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Fourth Amendment: The Community Caretaker Exception

The Fourth Amendment to the U.S. Constitution prohibits law enforcement from conducting unreasonable searches and seizures. Warrantless searches are per seunreasonable under the Fourth Amendment, subject only to a few exceptions.  Mincey v. Arizona, 437 U.S. 385, 390 (1978). Exceptions to the warrant requirement include, among others, the plain view doctrine, searches incident to arrest, exigent circumstances, and consent.

Another exception, discussed here, is the Community Caretaker Exception. Articulated by the United States Supreme Court in Cady v. Dombrowski, the community caretaker function is an exception to the warrant requirement that covers warrantless seizure of evidence while officers are performing “community caretaker functions.” Commonwealth v. Waters, 20 Va. App. 285 (1995). This includes care-taking activities performed by officers that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Barret v. Commonwealth, 18 Va. App. 773, 776 (1994). It is a common-sense exception that allows local enforcement to render aid.  Yet to balance a risk of abuse, the courts tightly proscribe its use when it crosses over into crime detection.

Law enforcement is permitted, for example, to provide aid to “citizens who are ill or in distress.”   The community caretaker doctrine cannot, however, be used as a “pretext” for investigating criminal activity.  The court in Barrett required that the officer have a “reasonable and articulable suspicion, based upon observed facts or a credible report, that a citizen is in distress or need of assistance” before effectuating a “brief and limited seizure for the purpose of investigating the suspicion and rendering aid.”  The Waters court looked to whether “(1) the officer’s initial contact or investigation is reasonable; (2) the intrusion is limited; and (3) the officer is not investigating criminal conduct under the pretext of exercising his community caretaker function.”

The Virginia courts have not fully examined the contours of the doctrine, so the application is often left to judgment of individual police officers and the trial judge. For this reason, it is a ripe area to explore in any criminal case where the doctrine is the basis of the search and seizure that led to inculpatory evidence. Contact the office today if you would like a review of the Fourth Amendment to your Virginia or Washington, D.C., criminal case.


Virginia Hit and Run Charge: Va. Code §§ 46.2-894, 46.2-895, 46.2-896, 46.2-897

What is a hit and run charge in Virginia?

Hit and Run involving an attended vehicle:

According to Virginia Code § 46.2-894, the driver of any vehicle involved in an accident where someone is killed or injured, or where an attended vehicle or other attended property is damaged must stop near the scene of the accident, without blocking traffic, and report their name, address, driver’s license number, and vehicle registration number to either the police, the person struck and injured if the person is capable of understanding the information, or to another driver or passenger the vehicle collided with.

Hit and Run involving an unattended vehicle:

According to Virginia Code § 46.2-896, the driver of any vehicle involved in an accident where an unattended vehicle or property is damaged must make a reasonable effort to find the owner of the vehicle or property and report the same information required in § 46.2-894 if such driver is found. If the owner cannot be found, the driver must leave a note or other information including driver identification and contact information and must report the accident in writing within 24 hours to the police.

Is there a duty for the passenger to report the hit and run?

Duty of Passengers to Report:

According to Virginia Code § 46.2-895 (hit and run involving attended property, injury or death) and § 46.2-897 (hit and run involved unoccupied property), a passenger who is 16 or older and knows the driver failed to report an accident must report the accident within 24 hours, otherwise the passenger can be charged with hit and run.

What are the penalties for a hit and run charge in Virginia?

1) Penalties for Drivers:

When is it a felony?

Failure of a driver to report an accident involving an attended vehicle is a Class 5 Felony if the accident results in injury or death to any person, or if the accident results in more than $1,000 in damage. A Class 5 Felony holds a punishment of jail up to 10 years and a fine up to $2,500.

When is it a misdemeanor?

If the resulting damage is $1000 or less and no injury or death occurs, failure of a driver to report an accident involving an attended vehicle is a Class 1 Misdemeanor, which holds a punishment of jail up to 1 year and a fine up to $2,500. If the damage is less than $1,000, but more than $500, the driver’s license can be suspended for up to 6 months.

Failure of a driver to report an accident involving an unattended vehicle resulting in damage of $250 or more is a Class 1 Misdemeanor, which holds a punishment of jail up to 12 months and a fine up to $2,500. If the damage is less than $250, failure to report the accident is a Class 4 Misdemeanor, which holds a fine up to $250.

If the damage resulting from an accident involving an unattended vehicle is greater than $500, the driver’s license can be suspended for up to 6 months, in addition to being charged with a Class 1 Misdemeanor.

2) Penalties for Passengers:

When is it a felony?

Failure to report an accident resulting in injury or death is a Class 6 Felony, which holds a punishment of jail up to 5 years, a fine up to $2,500, and driver’s license suspension up to 6 months.

When is it a misdemeanor?

