Comprehensive and Informative Commentary on State and Federal Legal Matters
Tag Archives: Westlake Legal Group
August 30, 2012Posted by on
For all those out there suffering under the abject tyranny of their employer’s oppressive social media policy, hope is on the horizon. According to a report published last month by the National Labor Relations Board (NLRB), the social media policies enforced by a number of Virginia employers may be overly broad, and therefore unenforceable.
The Board’s report, now the third of its kind, examines seven cases in which acting General Counsel Lafe Solomon found fault in the social media policy enforced by an employer on its employees. In six of cases, Solomon concluded that “at least some of the provisions in the employer’s policies and rules are overbroad and thus unlawful under the National Labor Relations Act.”
To help differentiate between lawful and unlawful policies, the report cited the following provisions as examples of overly broad and, therefore, unlawful policies:
TREAT EVERYONE WITH RESPECT
Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.
OTHER [EMPLOYER] POLICIES THAT APPLY
Think carefully about ‘friending’ co-workers . . . on external social media sites. Communications with coworkers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your social media channels could become a concern in the workplace.
In each of these examples, it was determined that the wording overstepped the boundaries of labor laws by failing to properly define the parameters of the policy and by infringing on the employee’s ability to communicate with co-workers via social media.
A full version of the Board’s report, which includes a full-length example of a lawful social media policy, can be found in the links on the NLRB’s site, here. For more information on contract law, or to discuss the legality of your employer’s social media policy, feel free to contact Westlake Legal Group. You can find us on Twitter and Facebook via the links at the bottom of this blog.
May 7, 2012Posted by on
NOTE: All of the policies and procedures addressed below are based on the standard practices of Westlake Legal Group and are not intended to be construed as anything other than such.
To begin with, it is important to understand that a Chapter 13 case follows the same initial process as a Chapter 7 case. After the initial consult, a “means test” is applied in order to determine eligibility under Chapter 7. Once it is determined that you are not eligible for relief under Chapter 7, we will begin to prepare your application for relief under Chapter 13.
When filing under Chapter 13, we will typically propose to the Chapter 13 Trustee a payment plan that sends him/her your disposable income to be used to pay off your creditors. The payment plan cannot exceed your disposable income and the plan cannot exceed 60 payments (5 years). Unless your plan allows you to pay off all your debts in fewer than 60 payments, you should count on a 60 month plan. At the end of the plan term, the remaining debts (with a few exceptions) are eliminated, just as in a Chapter 7 case. While the plan is in effect, you do not pay interest on most debts. You may also pay a portion of your legal fees through the plan
At the moment Westlake Legal Group files your Petition for relief under Chapter 13, legal and collection actions must stop. This “stay” applies to foreclosures, garnishments, repossessions, and any other lawsuit. The first payment of the plan is due no later than 30 days after filing. This payment is due even if the plan is not ultimately approved. Failure to make this payment will result in an automatic dismissal of your case.
One other important obligation, incurred as a result of being granted the “stay” upon filing, is that you must keep all of your regularly incurring debts current. These include house payments, car payments, and any other secured installment payment.
It is also important to realize that the Trustee will not send you a monthly reminder. It is up to you to make sure your payments are received by the Trustee on time. In addition, the Bankruptcy Code requires that a payroll deduction order be entered so that your employer pays the Plan payment directly to the Chapter 13 Trustee. However, you are responsible to ensure the payment is made. If your employer fails to make the payment for some reason, your case can be dismissed.
It is important not to miss any payments to the Trustee. If you miss a payment, the Trustee cannot pay your creditors as called for by the Plan and the Trustee may be obligated to file papers with the Bankruptcy Court asking that your case be dismissed. If your case is dismissed, your creditors will be notified, and they may resume collection against you. If there is a serious change in your circumstances that affects your ability to make payments under the plan, contact Westlake Legal Group immediately. Do not miss a payment. We will notify the Trustee. We will also review your status, and possibly seek to modify your plan.
