Suspended license
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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.

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

Presenting The Best Case

No one (sane) wants to be in a car accident.  From a mere inconvenience, to a life-shattering years of treatment and recovery, the negligence of another driver can leave a lasting blemish on an innocent person.  

We at Correll Law Firm, PLC want to make sure that you know how to “jump start” your personal injury case to get the financial compensation that you may be entitled to through either settlement or trial.

Car accidents can be very traumatic experiences. The injuries you may sustain in the accident for the rest of your life.

In addition to the physical harm, you may be at-risk for untold financial harm as well.  One heavily-cited Harvard Medical Study found that 62 percent of bankruptcies are due to medical bills.  In the majority of those cases the individuals even had health insurance!

That’s why knowing the ins and outs of a personal injury client’s insurance is crucial as there may be coverages that a person may not be aware of.

There are many ways to make sure that you are covered in the event someone hits you in a car accident in Northern Virginia.  However, in order to maximize recovery, it’s crucial that you “document, document, document” the circumstances of your injury.

We’ll give you some tips on thoroughly documenting your injuries and making sure you support an award for adequate compensation from a car insurance company. 

Many times we ask client’s to help “jump-start” our representation by providing several key items of evidence.  That said, it is the practice of our firm to seek most of the below items for you.

  • A Picture Is Worth A Thousand Words.  You won’t believe how important this is to both our understanding and that of the insurance company.   We’ll want pictures of your car’s damage, both from afar and close-up, and road conditions.  As to your damage – your personal injury – we’ll need both before and after photos that are a true and accurate depiction of the harm that was caused by the other driver.  If you are now limited in activities that you could have done before, we want to see that as well.
  • Day To Day Limitations.  We frequently ask clients to document their daily trials and tribulations, which are frequently forgotten months after the accident.  Being accurate is critical. We ask because forgetting bad things that happen is not only part of the coping process; it’s human nature.  
  • Accident Location.  We frequently use mapping tools to visually-depict what happened on the day of the collision.
  • Lost Wages.  Aside from medical expenses, this is one of the most critical items to keep track of following a car accident.  We have had cases be great or not so great based on the ability to document lost wages.
  • Medical Records.  We’ll need releases so we can get into the science and mechanism of your injury.  It’s not enough to say you were injured.  We need to make the case of how it happened even if it may seem obvious to you.  You have to assume the insurance company of the other driver will try to poke holes in your case if medical documentation is not as complete as practical.
  • Medical Billing.  If you are not able to obtain these records when you come to us for a consultation, don’t worry about it.  We’ll take care of it for you.  In addition to treatment records, we’ll want to document your pharmacy records, travel expenses for medical appointments, physical therapy equipment, and insurance treatment deductibles or co-payments.

Call us at 540.535.2005 to schedule a free case evaluation

Correll Law Firm, PLC, serving Northern Virginia, has a solid familiarity of both the auto claims process, the factors to maximize success, and the law related to personal injury claims.  It is important to us that our clients be happy with our representation.  Whether you have the documentation when you come to see us, or we obtain it to advance your case (which is most scenarios), we look forward to meeting you.

Words Of Wisdom

8 Shady Insurance Tactics

Many folks like you, when thinking of the car accident settlement process, feel that insurance company employees are simply going to fairly measure your injuries, then pay you what is “owed.”  

However, it’s not that simple.  Insurance companies make a profit by maximizing the amount of money people pay in premiums and reducing the amount paid out in claims to injured people like you.  It’s their business model and people, like you, can be taken advantage of if they’re unaware.

DID YOU KNOW: It has even been disclosed that the adjusters can get paid BONUSES in reducing payouts!

We are frequently seeing cases in which people are taken advantage of.  That said, we want to share with you 8 Shady Tactics they use to reduce paying you what you are owed.

1: They’re looking at your life!

