Pitfalls to Avoid when Advertising for your Virginia Business

The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, prohibits a business from advertising through unsolicited text messages.  While the no-call list and other protections regarding telemarketers are more generally understood, technology and cost have made lesser understood mass-text-based options more accessible to businesses.  With this rise in use, plaintiffs’ attorneys have started to crack down on abuses, which can be costly to a company.

For example, a Class Action suit is pending in Southern Florida over the unsolicited use of mass-text advertising by a realty company.  Other similar suits are likely to follow.  The National Association of Realtors has a helpful guide to the TCPA and texting in this video.

Before your Virginia business launches any new advertising campaign, regardless of whether it implicates the TCPA, consider a brief consultation with your business attorney.

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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.

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When Your Business Receives a Subpoena Duces Tecum

A subpoena duces tecum is a formal legal document instructing the recipient to produce certain identified documents, computer files, or other physical items.

Virginia Code § 16.1-89. Subpoena duces tecum; attorney-issued subpoena duces tecum.

A judge or clerk of a district court may issue a subpoena duces tecum pursuant to the terms of Rule 4:9A of the Rules of the Supreme Court of Virginia except that such subpoena may be directed to a party to the case as well as to a person who is not a party.

Typically, a party to criminal or civil litigation serves this type of subpoena on a non-party in order to identify information helpful to the litigant’s case. There are various other types of subpoenas, such as witness subpoenas, that are not discussed here.

Running a business is difficult and time consuming even in the best of times, so receiving a subpoena can understandably cause stress and confusion to a business’s officers and employees. This post discusses a few of the basic issues associated with a subpoena duces tecum. This post is not exhaustive, however, so always contact your attorney immediately upon receiving a subpoena.

Initial Considerations

First, review the subpoena carefully to determine what is requested, who requested it, and the deadline to respond. Regardless of how you plan to respond, immediately issue a litigation hold to relevant employees to ensure that the requested documents or materials are not destroyed. Though it sounds like common sense, do not simply disregard the subpoena or put it at the bottom of your to-do list. Ignoring a subpoena can result in contempt of court and monetary sanctions.

Written Objections

Second, consider how to respond. Just as a business should not ignore a subpoena, nor should it automatically comply without question. Under certain circumstances a business should object to a subpoena. There are both procedural and substantive potential objections. Some procedural bases for objections include improper service, service after the discovery deadline, and unreasonable response time. Possible substantive grounds for objections may include:

Relevancy: Information requested should be relevant to the subject matter of the underlying litigation and reasonably calculated to lead to the discovery of admissible evidence.

Undue burden and expense: Compliance with a subpoena would cause an undue burden or expense to the producing party.

Lack of possession, custody, or control: The responding party does not possess, actually or constructively, the requesting documents, nor are the documents within its custody or control.

Trade secrets and confidential business information: If a subpoena seeks documents that contain sensitive business information the business can object. If the requesting party demonstrates a substantial need, however, then production of such information may ultimately be required under the limits of a protective order.

Confidential personnel information: If an individual’s personal confidential information is contained in a requested document, the business should immediately notify such person of the request. The business may be able to object, or the person whose information is to be produced may have to object. Notably, certain statutory requirements apply when an individual’s medical records are requested

Privileges: In addition to the well-known attorney-client privilege, there are other privileges that may render a subpoena objectionable. For example, health care records made in connection with quality or peer review matters carry a special privilege.

Written objections must be served on the requesting party or attorney within a certain period of time after service. Failure to object within such timeframe may result in waiver of any objections. After serving timely written objections, the requesting party may move the court for an order to compel production. A court will not issue an order to compel unless the moving party has first made or attempted to make a good faith effort to resolve the matter with the other party. After a good faith effort at resolution by the parties, the business also has the option to move the court for a protective order to limit production. It should be noted that when a business makes written objections to a subpoena, it can still comply to the requests for which there are no objections, if there are any.

Motion to Quash or Modify

A business may also decide to make a motion to quash or modify the subpoena based on the same grounds listed above. A motion to quash or modify must be timely and it also requires that the parties first confer or attempt to confer in good faith to resolve their differences. Upon a motion to quash, the court may grant, deny, or modify a subpoena.
Finally, there are many considerations and pitfalls involved in responding to a subpoena duces tecum. Small businesses served with a subpoena should conduct a step-by-step analysis of the subpoena from both a procedural and a substantive perspective. An attorney could be invaluable to this process and should be consulted immediately to help protect your business.

If your business has any questions about serving or receiving a Virginia subpoena duces tecum, contact our office.

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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.

Penalties:
• 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.

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Congratulations to Kirk

We are pleased to announce that the firm’s partner Kirk Sripinyo has accepted a new job at the U.S. Department of Health and Human Services.  The firm has benefited from and grown during Kirk’s tenure at the Law Office of Moore and Sripinyo, PLLC, so while we are excited for this new opportunity for Kirk, we are sad to see him leave the firm.

With this change, the Law Office name is reverting back to its prior name of Law Office of Samuel C. Moore, PLLC.  The attorneys and staff remain committed to upholding the firm’s highest standards of representation and client advocacy across Northern Virginia, Washington, D.C., and military courts around the world.

Contact us today if you have a civil or criminal litigation need. And join us in congratulating Kirk in his new position.

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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, 177 S.E. 2d 628, 630 (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.

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New Associate Farheena Siddiqui

The Law Office is pleased to welcome a new associate, Farheena Siddiqui. Farheena is a graduate of University of California, Los Angeles. She received her J.D. from The George Washington University Law School, where her internships ranged in different substantive areas of law including healthcare and civil and criminal litigation.

While at George Washington, Farheena participated in the Domestic Violence clinic and interned with Legal Aid, D.C. At the firm, Farheena’s practice is divided between criminal and civil litigation in courts across Northern Virginia.

Contact the office today to discuss any criminal and civil litigation needs or to set up an appointment for a consultation.

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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.

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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.

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When Your Business Has an Unhappy Customer

The axiom is that the “customer is always right.” But any business knows that this may be a sound policy to press upon employees, but it simply is not always practically or legally possible. Nor can every Virginia or Washington, D.C, business simply afford to accede to every customer demand.

In assessing how to handle a customer complaint–particularly as the complaint moves beyond cold coffee and into the realm of potential litigation–the business must know (1) what are its rights and obligations and (2) what is the practical consequence of the intended response to the customer.

Not every legally permissible option is a good long-term business decision. Growing businesses know all too well the danger of negative online customer comments and reviews, regardless of whether a complaint or review is accurate or whether the business has since remedied the issue. Conversely, not every practical option is legally permissible or wise. For example, the rush to address the customer’s concern may implicate other criminal and civil liability concerns down the road.

When deciding how to handle a customer complaint, a vendor dispute, the threat of a lawsuit, or other challenging Virginia or Washington, D.C., business concerns, contact experienced Virginia legal counsel to discuss all of your business’s options before rushing to action. A brief consultation with counsel to discuss an appropriate response and strategy may save countless hour and dollars down the road if the matter is not handled most effectively at the outset.

To discuss your business’s legal needs with knowledgable Virginia and Washington, D.C., business counsel, contact our office today.

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