vehicle and that there was no individual fleeing the scene. On cross-examination the officer admitted that although he saw the individual fleeing he did not see the accident and did not actually see the driver side door open. Case dismissed on lack of evidence grounds.
June 2002 winner of the month - possession of concealed weapon
My client was charged with possession of a concealed weapon specifically a six-inch butterfly knife with one sharp edge. On argument we relied upon the statute which gives a laundry list of knifes but does not specifically indicate the knife held by the defendant. Case dismissed.
July 2002 winner of the month - illegal inhalation of drugs
My client was charged with the illegal inhalation of drugs - mainly nitrous oxide. The officer testified that he came upon the hotel room occupied by the Defendant and several others in response to a call that the Defendant had overdosed on suspected nitrous oxide. Upon entry the Officer found the Defendant face down on the floor surrounded by empty nitrous oxide canisters. The Defendant was brought to the hospital where he was treated and released. The officer attempted to elicit that the Defendant had inhaled the drugs without independent knowledge or a statement from the Defendant admitting to the same. Our motion to strike the evidence was sustained and the case was dismissed.
August 2002 winner of the month - Possession of cocaine
My client was charged with possession of cocaine a class 6 felony. The Commonwealth presented evidence indicating that the Defendant admitted to smoking crack in a pipe earlier in the day and having used a pipe that was found in another individual’s residence. The pipe tested positive for cocaine. On cross-examination the officer was unable to testify when the crack residue found in the pipe was smoked and additionally, whether it was before or after the crack pipe was used by the Defendant. The case was dismissed on the failure of the commonwealth to prove that the Defendant actually possessed cocaine within their jurisdiction.
September 2002 winner of the month - possession of marijuana
My client was charged with possession of marijuana first offense. The City of Virginia Beach presented evidence indicating that the officer pulled the Defendant on the pretense that he saw the Defendant smoking what he believed was suspected marijuana. On cross examination the officer admitted that their windows were up and other than seeing the Defendant smoke he could not tell whether what they were smoking was a cigarette or a marijuana joint. The charge of possession of marijuana was dismissed since the officer failed to articulate reasonable suspicion that the Defendant was in the midst of smoking pot.
October 2002 winner of the month - under age possession of alcohol
My client was charged with underage possession of alcohol. The officer stated that he approached the Defendant because he saw him stumble several times along a public sidewalk. Upon further investigation the officer indicated that he learned that the Defendant was intoxicated and that he was underage by way of his driver’s license. We argued that the Court lacked jurisdiction because although the evidence was clear that the Defendant was intoxicated and in the City of Virginia beach the court lacked jurisdiction because the Officer could not testify as to where the alcohol was consumed and possessed. Case dismissed.
November 2002 winner of the month - Bomb Threats
My client was charged with making a bomb threat against so as to endanger build. In discussions with the Commonwealth’s witnesses it was pointed out that although they were able to track the call to my client they were not going to be able to say with any certainty whether it was my client on the other line even though the caller had information that perhaps only the Defendant would have known. The Commonwealth attorney agreed to dismiss the charges after confirming that their case lacked the ability to identify the Defendant as the perpetrator.
December 2002 winner of the month - Hit and run and driving on suspended
My client was charged with hit and run and three counts of driving on a suspended license - all charges were dismissed because they couldn’t prove that he was operating the vehicle at the time of the accident since they pulled him over long after the accident occurred and they couldn’t prove notice on any of the suspended license charges.
January 2003 winner of the month - distribution of drugs to minors and contributing to the delinquency of a minor
My client was charged with four counts of distribution of drugs to minors (felony) and two counts of contributing to delinquency of a minor (misdemeanor). The commonwealth could not prove that marijuana recovered from his car was the same substance given to the minors. At the very least all they could show was that it was a cigarette. The Defendant was ultimately convicted of one Count of delinquency of a minor.