Once the Petition and plan are filed, if the Trustee recommends approval of the plan, you will receive a Confirmation Order setting forth the duration of the plan, the amount of payment, and other obligations. If the Trustee does not initially approve the plan, or a creditor successfully objects to the plan, we have to file an amended plan or attend a hearing. It is imperative that you continue to make your plan payment even if there is an objection or a request to submit an amended plan.
After the plan is filed, as in a Chapter 7 case, the Trustee will conduct a hearing to verify the accuracy of your Petition and to determine the status of your assets and income. Creditors have 90 days from that hearing to file a proof of claim in order to receive some payment from the plan (governmental units, like the IRS, have 120 days). Usually within six months of filing, the Trustee’s office will send a report called “Notice of Intent to Pay Claims.” You will have 30 days to object to any amounts claimed in the report, otherwise the debt will be deemed valid and paid in the Chapter 13 case.
If the plan does not call for paying all debts in full, every year you will be required to provide signed copies of your Federal and States tax returns to the Trustee within 10 days of their filing. Westlake Legal Group will also assist you in determining the proper number of tax exemptions to take from your employer, as all tax refunds in excess of $250.00 must be paid to the Trustee as an additional payment for the benefit of your creditors.
Every six months, you will receive a report from the Chapter 13 Trustee’s office listing the payments received and to whom payments have been made during that period. This report should be reviewed to ensure consistency. Approximately 6 to 8 months after filing, the Chapter 13 Trustee will conduct a short, half-hour meeting to review your case.
Information regarding your Chapter 13 filing and the specifics of its administration are available as matters of public record, and the financial details of your case will be disclosed to parties in interest.
When you are finished making all of the payments in the plan, as directed by the Confirmation Order, the closing procedure will begin. If you are paying less than 100% to your unsecured creditors, you must file all the appropriate tax returns in order for the case to be closed. After all required information and payments have been received, the Chapter 13 office will issue an order to stop your payroll deduction. Any overpayments will be refunded after your case has its final audit. If you pay 100% of your debt, you can pay your case off early. After all the requirements of your case have been satisfied, you will receive your discharge papers from the Court in approximately four to six weeks.
For more information about the Chapter 13 process, or to schedule a personal consultation, please feel free to contact Westlake Legal Group and we will be glad to meet with you.
April 24, 2012Posted by on
One of the first things people think of when they think about divorce is the division of marital property. Regardless of which side of the divorce they may fall, it seems that most people are interested in having this aspect of the process work out most favorably for them. Given this, let’s take a few minutes to briefly explore how property is allocated during divorce proceedings.
In a divorce action, property is categorized three ways : Marital Property, Separate Property, and Mixed Property. One of the major goals of any divorce action is to preserve property. Thus, many times, one will allege a fault ground, if such a basis exists, so that the Court can immediately make a temporary ruling with regard to the use and disposition of marital property. In deciding how to allocate property, the court is required to make an “equitable” distribution of property. Please note that “equitable” and “equal” do not mean the same thing.
1. Marital Property: Marital property is all property that is either jointly titled or acquired during the marriage other than by gift from third persons or by inheritance. This includes that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if the separation was intended to be permanent. The Court’s powers with regard to titled property are limited. The Court may award jointly titled property to either party, or order the sale of jointly titled property and the proceeds split a certain way. However, separately titled property cannot be given to the non-title holder. Nevertheless, the Court can award monetary compensation to the non-titled owner to offset any gain in marital distribution derived from being the sole titled owner. When making a monetary award, the Court can consider the following factors as identified in Virginia Code Section 20-107.3(E):
a. The contributions, monetary and non-monetary, of each party to the well-being of the family;
b. The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
c. The duration of the marriage;
d. The ages and physical and mental condition of the parties;
e. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce;
f . How and when specific items of such marital property were acquired;
g. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
h. The liquid or non-liquid character of all marital property;
i. The tax consequences to each party; and
j. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
2. Separate, non-marital property: Separate, non-marital property is all property acquired before the marriage in the sole name of either party, and all property acquired during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, as long as the proceeds of such non-marital property have themselves been kept separate during the marriage. Income derived from separate property is deemed to remain separate property. The Court has no authority to order the division or transfer of separate property.