Failure to report an accident involving an attended vehicle resulting in damage of any value is a Class 1 Misdemeanor, which holds a punishment of jail up to 12 months and a fine up to $2,500. If the damage is greater than $500, the passenger’s driver’s license can be suspended for up to 6 months.

Failure to report an accident involving an unattended vehicle resulting in damage of $250 or more is a Class 1 misdemeanor, which holds up to a punishment of jail up to 12 months and a fine up to $2,500. If the damage is greater than $500, the passenger’s driver’s license can be suspended for up to 6 months. If the damage is less than $250, failure to report the accident is a Class 4 Misdemeanor, which holds a fine up to $250.


Virginia Driver’s License Offenses

Driving Without a License in Virginia, Va. Code § 46.2-300

According to Virginia Code § 46.2-300, it is against the law for any person in Virginia to drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver’s license, passed the examination, and obtained a valid driver’s license.

• Driving without a license in Virginia is a class 2 misdemeanor. A class 2 misdemeanor holds a punishment of up to $1,000 in fines, up to 6 months of loss of license, and up to 6 months in jail.
• A second or subsequent violation of this section is a class 1 misdemeanor. A class 1 misdemeanor holds a punishment of up to $2,500 in fines, up to 12 months of loss of license, and up to twelve months in jail.

Driving on a Suspended License, Va. Code § 46.2-301(b)

According to Virginia Code § 46.2-304 and § 46.2-357, it is against the law for any person to drive whose driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked.

Penalties for driving on a suspended license include:
• It is a class 1 misdemeanor, which holds a punishment of jail up to twelve months and a fine of up to $2,500.
• A conviction under this statute can also result in license suspension for the period for which it was originally suspended.
• If, however, this is your third conviction over a period of 10 years then there is a mandatory minimum jail time of 10 days.

One of the biggest defenses to driving on a suspended license is lack of knowledge that it was suspended. The Commonwealth has to prove that you knowingly were driving on a suspended license. They have to prove that you had notice of your license suspension.

An attorney will explore this defense along with other possibilities and may be able to negotiate a lesser charge or even get your charge dismissed. If you have been charged with driving without or on a suspended license, consult with an attorney to discuss your options.


Reckless Driving in Virginia: Va Code § 46.2-862

What is reckless driving in Virginia?

Reckless driving under Virginia statute is someone who drives his/her 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.” VA Code § 46.2-862. To drive recklessly in Virginia is to have a “disregard for the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb, or property.” Powers v. Commonwealth, 211 Va. 386, 388 (1970).

  • Reckless driving is automatically kicked in when you are either going 20 miles per hour or more over the speed limit (ex: going 75 in a 55) or going above 80 miles per hour (regardless of the applicable maximum speed limit).

What are the maximum penalties for reckless driving?

Reckless driving in Virginia is classified as a Class 1 Misdemeanor. A class 1 misdemeanor holds the following maximum punishments:

  • Fines: Class 1 misdemeanors carry a fine of up to $2,500. However, the actual amount you will end up paying will vary depending on your specific situation including but not limited to: your record, your speed, the judge hearing your case, and the local court policy.
  • Jail Time: Active jail time is an allowable penalty for a Class 1 Misdemeanor and it can be anywhere from 0-12 months. Jail time, much like the fines, will vary depending on your speed, your record, and the local rules. The higher your speed, the more likely jail time becomes.
  • Suspended License: Many people who receive reckless driving tickets also face a great risk of having their license suspended.
  • DMV points: A reckless driving charge will give you 6 driving points for a Virginia license.
  • Criminal conviction: Virginia does not allow for expungements on criminal conviction. In simple words, if convicted of the misdemeanor, you will not be able to remove it from your record ever. This can have affects in many areas of your life including immigration status, security clearance, and background checks for employment.

Should I pay my ticket/plead guilty?

Paying your ticket admits guilt and you will be convicted of a Class 1 Misdemeanor. You should consult an attorney to see the range of mitigating factors that can help you get a reduced punishment or charge reduction.

Should you get an attorney?

Yes, as mentioned, paying and pleading guilty for reckless driving admits guilt to a Class 1 Misdemeanor. Speaking to an attorney allows you to explore your specific circumstances surrounding your charge including but not limited to possible defenses, weaknesses in your case, reduced punishments, and even a reduced charge given your criminal and driving history.

Our office handles reckless driving cases across Northern Virginia state courts (Alexandria, Fairfax, Arlington, Prince William) and the Eastern District of Virginia federal district court. Contact the office today for a consultation regarding your reckless driving charge.


Inauguration Day Protest Trial Acquittals

A Washington, D.C., jury acquitted the first six protestors who were tried in D.C. Superior Court related to the February 2017 Inauguration Day protests. Each of the defendants faced two criminal misdemeanor counts of engaging in rioting and conspiracy to riot, in addition to five criminal felony destruction of property counts.