February 2003 winner of the month - Robbery
My client was charged with robbery. This case was nolle prossed because the victim right before taking the stand admitted that she could not identify the defendant as the perpetrated and the detective confirmed.
March 2003 winner of the month - Phish Concert Marijuana busts
We represented half the Phish concert busts in Hampton and got all charges reduced to deferred findings and the charges eventually dismissed with no jail time and small fines.
April 2003 winner of the month - Driving under the influence 2nd offense
My client was charged with DUI second offense. The officer testified that the keys were in the ignition but could not testify as to whether it was turned on or in the auxiliary position. The case was dismissed because the Commonwealth was unable to prove the key element of operation.
May 2003 winner of the month - Embezzlement
My client was charged with embezzlement from a former employer on the basis that she, as the book keeper had written checks out on the account to herself that were allegedly not authorized but signed by the owner of the company. The commonwealth agreed to nolle pross the matters after being shown that they failed to meet all of the elements of embezzlement. Case dismissed.
June 2003 winner of the month - extortion by threat charge
My client was charged with extortion by threat charge, a felony in the Commonwealth of Virginia. The complainant was indicating that the Defendant falsely accused him, the owner of a tanning salon, with peeping into her tanning bed. The evidence would have indicated that the Defendant upon leaving the tanning salon called the complainant and said that unless he paid her $2500 she was going to call the police and charge him with peeping tom. The Complainant never paid and the Defendant brought the charge of peeping tom against the Complainant. The parties signed an accord and Satisfaction and the charge against both my client and the complainant were nolle prossed by the Court.
July 2003 winner of the month - possession of cocaine
My client was charged with possession of cocaine. We filed a motion to suppress the evidence seized as a result of an illegal seizure. The Commonwealth presented evidence indicating that on the day in question an officer who was serving a warrant on a known felon stopped outside of the house where he observed the Defendant knock on the door several times and leave after receiving no response. The Officer, believing that the defendant was the individual he was searching for, pulled up to the car the Defendant had entered and asked for his driver's license. The defendant produced the driver’s license at which time the officer testified he noticed that the Defendant was nervous. The officer asked if the Defendant had anything on him at which point the Defendant handed him suspected narcotics.
We argued that once the Officer determined that the individual on the license was not the individual being sought he had an obligation to return his driver's license to him and that without doing so, his keeping of the license was tantamount to an illegal seizure, the fruits of which must be suppressed. Case dismissed.
August 2003 winner of the month - speeding and driving under the influence
My client was charged with Speeding and Driving under the influence of alcohol, a class one misdemeanor in Virginia which carries the possibility of 12 months in jail, 12 months suspension of license, and a $2500 fine. The Commonwealth presented evidence indicating that the Defendant had a Blood alcohol content of .09 which in Virginia creates a rebuttable presumption of impairment at the time the Defendant operates the motor vehicle. On cross examination, the Officer admitted that although the defendant was pulled for speeding there was nothing unusual about his driving of the motor vehicle, that there was no weaving involved, that he signaled at all turns, and that he maintained what seemed to be good general control of the vehicle. Furthermore, the Officer admitted that upon approaching the Defendant’s vehicle that the Defendant was able to provide his license and registration without incident, that he exited the vehicle without trouble, and that his speech although slurred was not incoherent. Further admissions paid tribute to the Defendants ability to perform all standardized field sobriety tests adequately. The charge of Driving under the influence was reduced to reckless driving and a small fine was assessed.
September 2003 winner of the month - Possession of stolen property and breaking and entering
My client was charged with 2 counts of possession of stolen property and breaking and entering. The Commonwealth attorney presented evidence indicating that the D was found in possession of the stolen goods and attempted to pawn the same at two separate locations one of which was outside the jurisdiction of the charging city. The Court dismissed the one count of possession of stolen goods finding that even though the property was stolen in the charging city there was no showing that the d had possession of the same within the charging city. Charge of B and E and possession of stolen property dismissed.