3. Mixed property: Separate property can be partially converted to marital property and is referred to as mixed property. Income from separate property can be considered martial property to the extent that it is attributable to the significant personal efforts of either party. The non-owning spouse has the burden of showing that the increase is due to his or her personal efforts. When separate and marital property are commingled, the class of property is considered transmuted to the category of property receiving the contribution unless the contributed property is retraceable by a preponderance of the evidence, and was not a gift. When separate and marital property are commingled to purchase or acquire other property, the newly acquired property shall be considered marital property unless the separate property is traceable.
For more information on this topic, or to schedule an in-person consultation, contact Westlake Legal Group at 703-406-7616
April 19, 2012Posted by on
When considering bankruptcy, it is imperative that one considers all of the options available and the unique, intricate aspects of each. In this particular post, we will explore the characteristics of one of the most popular forms of bankruptcy–Chapter 7. In particular, we will focus on the process through which ones files for Chapter 7 bankruptcy in Virginia. Since I can only speak to what I know, all of the procedures outlined below are based off the practices adhered to here at Westlake Legal.
As you might have guessed, the bankruptcy process often begins in an attorney’s office. If you feel you want to discuss your options for filing for bankruptcy relief in the Commonwealth, please feel free to schedule an appointment with our firm, Westlake Legal Group. Regardless of which firm you chose though, be sure to bring a complete list of your assets and your current bills with you. Typically, you will be asked to fill out a questionnaire with regard to those assets and bills. In our office, we will also ask you to authorize a credit check that will be ordered and sent to us. The attorney will also provide you with certain required notices to help better inform you of your responsibilities down the line.
After we get your information, we will apply what is called the “means test.” This test, which is based on income, will give a preliminary determination of your eligibility to apply for relief under Chapter 7. You are automatically eligible to wipe out your debts with a Chapter 7 bankruptcy if you are below the average income for your family size inVirginia. As of April 19, 2010, the averages for Virginia are:
|Family Size*||One Person||Two People||Three People||Four People||Five People|
*Add $7500 for each person in excess of four
If your family income falls below those listed above, you are automatically entitled to relief under Chapter 7. If you exceed those limits, an additional analysis needs to be performed.
If your family income exceeds the average as identified above, you may still be eligible for a Chapter 7 filing. To determine that, Westlake Legal will evaluate your specific case. We will determine your “disposable income” after deducting certain expenses from your overall pay.
If your projected disposable income over the next five years is less than approximately $175 per month, you will likely be eligible for Chapter 7 relief. If you have more than approximately $175 disposable income per month, you may only be allowed to use Chapter 7 if you can demonstrate special circumstances, such as on-going medical situation. Otherwise, you may have to consider filing under Chapter 13.
Once we have determined that you are eligible for filing under Chapter 7, we will ask you to take an online credit counseling course. This is usually done in our office. Once completed, we will prepare the necessary paperwork, with your assistance, and file with the Bankruptcy Court.
Once we have filed, you will be required to take another online course, this one on financial management. This is also usually done in our office. This must be completed before you can receive a discharge.
Approximately 30 days after filing, the Trustee will conduct a hearing to verify the information placed in the Bankruptcy Petition and to ask questions about any equity in highly valued assets. After the Trustee’s hearing, the Trustee sends notice to creditors and gives them approximately 60 days to make inquiry and object to the discharge, if a reason exists. After the 60 days, assuming there are no objections, the Court enters a final Order of Discharge and the case is ended.
For more information on the Chapter 7 process, or if you would like to schedule a personal consultation, please feel free to contact us at any time.
We are a Debt Relief Agency.
We help people file for Bankruptcy Relief under the Bankruptcy Code.
March 22, 2012Posted by on
If, having exhausted all other attempts at resolving marital issues, you find yourself facing divorce as a viable option, there are a few things you should consider before any initial action is taken. Among the important decisions to be made is the decision of whether to file for divorce on a fault or a no-fault basis. In this post, we will take a look at each of these types of filings in the hopes of shedding some light on the differences between fault and no-fault divorce filings.