This was a closely-watched case due to the important criminal and constitutional-law implications related to the charges. And with nearly 200 defendants facing similar charges in trials scheduled throughout 2018, this case was the trial balloon for both the prosecution and defense theories related to the Inauguration Day Protects in D.C.

You can read more about these acquittals here.


Inauguration Protest Cases Begin

The Trump inauguration protest cases have been a year in the making but are finally reaching the trial phase in the D.C. Superior Court. Over 180 defendants face felony and misdemeanor criminal charges for their respective role in inauguration day protests and riots, which led to property damage and mass arrests.

The current wave of defendants are in the midst of the first in many trials that are scheduled to occur over the next nine months. The trials present an interesting look at the intersection between criminal law, the first amendment, and conspiracy liability.

For an interesting look at the current trial, read more here.


Montana Supreme Court Cites “The Wire”, Notorious B.I.G., and N.W.A.

Justice James Jeremiah Shea of the Supreme Court of Montana briefly overtook U.S. Supreme Court Justice Elena Kagan in the race to make the coolest references in a published judicial opinion yesterday. (Justice Kagan’s spider-man reference can be found in the Kimble v. Marvel opinion here.) The case was State v. Glass and the issue was whether the defendant’s federal conviction for conspiracy to distribute methamphetamine barred “a subsequent state prosecution for possession of dangerous drugs on double jeopardy grounds.”

In the case, Mr. Glass was charged by the state of Montana in June of 2014 for, among other things, criminal distribution of methamphetamine and criminal possession of methamphetamine. He pleaded not guilty to all of the state charges. A few months later, Mr. Glass found himself in Federal court facing charges of conspiracy to distribute methamphetamine and one count of felon in possession of a firearm. In federal court he pleaded guilty to the conspiracy to distribute charge.

Later, when the state charges went to trial, Mr. Glass moved to dismiss the state’s charges arguing that the prosecution was barred by Montana’s double-jeopardy statute. The State responded that the basis for the state possession charge did not involve the same criminal objectives or conduct as the Federal charges. It seems that Mr. Glass had received sixteen ounces of methamphetamine; of that, he distributed fourteen ounces and used two himself. The Federal charge applied to the fourteen ounces. The state possession charge applied to the two ounces he used. (That was even though he had smoked all two ounces–there was residue of meth on a pipe that police found in Mr. Glass’s vehicle. The residue alone was enough to support a possession charge under Montana law.)

Justice Shea, writing for a unanimous court, agreed with the state of Montana. In his conclusion, he echoed sentiments from “The Wire”, Notorious B.I.G., and N.W.A:

‘Don’t get high on your own supply’ is a long-established rule in the drug trade specifically because such conduct is inconsistent with the criminal objective of distributing drugs for profit. To that rule we now add the legal caveat: ‘Don’t get high on your own supply, ’cause double jeopardy don’t apply.’

The entire opinion can be found here.


Drunk in Public, Fairfax Virginia

Public cursing (i.e., swearing in public) and public intoxication (i.e., drunk in public) are both prohibited by Virginia law. Police officers rarely charge citizens with swearing in public, but charges of public intoxication are fairly routine.

The Statute: § 18.2-388 of the Virginia Code

If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. In any area in which there is located a court-approved detoxification center a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.

As a Class 4 Misdemeanor, it is punishable only by a fine of not more than $250.

In plain English, how can one be found guilty of public intoxication?

Actually, it’s very easy to be charged with public intoxication. Generally speaking, if you show physical signs of intoxication such as stumbling, difficulty speaking, or other outward behavioral indications of intoxications then you are “drunk” for the purposes of the statute. You are in public if you are in “open view” of homes or a public street.

The discretion provided to police is pretty broad here. We’ve even seen cases where the police have pulled over cars, noticed that the passenger was drunk, asked the passenger to step out of the car, and then written a ticket to the passenger for being drunk “in public.”

What can be done for someone that has been charged with being drunk in public?

There are a number of different strategies to deal with a drunk in public charge. The first thing to do is examine the evidence.  A lawyer will ask the officer what they saw that made them think the defendant was drunk. This is often fairly straightforward. Another strategy might revolve around negotiating with the prosecutor to get the charge reduced to some non-criminal infraction. If you’re facing a public intoxication charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.


Felony Larceny of Girl Scout Cookies

The Lexington Herald-Leader is reporting that a Kentucky woman was recently indicted for felony larceny of $15,000.00 worth of Girl Scout cookies. It appears that the woman was the troop leader for the Wilderness Road Chapter of the Girl Scouts. She went down to the cookie pickup point and picked up the chapter’s cookies on February 1st. The woman did not pay for the cookies or deliver them to the girl scouts.Picture of Cookies

It’s unclear what happened to the cookies, but the grand jury indicted her for felony unlawful taking. In Kentucky, like many other states, the potential punishments for thefts varies according to the amount taken. In this case, the charge is a Kentucky Class C Felony because the value of the stolen cookies is between $10,000.00 and $1,000,000.00.