Particularly in cases where we have a client that is severely injured, insurance claims representatives will delve into social media accounts.  They’ll even have you followed and videoed in public.  They may take a few moments of walking to your door without a cane or other assistive device (if a medical professional recommends one) and try to claim you were fine the entire time!

That’s why when we litigate cases we frequently demand any and all surveillance of clients.  During the civil discovery process they usually have to “give up the goods” on what they have on clients. Usually? It’s nothing. 

2. They’ll put up roadblocks

They don’t want you to separate the forest from the trees.

Insurance companies relish in delaying your claim.  They’ll make you get overly-involved in paperwork.  They’ll place all kinds of hoops for you to jump through.  They’ll confuse you and mix in property and personal injury policy limits.  They want to “run that clock” because guess what?  They know that if you play the game long enough you may miss the statute of limitations and you’ll lose your claim forever.

One frequently tactic they use is to only evaluate your claim based on your present injuries.  If you sign that settlement form, you may be “donezo” if you ever develop further pain and discomfort from the original injury.  That’s why it’s important to engage an attorney early.

3. Spying on your Facebook

Always be very cautious what you say on social media because they will misconstrue that, if possible, just like they will on recorded phone calls.

TIP FROM US: Hire an attorney before any discussions with the other person’s insurance company.

4. Inserting tricky clauses into routine documents

We come across this regularly.  If you don’t have an attorney representing you – and even if you do – they will frequently try to get ALL of your medical records, even if it’s not related to the accident.  In those release documents, if you examine the fine-print, you’re agreeing for them to look even YEARS back!  For unrelated things!

They do this because they may want to pin your ailment on a pre-existing condition.  Sometimes they’ll go to great lengths to draw that connection, even if it’s not entirely supported by medical science.

5: Asking Incomplete Questions / Trying to Frame You In The Wrong Light

These insurance adjusters want to blame you whenever they can for the accident.  We urge clients to contact us immediately, rather than playing “their game.”

One of the insurance adjuster “tools of the trade” is to ask incomplete questions to people that don’t have attorneys on recorded phone calls.

We had one case where a bush partially obstructed a client’s view. The client, out of an abundance of caution, pulled into the roadway for a full 30 seconds so any other cars could see him before he pulled out.  After the accident, the other driver’s insurance company denied the claim (initially) by asking on a prerecorded call if the client was to blame for pulling out into a roadway.  The client didn’t see the trickery and said, “Yes!”  However, only when the full facts came out was it clear THEIR DRIVER was at fault.  If a car is in the road for a full 30 seconds, the law recognizes it was the fault of the other driver for being negligent.

That’s but one example out of many.  In summation, don’t play the games of the insurance companies!

6: They blame Colossus.

Most insurance companies use a complex computer program called “Colossus” to evaluate a claim, using various metrics.  Not only are the metrics suspect and not properly assess certain accident-related conditions, but we know many of the limitations of this program.  

The insurance adjuster will usually just blame the computer program for the low settlement number.  Don’t be taken advantage of in this process.

7: Colossus uses a Plaintiff attorney’s “batting average.”

This program, depending on the version, may look at your attorney’s “batting average.”  By that, it looks to whether your attorney is willing to sue if the number is too low.  We take pride in fighting for our clients who wish to pursue this route and are unafraid of taking a case to trial.  We want the maximum amount of recovery for our clients so they can be made whole again.

8: “Do you really need a lawyer?” -Their Insurance Company

Keep in mind what we said before: they want to avoid or reduce payouts.  Lawyers, that know what they are doing, hold the insurance companies accountable.  You need someone that knows the rules of the road to maximize compensation.

Correll Law Firm, PLC (www.correllfirm.com) has experience confronting the insurance companies and fighting for financial recovery of our clients.  If you have been injured in a car accident or the negligence of someone in other ways, call us at (540) 535-2005 for a free case evaluation.

The insurance companies know how to reduce your claim value.  Do you know how to obtain the maximum amount you’re entitled to?