The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Monthly Archives: January 2012

VA Senator Introduces Bill to Abolish Court of Appeals

According to a report recently published by Virginia Lawyers Weekly,  Virginia Senator Creigh Deeds (D-Bath Co.) has introduced a bill that calls for the abolition of the Virginia Court of Appeals.

The bill, Senate Bill 630, would do away with the Commonwealth’s intermediate appeals court starting October 1, 2012, thereby restoring the Virginia Supreme Court’s authority to hear all criminal, traffic, domestic and administrative appeals.  Deeds’ proposal is in direct opposition to House Joint Resolution 111, a piece of legislation introduced by Del. Sal Iaquinto (R-Virginia Beach) calling for an expansion of the Court of Appeals’ authority.

Though some see this piece of legislation as an attack on the court, Deeds has been adamant that his actions were not prompted by any ill-will toward the Court, but rather by a desire to promote fiscal responsibility.  According to Deeds, the abolition of the Court of Appeals would save the Commonwealth 8 million dollars annually, a significant sum for a state in the midst of wide-spread budget cuts.

The bill has been referred to the Senate Courts committee.

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Virginia Judge Sets New Precedent That Favors Expungement

As was reported in this week’s edition of the Virginia Lawyer’s Weekly, Fairfax County Circuit Court Judge Lorranie Nordlund found that a defendant who pleaded guilty to a reduced traffic charge could have the more serious criminal charge expunged.  This ruling sets a new precedent with respect to expungement by adopting a broader interpretation of  Virginia Code § 19.2-392.2, which governs such actions, than courts have been willing to do in the past.

According to the statue, an individual can have their criminal and/or police records expunged if they are acquitted of a crime, if a nolle prosequi it taken, or if the charge is “otherwise dismissed.”   Applying this statue to a case where the defendant was charged with reckless driving (a criminal misdemeanor) but plead guilty to an amended charge of  improper driving (a traffic offense), Judge Nordlund found that the reckless driving charge had been “otherwise dismissed” and was, therefore, able to be expunged.

While it may seem insignificant to some, Judge Nordlund’s decision could prove influential in that it opens the door for untold numbers of Virginians who have previously not sought expungement to now do so.  With this case, Judge Nordlund has laid the foundation for the same argument to be made in any case in which a defendant pleads guilty to a charge that is not a lesser included offense of what they were originally charged with.

As an example, consider a scenario in which a person is charged with reckless driving, but then takes advantage of a plea bargain and  pleads guilty to improper driving.  In this case, since improper driving is not a less included offense of reckless driving, the argument could be made that they are entitled to an expungement of their record.

If you or someone you know has a charge on their criminal record that they would like expunged, please feel free to contact Westlake Legal Group to discuss the various options available.

Virginia DUI Law: The Penalties for A DUI Conviction

As one of the most frequently charged offenses in the Commonwealth of Virginia, driving under the influence (DUI) is a very serious offense.  Since it is a class one misdemeanor, the Court may sentence a person found guilty of DUI to a variety of penalties, depending on the number of subsequent offenses and the amount of intoxication:

First Offense

  • Jail of up to 12 months
    • If BAC is .15 or greater, there is a mandatory jail sentence of 5 days
    • If BAC is more than .20, there is a mandatory jail sentence of 10 days
  • Fine between $250 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in the Virginia Alcohol Safety Action Program (“ASAP”) as well as attendance at Victim Impact Panel
  • A loss of license for one year is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (within 5 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 20 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of and additional 10 days
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (between 5 and 10 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 10 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of an additional 10 days.
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days.
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required.
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Third Offense in a 10 year period

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
    • Mandatory jail term of 90 days. (180 day mandatory jail term if all three offenses committed in a 5 year period).
  • Loss of license indefinitely
  • Court fine of $500-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Fourth Offense within 10 years

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
  • Mandatory jail term of 12 months.
  • Loss of license indefinitely
  • Court fine of $1,000-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Offense by Person under Age 21 (BAC of .02-less than .08)

  • Loss of license for six months.
  • Fine of not more than $500 plus court costs.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.  Nevertheless, the severity of these consequences often necessitates proper legal representation.  If you find yourself facing a DUI charge,  it is well within your best interest to spend some time researching competent attorneys in your area.  As always, feel free to contact Westlake Legal for a free consultation.


Virginia DUI Law: The Effect of a DUI On Insurance and License

Q: What does a conviction for DUI do to my insurance and license? 

A:  One of the most frequent requests I receive from Traffic/DUI clients is to negotiate for fewer points on their driving record if they are found guilty.  In fact, fearing skyrocketing insurance payments, many clients offer to plea to a lesser offense in exchange for reduced points.   Unfortunately, points on a driving records are not assessed by the Court, so neither of these options are possible.  Points are assessed by the DMV, and depending or one’s driving record, a conviction for DUI could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of DUI will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction. A 2004 study concluded that a DUI conviction costs up to $20,000 over the life of a convicted defendant in the form of increased insurance premiums and other fees.

When faced with the possibility of such a substantial financial burden, many people find the idea of hiring an attorney who will aggressively defend their rights much more appealing.  Should you ever find yourself in need of such services, please feel free to contact Westlake Legal Group to schedule a consultation.

Virginia Divorce Law: How Child Support is Determined

A popular question asked during divorce matters is “How is child support determined?”  Since the answer to this question is often very important, not only for the parties involved in the divorce but for their children as well, it is important to understand the process of child support determination prior to filing for divorce.

As a matter of principle, every parent has a duty to support their children.  To this end,both parties are responsible for child support and support is initially determined by application of Virginia Code § 20-108.2, the state guidelines for child support. Each parent is expected to pay a pro rata (proportional) share of the child support which is calculated based on the gross incomes of the parents, the costs of daycare, cost of health insurance, and costs of extraordinary medical expenses. Courts can deviate from the guidelines after first determining the guideline amount and making a determination of a need for deviation in order to correct what is perceived as a manifest injustice.

Virginia Code Section 20-108.1 allows for deviation from the guidelines based on the following factors:

1. Actual monetary support for other children or family members;

2. Arrangements regarding custody of children;

3. Imputed income to a party who is voluntarily unemployed or voluntarily underemployed except income may not be imputed to custodial parent when child is not in school, child care services are not available and the cost of such child care services are not included in the calculation;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Debts incurred for the production of income;

6. Direct payments ordered by the court for health care coverage;

7. Extraordinary capital gains;

8. Age, physical and mental condition of the child;

9. Independent financial resources of the child;

10. Standard of living established during the marriage;

11. Earning capacity, obligations and needs, and financial resources of each parent;

12. Education and training of the parties;

13. Contributions (non-monetary and monetary) to the well-being of the family;

14. Provisions with regard to marital property;

15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

16. Written agreement between the parties as to amount of child support;

17. Agreed pendente lite decree (temporary support); and

18. Other relevant factors.

Child support is owed to any unemancipated child who is a full time high school student who has not reached the age of 19. Support is not awardable beyond the child’s 18th birthday or high school graduation, whichever is later. Further, parents cannot be forced to pay for college expenses unless agreed to in writing by the parties.