The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Monthly Archives: August 2011

Timing It Right: How understanding Va. statutes of limitations can save you time, effort, and money

When it comes to understanding and exercising your legal rights, one of the most important items for Virginians to understand is the statute of limitations.   In the Commonwealth, these statutes are designed to protect parties from the perpetual threat of  lawsuits by preventing claims from being filed in cases where a number of years have passed since the alleged action took place.  The reasoning behind this is simple: if it has been a more than a few years since the alleged breach of contract, accident, destruction of property, etc. , then it is reasonable to assume that the evidence in the case has gone “stale” and that witnesses can no longer give reliable testimony as to what actually occurred.  Additionally, since laws and legal precedents change over time, a statute of limitations (SOL) also functions to prevent old cases from being tried under new laws that were not in effect at the time of the alleged wrong-doing.

However reasonable and logical this  may be, the main thing for the average Virginian to keep in mind is that statues of limitations must be heeded if you want to preserve your right to seek damages in a court of law.  More bluntly (and ironically), if you do not have a working knowledge of Virginia’s SOLs, then you are likely to be S.O.L when you get around to filing a lawsuit.

That being said, here is a quick list of a few of the most common statutes of limitations, as defined in Virginia:

Breach of contract where the contract is a written contract = 5 years*

-Breach of contract where the contract is an oral or implied contract = 3 years*

-Personal injury claims or property damage claims = 2 years

*IMPORTANT NOTE: For cases that involve a breach of contract (written, oral, or implied), the statute of limitations is deemed to begin when 1) the contract was breached or 2) when it is reasonable to assume that you should have noticed that the contract was breached.  While small, this distinction can be very important in cases involving contractor fraud and the like, because if you do not treat every small leak or problem as important and, therefore, fail to address it sufficiently when you first notice it, you have still effectively begun the countdown until your statue of limitations runs.  In such a case, the fact that you did not act to fix the problem sufficiently when you first noticed it could prevent you from filing a lawsuit against the contractor when that “little leak” turns into a flooded basement or much larger problem 3 0r 5 years down the road.

As the above example illustrates, it is critical that you are aware of the amount of time you have to file suit under Virginia law.  Whether it be for breach of contract with a contractor, or for damages resulting from a car accident, you should always consult an attorney as soon you become aware of the problem and realize that a “quick fix” will not get the job done.


Federal Court Defends 4th Amendment Rights of Virginia Motorists

In what should be seen as a major victory for Virginia motorists, the Federal 4th Circuit Court of Appeals upheld the suppression of drugs found in the defendant’s car during what should have been a routine traffic stop.  In this particular case, the defendant was originally pulled over by trooper Christopher Conner for allegedly tailgating another motorist on I-95.  However, rather than simply issuing a ticket for the tailgating offense, the Trooper proceeded to question the man for more than 10 minutes as to whether or not he had any illegal substances in his car, called for backup, and then began questioning the driver once again as to the subject of drugs.  Eventually, after being subjected to a barrage of questions, the defendant consented to a vehicle search.  It was this search that lead to the discovery of the drugs for the possession of which the defendant was charged.

Ultimately, the defendant’s counsel filed a motion to prevent the submission of these drugs into evidence on the grounds that the officer’s harassment lead to an involuntary search.  The 4th Circuit upheld this motion after concluding that the officer’s actions went beyond the parameters of a permissible search and seizure as stated in the Fourth Amendment and further outlined in Terry v. Ohio.

As was decided in Terry v. Ohio states, a search and seizure such as this is only permissible when “the officer’s action was justified at [the inception of the traffic stop]” and “the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.” In other words, the officer must act in accordance with the standard procedure associated with the purpose of the stop.  Without some evidence to justify a “reasonable suspicion of criminal activity,” the officer can not simply abandon the traffic infraction purpose of the stop to investigate another possible crime.  Since it was determined that this was, in fact, what took place during the stop in question, the Court ruled that the officer’s actions qualified as a violation of the driver’s Fourth Amendment rights.

This case is of tremendous relevance to Virginia drivers because the Court’s decision further protects citizens’ Fourth Amendment right to freedom from unreasonable search and seizure.  Additionally, this decision serves to send a firm reminder to police officers in the Commonwealth that “a traffic stop must be reasonable both in its scope and duration.”  To pull an individual over for the purpose of conducting an investigative probe into whether or not they are in violation of some other law is both unjust and illegal.

For more information on this case, please feel free to read the Court’s decision in full here.

Decline in S &P’s Ratings Warrants Review of Estate Planning Practices

As was reported in last week’s edition of The Insurance Journal, everyone’s favorite credit rating company, Standard and Poor’s, has decided to downgrade the credit ratings of 10 of the U.S.’s most prominent life insurance providers.  While many of the companies have enjoyed a AAA rating (the highest possible) for a number of years, last week’s adjustments have left the majority of them at a AA+ level, with a negative outlook assigned as well.

