Answers To Frequently Asked Questions About Criminal Defense In Virginia

When you are facing serious criminal charges in Virginia and have a lot at stake, you can never ask too many questions. I am criminal defense attorney Darwyn Easley and over the past 20 years have been asked many different questions about the law.

The following are answers to frequently asked questions about criminal charges:

What should I expect at my arraignment for a DUI charge?

If you have been charged with driving under the influence (DUI), your first court appearance will be your arraignment. Often, the hearing will be the day after you were arrested, if you were detained. In some courts, you will be taken to the courthouse for your arraignment. However, the judges in many jurisdictions will conduct the hearing by video conferencing while you remain in jail.

Sometimes, you may have been released from jail on your own recognizance – your promise to return for all court hearings – or by posting bail soon after your arrest. If this happens, your arraignment could be a few days after you were arrested.

Your arraignment will be a short court hearing before the judge. At the hearing, the judge will do the following:

  • Read the criminal charges against you.
  • Ask if you have hired an attorney and offer to appoint a court-appointed attorney if you cannot afford to pay for one. The judge will most likely ask you questions regarding your financial situation if you are requesting that an attorney be appointed for you.
  • Ask how you will plead to the charges. You can plead guilty, no contest or not guilty. It is often best to plead not guilty until you have discussed your case with an experienced criminal defense attorney.
  • Decide whether you can be released on personal recognition or set the amount of your bail if this has not been done earlier.
  • Announce the future court hearings in your case, such as a preliminary hearing, pretrial motions and trial. You must attend these hearings.

You should consult with your attorney before your arraignment and have them attend it with you if possible – especially if your bail will need to be set.

If you have been charged with a DUI, I can advise you in more detail about what to expect at your arraignment. Call me today at 703-229-0834 to schedule a free consultation.

Can charges be dismissed if the police don’t inform me of my Miranda rights?

If the police did not inform you of your Miranda rights when taking you into custody, you may believe that the charges against you will be dismissed. Unfortunately, that is not what usually happens—at least not automatically. However, you may have a strong defense if the police make the big mistake of not telling you about your Miranda rights.

Your Miranda rights protect your right under the Fifth Amendment to the U.S. Constitution to not make self-incriminating statements. After being taken into custody, the police must tell you of the following:

  • You have a right to remain silent.
  • Anything you say could be used against you in court.
  • You have a right to an attorney.
  • An attorney will be appointed for you if you cannot afford one.

The police cannot interrogate you until they inform you of these important rights. If they fail to do so, it can affect your criminal case in the following ways:

  • Any statement or confession you made would be considered involuntary and could not be used against you in your criminal case.
  • Any evidence the police obtained as a result of your confession or statement may not be admissible in court.

If the police cannot use this evidence against you, they may have an extremely weak case against you – which could be grounds for the dismissal of the charges against you. However, you will need an experienced criminal defense attorney to help you raise this defense as well as any other defenses that may be relevant to your case.

If you have been charged with a crime, I invite you to read my free book, “The Criminal Legal Process in Virginia,” and fill out the online form to schedule a free consultation.

Can I get my DUI charge reduced to a wet reckless charge in a plea agreement?

If you were charged with driving under the influence (DUI) – especially if it was an honest mistake and your first offense – you do not want a DUI conviction on your criminal record. You may be able to enter into a plea agreement with the prosecutor to reduce the charges to a lesser charge. However, you will need an experienced criminal defense attorney to help you obtain this deal.

When You May Be Able To Enter Into A Plea Agreement For A Wet Reckless Charge

A wet reckless driving charge is a reckless driving charge when alcohol is involved and is less serious than a DUI conviction. Wet recklessness is not a specific statutory violation, and it is not available in all localities in Virginia. While prosecutors will not always agree to a reduced wet reckless conviction, they may do so in the following situations:

  • Your blood alcohol content (BAC) is slightly below or above .08%.
  • The prosecutor’s case has weaknesses, and he would rather obtain a conviction than the possibility of losing a trial.

The penalties for a wet reckless conviction are less serious than for a DUI. You could face the following penalties:

  • Up to 90 days in jail
  • Probation for up to two years
  • Fines
  • Suspension of your driver’s license for up to six months
  • Required to participate in a VASAP alcohol education program

If you have been charged with DUI, an experienced criminal defense attorney may be able to help you enter into the most favorable plea agreement for your situation. Fill out our online form to schedule a free consultation and start learning more about your rights.

