Suspended license
Uncategorized

Driver’s license suspension BEFORE trial?

Everyone has heard of having your driver’s license suspended as a result  of a DUI, but did you know that you can have your license suspended just for being accused of a DUI?  You can but did you know that only applies to certain kinds of DUIs?

The statute that permits the government to seize your license at the time of your arrest primarily refers to DUIs as a result of breath-alcohol and refusal to submit to breath testing.  This means if your DUI is based upon a blood test for pharmaceuticals/other substances or driving conduct alone, you may have a reasonable basis to demand the return of your license.

Here is the statute:

Va. Code § 46.2-391.2. Administrative suspension of license or privilege to operate a motor vehicle.

A. If a breath test is taken pursuant to § 18.2-268.2 or any similar ordinance or § 46.2-341.26:2 and (i) the results show a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath, or (ii) the results, for persons under 21 years of age, show a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath or (iii) the person refuses to submit to the breath or blood test in violation of § 18.2-268.3 or any similar ordinance or § 46.2-341.26:3, and upon issuance of a petition or summons, or upon issuance of a warrant by the magistrate, for a violation of § 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar ordinance, or § 46.2-341.24 or upon the issuance of a warrant or summons by the magistrate or by the arresting officer at a medical facility for a violation of § 18.2-268.3, or any similar ordinance, or § 46.2-341.26:3, the person’s license shall be suspended immediately or in the case of (a) an unlicensed person, (b) a person whose license is otherwise suspended or revoked, or (c) a person whose driver’s license is from a jurisdiction other than the Commonwealth, such person’s privilege to operate a motor vehicle in the Commonwealth shall be suspended immediately. The period of suspension of the person’s license or privilege to drive shall be seven days, unless the petition, summons or warrant issued charges the person with a second or subsequent offense. If the person is charged with a second offense the suspension shall be for 60 days. If not already expired, the period of suspension shall expire on the day and time of trial of the offense charged on the petition, summons or warrant, except that it shall not so expire during the first seven days of the suspension. If the person is charged with a third or subsequent offense, the suspension shall be until the day and time of trial of the offense charged on the petition, summons or warrant.

 

A law-enforcement officer, acting on behalf of the Commonwealth, shall serve a notice of suspension personally on the arrested person. When notice is served, the arresting officer shall promptly take possession of any driver’s license held by the person and issued by the Commonwealth and shall promptly deliver it to the magistrate. Any driver’s license taken into possession under this section shall be forwarded promptly by the magistrate to the clerk of the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made together with any petition, summons or warrant, the results of the breath test, if any, and the report required by subsection B. A copy of the notice of suspension shall be forwarded forthwith to both (1) the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made and (2) the Commissioner. Transmission of this information may be made by electronic means.

 

The clerk shall promptly return the suspended license to the person at the expiration of the suspension. Whenever a suspended license is to be returned under this section or § 46.2-391.4, the person may elect to have the license returned in person at the clerk’s office or by mail to the address on the person’s license or to such other address as he may request.

 

B. Promptly after arrest and service of the notice of suspension, the arresting officer shall forward to the magistrate a sworn report of the arrest that shall include (i) information which adequately identifies the person arrested and (ii) a statement setting forth the arresting officer’s grounds for belief that the person violated § 18.2-51.4, 18.2-266, or 18.2-266.1, or a similar ordinance, or § 46.2-341.24 or refused to submit to a breath or blood test in violation of § 18.2-268.3 or a similar ordinance or § 46.2-341.26:3. The report required by this subsection shall be submitted on forms supplied by the Supreme Court.