“Fault” bases for divorce usually involve contested divorce actions. These are usually expensive, time-consuming, and emotionally draining. If the fault resulted in an economic impact, fault bases for divorce can be beneficial from a financial stand point as a judge is able to allocate marital property and assets in a way to compensate for the fault. A judge is also able to order the faulting party to pay the non-faulting party’s attorney fees. Fault is usually alleged as a reason to begin a divorce suit, so that one can ask the court to freeze marital property, award temporary support and custody (pendente lite relief), and to be able to seek discovery from the other side (requiring your spouse to produce documents and answer questions under oath), which cannot be done without having first filed a divorce suit. Fault is also used as “leverage” for a settlement; divorce files are public records, and the threat of finalizing a divorce on fault grounds may produce a settlement, one term of which is usually finalizing the divorce on “no fault” grounds.
“No fault” divorces, on the other hand, require a separation period of one year (six months if there are no minor children and there is a separation agreement). To establish grounds for being separate, the parties must provide independent evidence, to meet the standard of preponderance of the evidence, that not only are the parties not engaging in marital relations, but they are not holding themselves out to the public as a married couple. Parties may live separate and apart under the same roof, as long as they limit their interactions in such a way that does not mimic a martial relationship.
While we hope that this information has been helpful, please keep in mind that this is a simplified explanation of a potentially complex legal matter. For a more in-depth determination of your specific situation, contact Westlake Legal Group today to schedule your personal consultation.
March 19, 2012Posted by on
For anyone considering seeking bankruptcy relief, understanding the bankruptcy system is of utmost importance. For this reason, we have created a number of short articles that briefly explain some of the most essential aspects of the bankruptcy process. In this particular post, we will be discussing the difference between Chapter 7 and Chapter 13 bankruptcy.
The laws regarding bankruptcy are found in Title 11 of the United Stated Code. Each Chapter of the Title deals with certain parts of the bankruptcy process. For example, Chapter 1 provides general provisions and definitions as they apply to the bankruptcy process. Several chapters deal with specific relief for specific types of debtors. Chapter 11 provides the rules and law for the reorganization of large companies that want to keep operating. Most individual debtors are concerned with either Chapter 7 or Chapter 13.
Chapter 7 is the most common chapter used by individuals in debt. It is considered to be the quickest and least expensive way of obtaining relief. When filing under Chapter 7, most of your unsecured debts are discharged–meaning they are eliminated and cannot be collected. Usually you cannot eliminate taxes, student loans, or child support. You also may not be able to eliminate some debts associated with a divorce. At Westlake Legal Group, we can analyze your debts and give you an accurate prediction of the likelihood of their discharge.
Chapter 13 is referred to as an adjustment of debt and is used when a debtor has regular income and can pay his or her living expenses, but cannot make all the payments on his or her regular, scheduled debts. Essentially, the debtor cannot make all his payments but can make some contribution to paying back his debt. Often people with higher incomes are required to initially file under Chapter 13. Under a Chapter 13 filing, the Court adopts a payment plan you can afford. The plan stops the accrual of interest on unsecured debt and can require payments for up to five years. If all the debt can be paid off sooner once interest is stopped, the plan may be for a shorter period. One is eligible for Chapter 13 relief if his or her unsecured debts are below $360,475 and his or her secured debts are less than $1,081,400.
For more information regarding Chapter 7 or Chapter 13 bankruptcy, follow this link to a helpful site, or give us a call at Westlake Legal Group to set up an appointment.
Pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), please be advised that:
We are a Debt Relief Agency.
We help people file for Bankruptcy Relief under the Bankruptcy Code.
December 30, 2011Posted by on
There are four main grounds for divorce in Virginia. These are identified in Virginia Code § 20-91. The first three are usually considered “fault” grounds and the last is considered a “no-fault” ground for divorce.