While S&P’s most recent actions have sparked yet another round of controversy and outrage, further investigation reveals that this series of downgrades might not be as detrimental as many believe.  In fact, S&P’s reps have made efforts to clarify that their decision to downgrade 5 of the U.S’s top companies and their affiliates has nothing to do with their opinion of the companies.  Rather, the downgrade is just a reflection of the U.S.’s credit ranking as a whole.  Since most of these companies–which include Knights of Columbus, New York Life, Northwestern Mutual, Teachers Insurance & Annuity Assoc. of America (TIAA), and United Services Automobile Assoc. (USAA)–invest over 70% of their assets in U.S. treasury bonds, it follows that their ranking is highly tied to the ranking of the U.S. as a whole.  As one S&P’s rep put it:

“The rating actions reflect the application of criteria and our view that the link between the ratings on these entities and the sovereign credit ratings on the U.S. could lead to a decline in the insurers’ financial strength. This is because these companies’ businesses and assets are highly concentrated in the U.S.”

Given this understanding, some of the more vicious attacks of the Standard and Poor’s and its practices seem a bit overzealous.  However, as the old adage goes, “victory favors preparation.”  The simple fact that many Virginians use life insurance as an investment vehicle means that this change warrants particular attention.  While it might not be a reason for panic, S&P’s actions are, at the very least, reason enough to revisit and reexamine your current investment and Estate Planning situation.

The Truth Behind “Implied Consent”: Roadside Sobriety Tests Explained

NOTE: The purpose of this posting is to discuss the implications of Virginia statute on drivers confronted with a roadside breath test or a roadside sobriety field test.  Different considerations come in to play if you have already been arrested and are asked to take breath test at the police station.  Hopefully, by acting responsibly and remaining knowledgeable as to your rights, you will never find yourself in such either situation.

As a defense attorney who deals with multiple DUIs each month, one of the most frequent — and, to me, most upsetting — comments I hear from clients is, “I didn’t want to take a breathalyzer, but the cop told me I had to because Virginia has an ‘implied consent’ law.  I didn’t know that I had the right to refuse it without getting arrested.”

Whether it be something they learned in Driver’s Ed or something they just heard from friends, it seems that most Virginia drivers are under the impression that if a cop asks you to take a breath test or to perform a sobriety field test, you have to comply… or else be arrested on the spot.  While this assumption is simply not true, many people are never properly informed of their rights until they are sitting in my office, preparing to fight the DUI they have already been charged with.  So, for the sake of getting it right before it is too late, let’s take a minute to examine Virginia’s “Implied Consent” law and the implications it has on drivers statewide.

First things first: The Commonwealth of Virginia does have what is commonly referred to as an “implied consent law.”  However, it is probably not what many of you think it is.  In Virginia, the “implied consent law” is officially known as Code § 18.2-268.2 and is stated as follows:

“Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-26618.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.”

What is interesting and important about this particular code is that it is strictly limited to those who have already been arrested for driving while intoxicated (see bold section). Put even more simply, you are never nuder any obligation to take a roadside breath test (PBT) or to perform a roadside field test.  The above cited statute is expressly limited to individuals who have already been arrested and taken back to the police station, which is a far cry from the side of the road.  In fact, contrary to what many police officers will indicate after they have pulled you over, Virginia law actually protects your right to refuse a breath test at the scene of a traffic stop. This right is affirmed in Virginia Code § 18.2-267, where it states:

“Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department and is suspected by such officer to be guilty of a violation of § 18.2-266 or § 18.2-266.1, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution under § 18.2-266 or § 18.2-266.1.”

In other words, not only can you refuse a roadside breath test, but this refusal is not, by itself, grounds on which you can be arrested and your refusal can not be used against you should you end up in court.  A good way to think of it is like this: the police need probable cause to place anyone under arrest.  While a roadside breath test is not admissible in court, it does provide sufficient evidence to establish probable cause.  So, when a cop asks you to agree to a roadside breath test, they are really just looking for a way to easily establish probable cause.  The logic behind your right to refuse such a test is similar to logic that justifies pleading the 5th–you can never be forced to incriminate yourself or to implicate yourself in any crime.

So what does this mean to the average Virginian?  At the very least, having this information presented to you should reinforce the importance of becoming knowledgeable as to your rights and learning how they apply to everyday situations.  More importantly, you should know how to exercise those rights.  Hopefully, you will never put yourself in a situation where you will have to put this knowledge to use, but at the very least you can help put an end to the wide-spread rumors surrounding Virginia’s Implied Consent law.