 

C. Any person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period of the suspension, request the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made to review that suspension. The court shall review the suspension within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition, the court shall rescind the suspension, or that portion of it that exceeds seven days if there was not probable cause to charge a second offense or 60 days if there was not probable cause to charge a third or subsequent offense, and the clerk of the court shall forthwith, or at the expiration of the reduced suspension time, (i) return the suspended license, if any, to the person unless the license has been otherwise suspended or revoked, (ii) deliver to the person a notice that the suspension under § 46.2-391.2 has been rescinded or reduced, and (iii) forward to the Commissioner a copy of the notice that the suspension under § 46.2-391.2 has been rescinded or reduced. Otherwise, the court shall affirm the suspension. If the person requesting the review fails to appear without just cause, his right to review shall be waived.

 

The court’s findings are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.

 

D. If a person whose license or privilege to operate a motor vehicle is suspended under subsection A is convicted under § 18.2-36.1, 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar ordinance, or § 46.2-341.24 during the suspension imposed by subsection A, and if the court decides to issue the person a restricted permit under subsection E of § 18.2-271.1, such restricted permit shall not be issued to the person before the expiration of the first seven days of the suspension imposed under subsection A.

Car Accident Relief
CLF in News

Local Law Firm Goes Visual

FOR IMMEDIATE RELEASE

Contact: 540.535.2005

WINCHESTER, VA – A local injury lawyer released a new video Sunday marketing the Correll Law Firm. The untitled promotion touts the firms practice areas in personal injury, car accidents, medical malpractice, and criminal defense in Northern Virginia and the Shenandoah Valley.

The promotion visually depicts the various national, regional, and local news outlets that Correll has appeared in including CNN, MSNBC, Fox, and WDVM.

The promotion is available here:

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Statute of Limitations
Words Of Wisdom

Virginia Statute of Limitations

VIRGINIA STATUTE OF LIMITATIONS

The Virginia “statute of limitations” is one very old legal concept.  The doctrine, originating from the English common law, appeared as early as the Virginia Supreme Court case Waddy v. Sturman – a full four decades prior to the Declaration of Independence and the birth of our nation.

Early on, English Courts (and Virginia Courts following the tradition) required that certain time periods for the resolution of legal matters be established due to two major considerations: witnesses move or their memories fade and evidence is destroyed or lost due to the passage of time.  By establishing time limits in which legal controveries must commence, the concern over the destruction of evidence is somewhat ameleoriated.  Virginia is not the only state with a limitations period – almost all states have some form of a limitations period to bring legal action.  Interestingly, both Maine and North Dakota have a shocking six (6) year time limit for bringing personal injury claims – nearly four years longer than the majority of states such as Virginia.

Almost all areas of the law have a Virginia statute of limitations, including personal injury torts, professional malpractice, debt collection, and criminal matters.  In addition to the applicability of the limitations period to multiple areas of law, there are many general rules and exceptions to exceptions.  As this is a general discussion, you need to seek the advice of a personal injury lawyer if your particular matter involves the wrongdoing of another party.

With regard to civil matters, Virginia Code § 8.01-243 controls many of the situations in when the statute of limitations may apply.  If the claim involves the Commonwealth of Virginia itself or municipal corporations (like cities or towns), there are other limitations periods that arise just months after the date of the negligent conduct.  In essence, it’s possible to comply with the two (2) year limitation period, but if you fail the others, you can have a claim dismissed.

PERSONAL INJURY STATUTE OF LIMITATIONS

Generally, an action must commence within two (2) years for cases involving:

Other areas of law have their own limitation periods:

  • Defamation (including libel or slander) (1 Year);
  • Damage to Personal Property (5 Years);
  • Trespass (5 Years); and
  • Oral contracts (3 Years) and written contracts (5 years).

As a general rule of thumb, if a state law claim does not involve the government as a defendant, it’s generally safer to err on the side of caution and act as if there is a one (1) year statute of limitations period.  As a practical matter, not many attorneys will take a case with only a few weeks to file a lawsuit before the deadline and if you assume the statute is one year – and you’re wrong – then what did you lose?

You can learn more about the Virginia Statute of Limitations by clicking here to see a more detailed discussion.  The page includes a discussion about Virginia criminal statute of limitations.