October 2003 winner of the month - Petty Larceny
My client was charged with Petty larceny on federal property for the alleged taking of items from an on base store. The US Government presented evidence, mainly a video indicating that my client took several boxes of cologne from a shelf, placed them amongst other items in her cart, and paid for everything except for the cologne. On cross examination the store detective admitted that she could not state with any reasonable certainty that my client attempted to obscure the items in her basket, admitted that she had every opportunity to obscure the items so, and admitted that she was adamant upon apprehension that she had just forgotten about the items. Defense offered evidence from the Defendant who indicated that it was a simple mistake. The Judge dismissed the charge of petty larceny.
November 2003 winner of the month - Driving under the influence
My client was charged with Driving under the influence on federal property in Federal Court. My client approached the gate of Fort Eustis, a military base, by mistake and attempted to make a u turn. Upon approaching the gate and informing the officer of the same he was ordered by a second officer to a checkpoint on suspicion of driving while impaired. A timely objection was made by the defense indicating that although the Government has a right to search incident to entry that search is limited to those situations where the individual is attempting to gain entry since the law that provides the government the right to search is limited to base security. The Judge upheld the objection and dismissed the charge of driving under the influence.
December 2003 winner of the month - Statutory Rape
My client was charged with several counts of statutory rape and was facing life in prison. The evidence presented by the commonwealth was based solely on the alleged victim’s statements alleging that the events occurred sometime within a two year time period, that the first complaint made was several months after the alleged incident occurred, that the complaint was not filed until a couple years after the alleged incident and that at the time the incident occurred my client was in a supervisory position over the alleged victim (i.e., a baby sitter). We presented both medical evidence and alibi evidence showing that our client’s version of the events, which were in direct contradiction to the alleged victims were more credible. All charges were dismissed.
January 2004 - reckless driving and open container
My client was charged with reckless driving and open container. My client avoided a DUI checkpoint by driving over a median and making an illegal U-turn. The Court found my client not guilty of reckless driving because the operation of the motor vehicle did not in and of itself endanger life, limb or property as required by statute. As to the open container, the container was located on the floor of the passenger seat. The Court dismissed this charge because they could not prove that my client knew of its presence.
February 2004 - Driving under the influence
My client was charged with driving under the influence. The officer testified as to the results of the preliminary. We argued that under 18.2-267 the preliminary breath test could not be admitted into evidence and the Court dismissed the charge of DUI.
March 2004 - Obstruction of Justice
A shooting occurred and the police were dispatched. The police went to the second floor of the hotel and found bullet holes in some of the doors. My client’s roommate opened the door and the police took him outside. The police kept yelling for our client to come outside but he would not show himself. Eventually our client came outside and they arrested him for obstruction of justice. The Court dismissed the charge based upon our argument that the police had not informed our client why they wanted him to come outside and the officer failed to prove that our client knew who they were or what they wanted.
April of 2004 - Driving under the Influence
My client was charged with driving under the influence on a federal base. He blew a .10 and performed extraordinarily well on his field sobriety tests. Furthermore, the arresting officer on cross examination indicated that there was nothing odd about my client’s operation of the vehicle, his ability to obtain his license and registration on request, nor his ability to stand, walk or communicate with the officer. We argued that a .10 BAC creates a rebuttable presumption and that under a totality of the circumstances my client had overcome this presumption. The Court agreed dismissing the charge of driving under the influence.
May 2004 - possession of marijuana with the intent to distribute
My client was charged with possession of marijuana with intent to distribute. The officer testified that he stopped my client’s vehicle in a high crime area and requested that he exit the car for officer safety. Upon exiting the car the officer patted my client down and reached into his pocket discovering several bags of a leafy green matter he suspected to be marijuana. On cross examination the officer admitted that at the time he reached into my client’s pockets he did not believe that my client was carrying a weapon in that particular area.