The four grounds for divorce in Virginia are as follows:
1) Adultery or sodomy and buggery outside the marriage
2) When one party had been convicted of a felony and confined in prison for more than one year
3) Cruelty, causing reasonable apprehension of bodily hurt, desertion or abandonment
4) Having lived separate and apart without any cohabitation and without interruption for one year.
Adultery is the act of having sexual relations with someone other than your spouse. Most importantly, in order to qualify as a grounds for divorce, the adulterous conduct by one of the parties must be the reason for the disintegration of the marriage. There have been many defenses that attempt to show disintegration prior to an adulterous act. In some states, you are free to have relations after you separate. InVirginia, it is considered adultery to have sexual relations with another at any time while you are married. This is an important distinction. There is no statutory waiting period for divorces based on adultery.
Interestingly enough, adultery is a misdemeanor in Virginia. As a result, you must prove adultery by “clear and convincing” evidence. You do not need to catch your spouse “in the act.” It is sufficient to establish time and opportunity of circumstance, as well as an inclination to act. However, one needs an independent witness even if your spouse admits his or her infidelity.
When confronted with adultery, one may want to address issues with a counselor and decide whether one is capable of resurrecting the marriage. One also needs to decide if it is worthwhile to pursue the divorce on these grounds from an emotional as well as financial perspective.
2. Felony Conviction
Felony conviction is a grounds for divorce in Virginia when your spouse is convicted of felony during marriage for which he/she is sentenced to more than l year in jail and cohabitation with your spouse is not resumed after knowledge of the confinement.
3. Desertion and Cruelty
Desertion occurs when one spouse leaves the marital home and such leaving is not agreed upon by the remaining spouse. The party leaving must also desire the separation to be permanent. A cooling off period is not desertion, nor is a trip or a separate vacation. If both parties agree to a separation, one does not have grounds for desertion. If one alleges desertion, the alleging party must show that the leaving spouse intended the separation to be permanent and that his or her leaving was not condoned in any way by the one who remains. There is a one year statutory waiting period for divorce based on desertion. Once a divorce action is filed, it is not desertion to leave the marital home.
Desertion requires the concept of “clean hands.” Although a gradual breakdown in a martial relationship is not a legal justification for leaving, the person remaining must show that he or she did nothing to cause the other to leave. This does not mean that one cannot leave, only that he or she should be sure they can justify leaving.
Cruelty is one form of justification of leaving. It usually requires some form of physical violence or reasonable apprehension of bodily harm. Harm can be both physical and emotional. Usually one act does not trigger an ability to get a divorce based on cruelty. For one act to qualify, the act must be so bad that any reasonable person would be shocked upon hearing of it. Unfortunately, a slap does not usually reach this level of shock, but repeated slapping does. Thus, minor instances which are repeated can qualify as grounds for a divorce based on cruelty.
The Court can find that a cruel spouse is guilty of “constructive desertion” when that spouse’s acts cause the other spouse to leave the marital home to escape further acts of cruelty. The standard of proof for desertion and cruelty is a “preponderance of the evidence.”
4. Separate and Apart
On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.
If you feel that filing for Divorce under one of these four grounds is appropriate to your particular situation, don’t hesitate to contact Westlake Legal to schedule a consultation. Our attorneys have over 20 years of combined experience handling a wide variety of divorce issues.
October 14, 2011Posted by on
Since the inception of the nation-wide “Click it or Ticket” program, law enforcement officers across the Commonwealth has been regularly conducting seat belt checkpoints to target drivers who do not buckle up. In the last few months, I have received a few requests for further information/clarification as to what, exactly, the police are legally allowed to do, and what they are not, when it comes to roadblock stops.