ABOUT US

Correll Law Firm, PLC, serving Northern Virginia and Winchester, Virginia, has a solid familiarity of personal injury and auto injury claims, the factors to maximize success, and the law related to personal injury claims.  The firm also has an emphasis on defending criminal law cases including felonies, such as white collar crime, and misdemeanors.  We are pleased to advocate and fight for our clients in the legal system.  Whether you have documentation when you come to see us or not, we are ready to make your consultation and representation the best it can be.  To have us contact you, you can fill out one of these brief forms (Personal Injury or Criminal Defense) or call us at 540-535-2005.

Words Of Wisdom

7 Tips For Interacting With Police

NOTE: If you or a loved one are seeking a criminal lawyer in Northern Virginia, send us a quick message and we’ll get back to you shortly.

For the purposes of this post, Northern Virginia includes Fairfax, Loudoun, Frederick, Clarke, Loudoun, Prince William, and Fairfax Counties.  For over a decade, former state prosecutor for the Commonwealth of Virginia and criminal defense attorney Beau Correll has litigated thousands of legal matters through disposition and trial in Virginia General District and Circuit Courts.  He has handled criminal appeals to the state Court of Appeals and Supreme Court.  Today, he shares with you tips in dealing with law enforcement in Virginia:

Running a Northern Virginia law firm with a focus on criminal defense has been one of the most satisfying experiences for a criminal trial lawyer.  It has been an honor to represent so many individuals as a criminal defense lawyer.  We’ve handled a variety of cases from violent crime, major embezzlement allegations, and DUI charges.  The vast majority of clients are simply folks that may be productive members of society that made an error in judgment.  Clients come from all backgrounds, from well-heeled entrepeneurs to indigent parents, trying to scrape by from day-to-day.

Despite all of the places I’ve practiced law and all of the varying types of clients, there are constantly reoccuring themes and situations that constantly reappear in almost every consultation.  In these reoccuring fact-patterns one thing is always true: never be timid about invoking your rights – but do so in a polite and respectful manner.

In no particular order, I want to share with you some tips (and myths) to keep in mind when dealing with law enforcement subject to our sitewide disclaimer:

  1. “They Had To Read Me My ‘Rights.'”  This appears to be a reoccuring misconception fueled by both Hollywood and urban myth.  The “rights” at issue are better known as “Miranda Rights.”  You’re probably reminded of what they are if I were to tell you that you have the right to remain silent…”  One thing to keep in mind is that your Miranda Rights only have to be read in one of type of scenario – “custodial interrogation.”  This, in itself, is also broken down into it’s component parts – “custody” and “interrogation.”  “Custody” has been defined as a situation in which a reasonable person wouldn’t feel free to leave.  Think handcuffs.  “Interrogation” generally consists of questions that are reasonably calculated to elicit an incriminating response.  A clear example of a Miranda Rights violation would be a handcuffed suspect being asked about a crime but not read their Miranda Rights beforehand.  An example where it may not apply is if a person isn’t handcuffed and the police are asking about wrongdoing but the suspect is technically free to leave.  If Miranda Rights are violated by rights not being read, there is a liklihood that an incriminating statement may be “thrown out of court.”  Any criminal lawyer will tell you there are tons of exceptions and exceptions to exceptions but the general rule is that there must be custodial interrogation for your Miranda Rights to be implicated.  For example, even when detained for suspicion of DUI and being questioned about how you may appear intoxicated, the United States Supreme Court held in Berkemer v. McCarty, 468 US 420, (1984) that an officer doesn’t even need to give you a Miranda warning because you aren’t “technically” in custody even though you aren’t free to leave!
  2. “They Were Going To Search Me Anyways.”  Criminal lawyers hear this a lot.  The situation typically occurs during a routine traffic stop for anything from speeding to even a DUI.  An officer, perhaps insistently, asks to search your car.  “We’ll just get a K-9” or “Do you have something to hide?” are frequently combined with the requests.  You have rights enshrined by our Founders in the Constitution – use them!  As a general rule, police either need legal justification or permission to search your person, vehicle, or home.  Sometimes the justification can be them viewing evidence in plain sight – or “plain smell.”  Other times they have a search warrant issued by a Virginia magistrate.  You can’t do much about legal justification.  You can, however, exercise your rights and affirmatively tell them that they do not have permission to search and that you do not wish to talk to them.
  3. “I Said Those Things Because I Didn’t Think I Could Leave…”  There are generally three different types of interactions with law enforcement: consensual encounters, investigative detentions, and arrests.  In a consensual encounter, you are free to leave.  You may not terminate the encounter in either investigative detentions or arrests.  Short of being placed in handcuffs, you should attempt to record the encounter (without interfering with the officer) and always seek to politely, yet firmly, question whether you are free to leave.  If you don’t, months after you are formerly charged and are rapidly approaching a trial date, this can be critical.  If you are under arrest and are being questioned related to the accusation always assert, “I want a lawyer.”  The questioning must then cease.  Courts have generally held that the request must be unequivocal.
  4. “But They Had To Tell Me They Were A Cop, Right?”  There are few myths that have permeated Americans’ view of the criminal justice system than this myth.  No, law enforcement nor confidential informants have to tell you that they are undercover under Supreme Court precedent.  However, I think that there are outer limits to that.  The lies/mistruths that that tend to be allowable are those which are factual in nature.  For example, courts may have a problem with allowing lies based on misstatements of the law or deceptions which cause reliance resulting in unlawful conduct.  The latter is called “entrapment.”
  5. “I Thought That I Had To Answer.”  One prosecutor told me that the government’s conviction rate would drop 70% if no one made incriminating statements to law enforcement.  The moral quandry that people accused of a crime find themselves in is, “Do I lie or just tell them the truth?”  You should never lie to law enforcement.  Not only did your mamma teach you better, but it’s also illegal in Virginia under Va. Code § 18.2-461 and law enforcement may frequently know the answer prior to questioning you. The most reasonable conduct is to invoke your rights and remain silent.  Yes, the interaction may be uncomfortable but if you are free to leave the awkwardness won’t last forever and if you’re not free to leave, see our previous discussion about invoking your right to counsel.
  6. “Do You Know How Fast You Were Going Back There?”  In the words of Admiral Akbar, “It’s a trap!”  There are two ways that your speed can be proven in a speeding or reckless driving (by speed) case – either by scientific means like laser, radar, or pacing results or by your confession.  The equipment may have be faulty, but the judge won’t care and you don’t do yourself any favors by giving the government the rope to hang yourself with by guessing your speed.
  7. Breathalyzers.  In Virginia, there are two main types of breathalyzers – the handheld one that they give you on the side of the road to determine if they should arrest you (PBT) and the one at the jail, called the “Intoxilyzer.”   You should always decline the PBT because if they’re going to arrest you they’re going to do it anyways.  Legally, you can choose to decline the Intoxilyzer but if you do, you may likely get a year of no driver’s license, without eligibility to have a restricted license, and other penalties.  With regard to the PBT, almost every single client that comes to our office from our area has their statutory PBT rights violated.  Under Va. Code § 18.2-267, an officer must advise you that you have a right to refuse, that you can observe the test results, and it cannot be used in a prosecution against you.  None of these requirements are generally carried out when someone is arrested for suspicion of DUI.

Northern Virginia criminal lawyer Beau Correll is a former state prosecutor and experienced criminal defense attorney.  For a confidential consultation about your legal matter, please call our staff at (540) 535-2005 or fill out this form.

Words Of Wisdom

Utah Nurse : Fighting Unlawful Arrest

Introduction
Recently, social media has been awash in high-profile uses of force by law enforcement.  The most recent was the arrest of a nurse at a Salt Lake City hospital. 

The incident raises many important questions:

  • Can a person physically resist law enforcement during an unlawful arrest?
  • Can bystanders join in with you?
  • Should a person physically resist an unlawful arrest?