We argued that under Virginia law officers are allowed to conduct a “pat down” search of the out reaches of the Defendant’s clothes for officer safety but are not allowed to reach inside the pockets unless they believe through a pat down that the area contains a weapon. The Court sustained our motion to suppress the evidence.
June 2004 - assault and battery of a family member
My client was charged with two counts of assault and battery of a family member. During trial in Juvenile Domestic Relations Court and upon cross examination of the commonwealth witnesses we were able to elicit that their stories were inherently incredible and show that they had motive to lie. The Court discarded the commonwealth evidence and both counts were dismissed.
July 2004 - driving on revoked license
My client was charged with Driving on revoked license after being revoked for driving under the influence. The officer testified that she pulled up behind the defendant and ran his tags where in the owner of the vehicle came back suspended. The officer activated her emergency lights and pulled the Defendant over based upon her investigation. The Court held that the officer stop was not reasonable since the officer could not determine to a reasonable degree of certainty that the owner of the vehicle was driving at the time of the offense. Charge dismissed.
August 2004 - charged with petty larceny
The client was charged with petty larceny. A video of store allegedly would have shown the client taking certain items and pocketing them. At trial the Commonwealth Attorney attempted to introduce testimony of what three eyewitnesses saw on videotape. On our objection the Court excluded the testimony on the basis that the best evidence was the actual videotape and that testimony of what video taped portrayed was inadmissible hearsay. Charge of petty larceny dismissed.
September 2004 - carrying a concealed weapon in an airport
Our client was charged with carrying a concealed weapon in an airport. The airport security officers testified that they found a four-inch switchblade in our client's workbag. On cross-examination the officer admitted that he no longer had possession of the physical evidence and only recalled that our client acted surprised upon the officer finding the knife. The Court granted our motion to strike and dismissed the charge on the grounds that the knife did not properly fit in the laundry list of weapons prohibited in the charging statute.
October 2004 - reckless driving
Our client was charged with reckless driving- accident. On cross-examination of the commonwealth’s witness it became apparent that the complainant was partially at fault. We successfully argued that under relevant case law the mere occurrence of an accident in and of itself is insufficient for a finding of guilt. Charge dismissed.
November 2004 - fraudulent use of identification and illegal possession of alcohol
Our client was charged with fraudulent use of identification and illegal possession of alcohol. The officer testified that he was alerted to our client by the bar manager who indicated that our client was underage and had been previously been removed from the premises for underage drinking. The officer also indicated that our client was consuming alcohol at the time he approached and that upon requesting identification he retrieved an id that our client later admitted was not hers. We successfully argued that the city failed to prove our client’s actual age, which is an element of underage possession, and that they failed to prove that our client had used the identification to obtain access into the establishment. Both charges were dismissed .
December 2004 - disorderly conduct
Our client was charged with disorderly conduct for having a verbal altercation with an officer acting as security guard. We successfully argued that the actions of our client did not constitute a threat to the officer and that the language used by our client was constitutionally protected. Case dismissed.
January 2005 - Driving under the influence
Our client was charged with DUI .19 (which currently carries a mandatory minimum of five days in jail) and a hit and run misdemeanor. The officer testified to the Preliminary breath results, which resulted in the early dismissal of the DUI charge. On cross-examination, the injured party could not testify as to the exact time of the accident but thought it was between 8 and 8:30 PM. We successfully argued that since two- hours time may have elapsed between the time of the accident and the time of the stop a reasonable hypothesis of innocence existed. Both Charges dismissed.
February 2005 - Driving under the influence/ refusal
Our client was charged with Driving under the influence/ refusal. The officer testified that he stopped our client on the side of a highway on ramp and that because of the slope of the on ramp he felt that it was unsafe for our client to perform most of the field sobriety tests. On cross-examination the officer admitted that level ground was a mere four hundred feet away and that he could have had our client perform the tests there. We successfully argued that the presumption innocence present on all criminal cases carries over to the tests so that it should be presumed that he had the opportunity to perform the tests he would have performed well. DUI charge dismissed.