Can I be charged with a DUI even though my blood alcohol level was below the legal limit?

Whether you bar hop on the weekends or merely drink on social occasions, it’s important to know how to drink responsibly, especially if you’re planning to get behind the wheel. In addition to protecting yourself from a potential drunk driving accident, waiting to drive until you’re sober will help you avoid DUI charges.

Over the past few years, Virginia has drastically increased its drunk driving enforcement campaign in order to punish would-be violators. As such, more and more DUI checkpoints have been set up and traffic stops have increased. Ultimately, this means that the risk of being caught when you drink and drive is much greater than it was 10 years ago.

DUI Charges Despite Low BAC Levels

One of the fundamental tools a police officer uses to determine whether a driver is drunk is a breathalyzer. The breathalyzer essentially tests the amount of alcohol in your breath and determines your blood alcohol content based on that. In Virginia, the legal BAC limit for adults is 0.08%. This means that if you blow a BAC of 0.08% or higher, you’ll be charged with a DUI. However, blowing below 0.08% doesn’t necessarily exonerate you from charges. In some cases, officers reserve the right to charge and arrest you under suspicion of drunk driving despite the results of your breathalyzer test. These cases include violations of the following:

  • Zero tolerance laws: These laws focus primarily on underage drinkers and specifically address criminal punishments for operating motor vehicles under the influence of any amount of alcohol. For instance, if you’re 20 years old and driving with a BAC of 0.03%, you can be charged with a DUI.
  • Noticeable impairment: Virginia laws not only take into account the amount of alcohol drivers have consumed but also how that alcohol affects their abilities. Alcohol tolerance varies from person to person. No matter what your tolerance, if you exhibit noticeable impairment while driving or an officer witnesses dulled senses, you can be charged with a DUI even if you blow a BAC below the legal limit.
  • Passage of time rule: The passage of time allows officers to charge drivers with a DUI if their BAC is near the legal limit (0.07%). The assumption is that when the driver began his drive, he was legally drunk, but by the time the officer pulled him over, his BAC had lowered to a legal level.

We’ve Got Your “BAC”

If you’ve recently been charged with a DUI or DWI offense even though your BAC was below the legal limit, call me today. My exceptional skills and experience will help you build a strong and reliable DUI defense. Contact me today at 703-229-0834. I’ll have your back.

Need more information on drunk driving charges or defense? Follow me on Facebook and Twitter.

How can I have my criminal record expunged from public access?

If you have been arrested in Virginia, you have a public criminal record. Potential employers, professional licensing agencies, schools and even your family and friends can see it. Because a criminal record could cause problems in your professional and personal life, you may want to consider filing for expungement of your record from public access.

Sealing Your Record

In Virginia, expungement is the same as sealing your records. When your criminal history is expunged, it is removed from public view. Your record will not show up if you’re the subject of a public search. The records are not destroyed; rather, they are sealed. Only Virginia law enforcement personnel and the courts can access your criminal record.

Getting Your Juvenile Record Expunged

Virginia handles juvenile criminal records differently. If you committed a crime before turning 18, it’s likely you can get your record expunged. Once you turn 19 and five years have passed since the conclusion of your case, your juvenile records are automatically expunged. The only exceptions are for violent felonies and motor vehicle violations. In these cases, the records are expunged when you turn 29.

In addition, when juvenile records are expunged, they’re destroyed completely. Your case is treated as though it never happened. If there is ever an inquiry about the case, both the court and the person who committed the crime can respond that no record exists.

You can have only one record expunged in your lifetime, so it is important to consult with an experienced attorney prior to filing a petition for expungement.

Qualifying For Expungement

Your records are not expunged simply because you request that they be sealed from public view. However, there are certain circumstances that make you eligible for expungement, including:

  • You were acquitted of all charges without pleading nolo contendere (no contest).
  • The charge was not prosecuted, and it was formally abandoned with a motion of nolle prosequi.
  • The charge was made against someone who used your name and identity in his criminal case.
  • You received an Absolute Pardon for what was determined to be an unjust conviction.
  • Your case was dismissed.

Filing The Request

Easley Law Firm can guide you through the detailed petitioning process and support your request for expungement in court. Complete my online form or call toll free at 703-229-0834 to get started.

What are the effects of being added to the sex offender registry?