To answer this question requires a bit more “legal jargon” than most blogs. However, case law clearly establishes the requirements for checkpoints to be considered legal and valid. The evolution of the arguments establishing the legality of certain types of checkpoints has evolved, in part, as follows:
The primary case dealing with the issue of checkpoints is Michigan Department of State Police v. Sitz. Here, in 1990, the U.S. Supreme Court evaluated the constitutionality of a Michigan highway sobriety checkpoint program. In this instance, the checkpoint involved brief stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. The police had no reason to suspect any of the drivers of any wrong doing prior to stopping them. Nonetheless, motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. The Supreme Court found that this checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State’s interest in getting drunk drivers off the road weighed heavily in their determination that the program was constitutional. However, to protect drivers’ rights under the Fourth Amendment, the Supreme Court underscored that to be legal, a roadblock had to be carried out in accordance with a pre-published plan where officers acted without exercising individual discretion.
In the 1979 case of Delaware v.Prouse, the Supreme Court further clarified the difference between a legal checkpoint-like stop and the illegal, warrant-less detention of a motorist. In this case, the Court held as invalid a discretionary, suspicion-less stop in which an officer stopped a vehicle simply to perform a check of the motorist’s driver’s license and registration. The officer’s conduct in that case was deemed unconstitutional primarily on account of his exercise of “standardless and unconstrained discretion.” However, the Court nonetheless acknowledged the States’ “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Accordingly, the Court suggested that “questioning of all oncoming traffic at roadblock-type stops” would be a lawful means of serving this interest in highway safety.
Most importantly, the Supreme Court further indicated in Prouse that it considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime. This case itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control.
Then, in the 2000 case of City of Indianapolis v. Edmond, the Supreme Court held that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints . . . stops can only be justified by some quantum of individualized suspicion.” In support of this opinion, the court stated the following:
“We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the “general interest in crime control” as justification for a regime of suspicionless stops. 440 U.S. at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.”
Moreover, and very specifically, the Supreme Court stated that the narcotics-interdiction purpose of the checkpoints in this case could not be rationalized in terms of a highway safety concern similar to the one present in Sitz.
“The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.”
The end result of this analysis is that local law enforcement agencies across the country are attempting to, and are, conducting widespread abuses of the Fourth Amendment by conducting road blocks, ostensibly for Prouse purposes of public safety, but then adding a general crime component to those stops. For example, while stopping they may have a drug dog sniff all cars. This additional action, in my view, is clearly illegal. There is no need to use a dog to meet the requirements of a registration check. Moreover, even if a dog sniffs and finds an odor of narcotics, there is not sufficient evidence of individualized suspicion to warrant a stop. For example, the officer cannot articulate a suspicion that the driver is in possession of narcotics, only that at some time narcotics were used in the car.
Unfortunately, bad lawyering sometimes paints the wrong picture when it comes to stops of this nature. In Wright v. State, from the Court of Appeals of VA, a panel found that since a proper stop was made at a registration checkpoint, a subsequent search related after a drug dog alerted during the time of the stop was valid. The lawyer never argued that component of Prouse that is essential: the sniff does not give individualized suspicion of wrongdoing. So, given this dichotomy, there will be battles in the future.
Personally I have had success defending a citation issued after a checkpoint stop because the official plan for the checkpoint authorized it to take place on road A at the intersection of Road B. However, the actual checkpoint was conducted on Road B and the intersection of Road A. As a result, I argued that all of the citations/violations issued as a result of the checkpoint were not enforceable since the spot was not in conformance with the established procedure.
Individual success stories aside, the real problem with checkpoints is that the people of Virginia do not protest them enough. Thousands of tickets are issued at checkpoints each year and each represents an individual case. Therefore, to drum up enough public unrest so as to actually challenge the validity of the checkpoint system requires that the majority of these citations are challenged in court. Unfortunately, the financial burden of defending oneself and a general fear of going in to court prevents most people from doing so. Passively encouraged by this lack of opposition, checkpoints continue to be used throughout the Commonwealth, in my opinion, for general crime enforcement while disguised as a registration check. The wolves are truly in sheep’s clothing in this sense.
Should you find yourself a victim of this particular law enforcement tactic, at least now you know that there are attorneys out there who can, and will, aggressively challenge checkpoint-driven violations. The attorneys at Westlake Legal are always available for consultation in this matter.