March 2005 - Driving under the influence of alcohol
Our client was charged with driving under the influence of alcohol first offense (BAC .09) On cross examination of the officer, the officer admitted that our client did better on his field sobriety tests than he had previously testified to on direct examination. We argued that although the presumption of impairment applied a totality of the circumstances (the client’s operation of the motor vehicle, ability to stand without swaying, and his performance on the field sobriety tests), did not exclude every reasonable hypothesis of innocence. Driving under the influence charge was reduced to reckless driving.
April 2005 - Possession of Marijuana
Our client was charged with possession of marijuana first offense - a class two misdemeanor that carries the possibility of thirty days in jail, twelve months suspension of license and $1000 in fines. The officer testified that he stopped our client for defective equipment. He indicated that upon approaching the car, he smelled an odor of alcohol, placed our client in the back of his vehicle, and searched our client’s vehicle then finding the suspected marijuana. We successfully argued that (1) the officer failed to testify to an infraction of the law - in as much as he was not factually specific as to the actual cause for the stop and (2) that the officer lacked probable cause to arrest our client by placing her in his vehicle because at the time he did so there was not an arrestable offense committed within his presence. Case dismissed.
May 2005 - Reckless Driving 92/55
Our client was charged with reckless driving 92/55 a class one misdemeanor that carries the possibility of twelve months in jail, $2500 in fines, and twelve months suspension of license. At our request, our client obtained a vehicle calibration and attended a driver improvement school. We argued to the Court that a reckless driving offense would create an unreasonable hardship. Reckless driving charge reduced to defective equipment - a non-moving violation.
June 2005 - Assault of a Police Officer
Client was charged with assaulting a police officer - a class six felony carrying a maximum punishment of ten years in prison. The officer testified that our client was watching a fight between two other individuals. That upon approaching the scene and attempting to break up the fight the Defendant elbowed the officer in the throat causing significant pain. On cross-examination of the Commonwealth witnesses and through direct examination of our witnesses we proved that the officer’s version of events was inconsistent and not credible. Case dismissed.
July 2005 - Assault of a Juvenile
Our client, who runs a daycare, was charged with the assault and battery of a minor child left in her care- a class one misdemeanor carrying the possibility of up to one year in jail. Upon cross-examination of the complaining witnesses it became apparent that the child had told more than one story on several occasions to the parents.
Additionally, our witness, a child protective service worker, who had screened the case, came to the conclusion that the injury could not have been the product of an assault as alleged. Case dismissed.
August 2005 - Boating under the influence.
Our client was charged with boating under the influence when his Jet Ski was apprehended based upon beach life guard’s phone call. Based upon the finding at the scene the officer properly arrested the Defendant for boating under the influence. The Defendant submitted to a Breathalyzer and blew a .14 per 210 liters.
The Court file reflected that our office had requested a copy of the Breathalyzer and that the Clerks office indicated that the certificate had not been filed. On Defense motion the Court reviewed the file and learned that a clerical error had been made. Case dismissed on a technicality.
September 2005 Sexual battery
The victim, a passenger in our client’s vehicle, alleged that our client had touched her private region against her will. Our investigator spoke to the victim on several occasions, which turned up several different conflicting stories. The victim was unable to withstand cross-examination and admitted that the areas were not her private areas. Sexual battery was reduced to misdemeanor assault and battery. We appealed the Courts decision. Lesser charge is currently on appeal.
September 2006 Domestic Violence
Our client was charged with domestic violence. The complainant - wife - alleged that our client beat her after she took his cell phone from him. On cross examination the alleged victim admitted that she thought her husband was cheating on her but refused to agree that she was angry at him. In addition, the alleged victim admitted that it was her taking of the cell phone that prompted our client to attempt to forcefully retrieve the item. Having prepared our client to testify, he never minimized his attempts to forcefully secure his property. Case dismissed.