For the purposes of this analysis, I am going to refer to Virginia law and pretend this is fantasy-land and that maybe the arrest happened in the Commonwealth of Virginia, of which I am most familiar.  

Before continuing, please keep in mind that this post, and all others of Correll Law Firm, PLC are subject to our Sitewide Disclaimer.  Secure legal counsel if you have a situation that even remotely resembles this. 

The Video

The video shows nurse Alex Wubbels reciting to Salt Lake City Detective Jeff Payne a hospital policy (and apparently agreed upon by the police department) that only allowed handing over a sample upon one of three conditions:  if there is consent, the suspect was under arrest, or there was an electronic warrant on file to seize the blood.  Payne had none and admitted such on camera.

At this point, Payne informed Wubbels that she was “under arrest.”  The nurse pulls back, protesting the imposition of force.  He then grabs her by the arm and bear hugs her; pushing her out of the Emergency Room.  He pushes her against an outside wall and places her in handcuffs.

Replete in the video is various staff, such as other hospital workers and security, as well as at least one uniformed Salt Lake City police officer.  No one comes to her aid.

Legal Background

It is well-settled that a person is entitled to resist an unlawful arrest.  

Where an officer tries to effectuate an unlawful arrest, the law considers the officer an “initial aggressor.”  The arrestee, thus, has the right to use self-defense to resist so long as the force used is reasonable. See Foote v. Commonwealth, 11 Va. App. 61, 69 (1990); see also Annotation, Modern Status of Rules as to Right to Forcefully Resist Illegal Arrest, 44 A.L.R. 3d 1078 (1972).

In determining what is reasonable, the amount of force by an arrestee must be proportional, “in relation to the harm threatened.” Diffendal v. Commonwealth, 8 Va. App. 417, 421 (1989).

A lawful arrest, when made with unlawful force, may be resisted.  Palmer v. Commonwealth, 143 Va. 592, 602-03 (1925); Foote, 11 Va. App. at 66.  That is because “[a]n arrest utilizing excessive force is a battery because that touching is not justified or excused and therefore is unlawful.” Gnadt v. Commonwealth, 27 Va. App. 148, 151 (1998).

This could conceivably be the case in the event of an officer shooting at someone for say, a reckless driving ticket – if no safety factor is perceived by the officer, such as sudden furtive movements by the driver.

As we can see, a person can both resist an unlawful arrest and a lawful arrest effectuated with unlawful force.  It, therefore, should go without saying that a person is not entitled to resist a lawful arrest. Brown v. Commonwealth, 27 Va. App. 111, 116-17 (1998).  Common sense would suggest this is the law in all, if not most, jurisdictions in the United States.

Authorization to make a warrantless arrest is limited to those situations is frequently provided for in a state’s criminal code. See Code §§ 19.2-77, 19.2-81, 19.2-100 (Virginia). The lawfulness of an attempted arrest would thereby be determined by those laws. See Foote, 11 Va. App. at 65 (citing Code § 19.2-81). 

A prevailing practice of law enforcement, in cases similar to what happened in Salt Lake City, is to charge individuals for obstruction of justice if the officer is carrying out a lawful duty.  See Code § 19.2-81.

Without considering implied consent, which does not appear applicable, the detective’s actions were not authorized under law.

Applied In The Hospital Case

Applied to the hospital case, the nurse could have actually physically resisted – only proportionally – the effort to arrest her.  It appears that would entail attempting to rip her arm from the officer or push him off of her.  

Obviously, that would not have been successful.  

Her conduct would then be privileged to exert such force as would be proportional to his efforts to grab her arm, put her in a bear hug, push her out the door, and to handcuff her.

To the extent the detective elevated his quantum of force, she could do the same to repel the attacker.  Some courts, generally in other contexts, have ruled that a victim could use artificial means – objects, for example – in the event they are physically weaker, to repel an initial aggressor.