Virginia Larceny

In Virginia, unfortunately, the potential punishment for larceny hinges on just one number: $200.00. A Virginia larceny is a felony if the item or items stolen are valued at $200.00 or more. (The felony statute is here.) It is a misdemeanor if the value is less than $200.00. (The misdemeanor statute is here.) As a felony, larceny is a crime punishable by, among other things, up to twenty years of imprisonment. Misdemeanor larceny is punishable by, among other things, up to twelve months in jail.

This $200.00 threshold means that defendants who steal even small items face big consequences. For example, Virginia shoplifters who steal a couple of shirts might find themselves facing twenty years in prison. A Girl Scout cookie thief in Virginia would face felony charges for stealing only forty boxes of cookies. (Based on a $5.00 per box value.)

Because the felony threshold is so low, it is important to verify the value of the items that were allegedly stolen. Likewise, it is essential that a licensed attorney examine the Commonwealth’s evidence and confirm that they can prove every element of larceny. Additional information on how an attorney can help a defendant charged with larceny can be found here.

What happened to the cookies?

Really though, the most interesting aspect of this case to me is just what happened to the cookies. By my estimate, the woman stole about 3000 boxes of girl scout cookies. It seems unlikely to me that the she moved the cookies on some sort of cookie black market or on the dark web for bitcoin. I suppose it’s possible she ate them all herself but that would be about 30 boxes of cookies a day. At my best, I think I could only eat 3 boxes a day.

I’ll be following the story and provide more as it develops.


Virginia DWI – How will the state prove its case?

A Virginia DWI or Driving while intoxicated (DWI)–more commonly known as drunk driving–is a serious criminal offense. Although some states make a distinction between driving under the influence (DUI) and driving while intoxicated, Virginia is not one of them.

The Virginia DWI Statute

In Virginia, the crime is driving while intoxicated. The law can be found at § 18.2-266 of the Virginia Code. It lays out five separate ways that the prosecutor can prove someone is guilty of a Virginia DWI. In plain English, it is illegal in Virginia to “drive or operate” a vehicle:

Image of Beer, a contributor to Virginia DWI(1) while having a blood alcohol concentration of 0.08;

(2) while under the influence of alcohol;

(3) while under the influence of any drug;

(4) while under the influence of drugs and alcohol; or

(5) while having certain levels of specific drugs in your bloodstream.

Although there are five ways that one can be found guilty, there is only one law. And a defendant who is charged with DWI can be found guilty under any one of the ways listed above.

How the prosecutor can use a “rebuttable presumption” to convict.

The most common way for the prosecution to prove a Virginia DWI is to trigger what is called a rebuttable presumption. Notice that two of the ways that a person can be found guilty listed above (number 1 and number 5) refer to the amount of alcohol or drugs found in the defendant’s bloodstream.

If the prosecution has scientific tests such as a breathalyzer or blood measurement they can submit the results during the trial as evidence. If the tests were properly done they will be admitted. And they will create what is called a “rebuttable presumption” if they show that the alcohol or drug levels in the defendant’s blood were high enough. This presumption will allow the judge or jury to presume that the defendant was “under the influence” of alcohol or drugs while driving due to the level of alcohol or drugs in their blood. The law then allows the defendant to submit evidence to disprove that they were under the influence, but that can be tough to do as a practical matter.

The majority of DWI cases are alcohol cases. And the easiest way for the prosecutor to prove these cases is to use the results from a breathalyzer or blood test. Likewise, the easiest way for a prosecutor to prove that the defendant was under the influence of, for example, cocaine is to submit blood test showing the level of cocaine in the person’s blood stream.

Other ways the prosecutor can prove a Virginia DWI.

But even If there is no blood test, that does not mean that the defendant will “walk.” To the contrary, the law allows the prosecutor to put forth circumstantial evidence that a driver was “under the influence” to prove a Virginia DWI. This would include things like: the smell of alcohol on the driver’s breath, blood-shot eyes, the inability to walk a straight line, slurred speech, and the inability to stand without wobbling. One of the biggest things that might be used against a defendant is their own words. Often, when a the police officer will simply ask the defendant if they have been drinking. Nine times out of ten, the defendant will answer yes.

What can be defenses can be made in a Virginia DWI case?

Virginia DWI cases are technically very complex and there are many possible defenses. Whether or not they are available will depend on the facts and circumstances of the case. For example, in blood alcohol cases with a breathalyzer, there may be a problem with the calibration of the instrument. Likewise, there may be problems with the initial traffic stop. If you’ve been charged with a Virginia DWI, the consequences can be significant. You should consider contacting an attorney immediately to discuss your case.