October 2006 Possession of Cocaine
Client was charged with possession of cocaine. The circumstantial evidence showed that our client was operating a motor vehicle with one other front -seated passenger. On direct, the officer testified that he found a smoking device with suspected crack cocaine located in the driver side map pocket. On cross examination the officer admitted that our client made no furtive movements upon his approach to the vehicle, that the item was covered by a cloth, that the item was not hot to the touch, that our client’s car was not registered to her, and that our client did not appear to be under the influence of drugs. Case dismissed!
November 2006 Assault of an Officer
Client was charged with two counts of an assault of an officer (felony), breaking and entering with the intent to commit an assault (felony), resisting arrest, possession of a concealed weapon and assault and battery. On cross examination we were able to establish that the Defendant’s intent was not to harm the officers and that any contact that occurred between the officers and the Defendant was merely incidental to the resisting arrest charge – both counts dismissed. On the breaking and entering charge we were able to successfully argue that the Commonwealth had failed to prove beyond a reasonable doubt that the intent to harm existed at the time that the Defendant entered the home – charge reduced to misdemeanor trespass. On the concealed weapons charge no weapon was entered into evidence. We successfully argued that in the absence of actual evidence there is a presumption that the evidence if it had been presented would have been favorable to the Defendant – ie that the knife described did not fit the statutory requirement – charge dismissed. Our client was facing a total of 23 years in the Virginia State Penitentiary ended up serving three months of active incarceration on weekends.
December 2006 Reckless Driving
Our client was charged with reckless driving – operating his motor vehicle at a speed of 91 miles per hour in a 55 mph zone. On cross examination the officer was able to produce a calibration for the vehicle for which he used to pace but the calibration was not properly authenticated. Court held the calibration inadmissible – case dismissed!
March 2007 Illegal Possession of Alcohol
The client was charged with illegal possession of alcohol and failing to appear for Court – two class one misdemeanors that carry the possibility of twenty four months in jail and $5000 in fines. The officer testified that he witnessed our client drinking what he suspected to alcohol. Upon further investigation he determined that the client was under the proper age. The Court dismissed the charge on a motion to strike based upon the officer’s failure to testify as to the actual age of the client.
The court also dismissed the failure to appear charge based upon our client’s testimony.April 2007 Concealed Weapon
Client was charged with carrying a concealed weapon a class one misdemeanor carrying the possibility of 12 months in jail and a $2500 fine. Based upon conversations with the commonwealth attorney we were able to successfully negotiate a plea deal where the Court took the matter under advisement and dismissed the charges after twelve months based upon the client’s good behavior and completion of 50 hours of community service.
September 2007 Obstruction of Justice
Client was charged with obstruction of justice, discharge of a firearm a carrying a concealed weapon about his person, three class one misdemeanors carrying a potential for thirty six months in jail and $7500 in fines. The evidence in the case was that the defendant having gotten into an argument at a local bar went to his car pulled out his firearm and brandished the firearm firing several shots into the air. We were able to successfully negotiate a plea where in the client plead guilty to one count of carrying a concealed weapon. Based upon argument presented at sentencing the client received twelve months in jail all of which was suspended.
The remaining two charges were dismissed.
October 2007 Possession of Cocaine
Our client was charged with possession of cocaine a class five felony carrying the possibility of ten years in the Virginia State penitentiary and Five thousand dollars in fines. The Commonwealths best evidence was that a crack stem was found in the driver side door pocket in the vehicle the client was operating at the time of the stop. On cross examination the officer admitted that the crack stem was not visible without first manipulating other objects in the way, that the crack stem was cool to the touch and that the client informed the officer that the crack stem was not hers.
There is no presumption in Virginia that the driver is presumed to have possession of items found in his or her vehicle. Moreover, constructive possession was not established without circumstantial proof that the client knew that the item was present. The court dismissed the charges.