Could hospital staff, such as security officers, have legally joined in the fray to free the nurse? Absolutely. But again – only using such force as was necessary to repel the detective’s unlawful arrest.  They could not strike the detective after freeing the nurse from his grasp, for example.

The entire scales of justice would have shifted had any participant aiding the nurse committed any physical action against an officer independent of, and not required to, free the nurse.

One can come to the aid of someone in a physical altercation only if the person they are defending was without fault in provoking the fight.  By that same token, the other officer, in uniform, could conceivably be committing a criminal act by physical contact with those attempting to free the nurse, because the officer would know the detective was the initial aggressor. 

Therefore, officers watching the incident could not have struck Wubbels if she chose to defend herself because Payne was the initial aggressor as his conduct was not privileged or lawful.

The Takeaway

An arrestee has a legal right to resist an unlawful arrest or a lawful arrest done with unlawful force.  Others can join in to free the arrestee if the officer is (i) the initial aggressor, (ii) the arrestee is blame-free, and (iii) the arrest is without probable cause or a warrant.

All this said I would highly urge people to never, ever resist a law enforcement officer’s display of physical force used to effectuate an arrest.  It would only work in this scenario because the detective’s conduct was (i) on camera and in plain view of everyone and (ii) clearly unlawful by all objective standards. 

The real reason that it never pays to resist an arrest is that you never know what legal justification may have existed at the time of arrest.  Had the hospital hypothetical been ever-so-slightly different and the detective actually had an electronic warrant, everyone that came to the aid of a resisting nurse could be criminally charged.  This could have even been the case if he didn’t tell anyone he had a warrant.

Had Payne even had one slight justification to arrest Wubbels, such as public swearing, criminal charges for her resisting and those attempting to free her could have ranged everywhere from obstruction of justice to assault and battery of a law-enforcement officer, which carries a mandatory minimum period of incarceration of six months in jail in Virginia.  He would have had the authority to arrest in those scenarios because they would have been committed in the presence of the officer. See Va. § 19.2-81.

In the judicial sphere, those short, few seconds usually takes months – if not years – to see the light of day.  Witnesses have bias and perception issues, sometimes misremembering.  Prosecutors may convince a judge that even though a legal basis for arrest did not exist, that the officer had a good-faith basis to do so, thereby potentially legitimizing the arrest.  

Conclusion

Yes, a person can resist an unlawful arrest.  

However, good prudence and common sense dictate that an arrestee should just “let it happen” then challenge it – and the underlying charge(s) – later in court.

 ——–

UPDATE (9/8/17): A LEO friend of mine said that you can’t resist an unlawful arrest in New Jersey, yet, if, “officers employs excessive and unnecessary force, the citizen may respond or counter with the use of reasonable force to protect himself, and if in doing so the officer is injured no criminal offense has been committed.” Source.

Words Of Wisdom

Dismissing A Criminal Case

Hey Correll Law Firm followers!

Did you know Virginia is a unique state when it comes to criminal law because it allows certain types of charges to be dismissed by an Accord and Satisfaction?

As long as it’s a misdemeanor, involves an injured party (think: larceny, assault and battery, not DUIs), could typically be a cause of action in a civil suit and a few other conditions do not apply, the charge may (with Court approval) be dismissed by way of this unique agreement between the Defendant and the aggrieved.  It’s actually best described as a civil agreement given recognition in criminal court.

The statute at issue is the codification of the common law doctrine of Retraxit, which is Latin for “he has withdrawn.” However, in the modern sense it means that the complaining witness does not want you prosecuted anymore because you have LEGALLY made things right.

You can view the code section by clicking here.

One word of caution: Correll Law Firm HIGHLY recommends that you engage an attorney to handle these, and determine suitability, because there is a potential you could get into some sort of legal jeopardy if not done properly.

Many people don’t know about this Code section but it’s great for settling matters in a criminal case.  Please SHARE this post on your social media to spread awareness of this law!