November 2007 Hit and Run
Client was charged with misdemeanor hit and run, misdemeanor reckless driving and providing a false police report. Pursuant to Virginia Statute the client was facing a total of 36 months in the city jail and a $7500 fine. We negotiated a plea agreement with the officer where in the client plead guilty to providing a false police report and the remaining charges were dismissed. Based upon argument made at the time of sentencing the client was fined $50 and ordered to pay Court costs.
December 2007 Felony Bad Check
Our client was charged with felony bad check in the amount of $7500. the Statute in Virginia makes this charge a class six felony with the possibility of five years in the Virginia State penitentiary. At the preliminary hearing the alleged victim testified that the Defendant had provided a check on the date of the offense and indicated at the time that the check was presented that the check would be good in a few days. The case law in Virginia supports the proposition that the intent to defraud must exist at the time presentment and that a promise to pay at a later date is not criminal in nature but reserved for civil action.
The General district Court dismissed the action at the preliminary hearing level.
January 2008 Possession of Marijuana
Our client was charged with simple possession of marijuana a class two misdemeanors that carries the possibility of six months in jail and six months suspension of driving privileges. The common-wealth’s best evidence proved that the Defendant had been properly arrested for an unrelated traffic offense. Subsequent to arrest and prior to being processed into jail the client was search and marijuana was found inside the client’s pocket. On cross examination the officer admitted that the marijuana substance was extremely small, that the substance was also located next to lint and that the Defendant denied knowing that the speck of marijuana was on his person.
The Court dismissed the charge of simple possession.
February 2008 Driving Under the Influence
Client was charged with driving under the influence second offense - accident with a Blood alcohol content of .18. The Commonwealth evidence showed that on the date of the offense the Defendant admitted to the officer that he had consumed alcohol. Moreover his performance of the field sobriety tests was poor which gave the officer probable cause to effectuate a proper arrest. The case was dismissed on a motion to strike based upon the officers failure to testify as to the time of the accident. Virginia law requires that a defendant be given an opportunity to submit to a breath or blood test within three hours of the time of operation. With out the time of operation the Commonwealth was unable to meet its burden.
March 2008 Domestic Violence
Client was charged with domestic violence. Upon discussing the case with the alleged victim we determined a number of discrepancies between her statement to our investigator and the statement given to magistrate at the time of filing the action. Based upon our discussions with the Commonwealth attorney the charge was dismissed on their motion.
April 2008 Felony Possession of Stolen Property
Our client was charged with felony possession of stolen property. The Commonwealth’s best evidence was that a motor cycle had been stolen some time in 2007 and that our client had made an admission that he had purchased the motor cycle worth close to $5000 for $2500. The case law in Virginia supports the proposition that only recently stolen property creates the presumption of knowledge. We successfully convinced the Commonwealth attorney to dismiss the charges based upon their inability to prove the client’s knowledge that the property was stolen.
May 2008 Driving Under the Influence
Client was charged with driving under the influence 2nd offense with a blood alcohol content of .23 which carried a mandatory minimum amount of thirty days in jail and an assault and battery of a law enforcement officer (felony) which carries a mandatory minimum of 6 months in jail. The evidence produced at trial was that the arresting officer had requested that the client remove herself from the vehicle on several occasions. After making the request and being denied on several occasions the officer pulled the client out of the vehicle by her arms and our client grabbed the officer’s arms leaving significant deep scratch marks along his arm.
The commonwealth attorney assigned to the case was unwilling to reduce or plea down the charges. On cross examination the officer made admissions as to the possible intent of the driver upon grabbing his arm. As a result the felony charge of assault and battery of a law enforcement officer was dismissed.
On the Driving under the influence charge the commonwealth could not secure a certified copy of the prior offense and failed to properly file a copy of the blood alcohol certificate as required by statute. The charge of dui second with a BAC of .23 was reduced to a standard dui first offense.