In 1996, the Federal Bureau of Investigation instigated a database to keep track of convicted sex offenders. Registration was based on convictions of:

  • Sexual offenses against minors
  • Sexually violent acts
  • Predatory sexual actions

The purpose of this monitoring was (and is) to prevent offenders from causing further harm to others. However, over the last 20 years, registration has meant more than just “keeping tabs.” Information about criminal sex convictions in the hands of the public has created several additional consequences. Many believe that these consequences are justified for public safety – after all, offenders should have thought about the consequences before they hurt someone. However, not all registered offenders are actually guilty, and some are guilty of minor offenses, yet they still have to endure the same consequences as rapists and child molesters.

Consequences Of Being On The Sex Offender Registry

No matter what the cause of the sex offense charge, once you’re convicted, you’re branded a sexual offender. You will be required to register and remain registered until the court states otherwise (in some cases, you may be required to stay registered for life). However, even if your registration is temporary, the label and consequences of that label will remain.

Some of the consequences include:

  • Registering requirements: Although the sex offender registry was initially created for federal use, each state now has its own database in which to keep track of registered citizens. This means that every time you relocate to a different state, you’ll be required to re-register on their database as well as become subject to that state’s laws regarding sex offenders.
  • Restricted residency: Most states prohibit sex offenders from living within a certain distance of gathering places for children, such as parks, schools, daycare centers and playgrounds. As a result, it may be difficult to find housing that meets all of your requirements while also taking your personal needs into account.
  • Restricted employment: In addition to housing restrictions, most states also limit where a sex offender can work. For instance, anywhere near the following places may be restricted: schools, clothing stores (with changing rooms), salons or spas, as well as positions of power over someone else (doctor, psychiatrist, etc.).
  • Loss of child custody: No matter what your conviction was for, if you are registered as a sex offender, your ex can use the registration as a reason to deny you custody of your children, stating that you may be a danger to your own child.
  • Decreased privacy: Since the registry is meant to keep tabs on past offenders, privacy is extremely limited.
  • Bias, prejudice and intolerance: Once convicted and registered, family, friends and acquaintances may view you as a threat or, at the very least, an outcast. Some may even become withdrawn or abusive (mentally and physically).

Fighting To Preserve Your Reputation And Future

Once you’re branded as a sex offender, there is no turning back. This is why it is extremely important to get the help you need before it’s too late. Contact me at 703-229-0834 to see how my extensive experience and determination can protect your rights and help you avoid a darkened future. Your name and reputation are important. Allow me the chance to protect them from being sullied. Contact me today!

If I was treated with excessive force by the police, would that affect my criminal case?

The news has been flooded lately with videos and testimonies of the use of excessive force by police officers. The “Black Lives Matter” campaign and the sadly consistent cell phone videos of police attacking unarmed civilians bring the subject of excessive force to the forefront.

For their own safety, police officers are granted the authority to determine when and how much force is required in a given situation. If they feel their lives or the lives of bystanders are in danger, they are permitted and even expected to use the force necessary to subdue the suspect. However, when a civilian’s civil liberties are violated as a result of an officer’s decision to use force, the injured party (whether guilty of the accused crime or not) may have a federal case for police brutality. This civil case could either help or hurt his criminal case.

Positive And Negative Effects Of An Excessive Force Claim On Your Defense

When you’re accused of a crime, no matter the severity, you are guaranteed certain rights by the Constitution of the United States. It doesn’t matter if you’re being pulled over for a traffic violation or accused of a felony; your civil rights can’t be ignored. One of these rights deals with equal protection. If an officer uses excessive force on you and causes severe injuries, he has violated your civil rights.

But what does this mean for your defense? Plenty.

The legal risks of pursuing a police brutality case during a criminal case include:

  • Trial postponements: If you are hospitalized, your trial can be postponed, giving prosecutors more time to build their case. On the flip side, if you’re severely injured, your lawyer can make recommendations to postpone your hearing until you’re able to safely represent yourself.
  • Incentive to maliciously prosecute: Filing a civil claim or lawsuit while your criminal case is pending might cause the government to work harder to secure your conviction.
  • Negative full disclosure: When pursuing your claim, you’ll be required to make statements about the incident, which in turn could provide “discovery” or evidence of guilt for the prosecution of your criminal case.

The legal options available if you wait until after your criminal trial to pursue your civil suit include:

  • Positive discovery: You may find that your criminal defense attorney has gathered valuable discovery in your criminal case. Ultimately, benefitting your civil suit.
  • Plea bargain: Once your criminal trial is underway, you can use the leverage of the civil rights violation to help your plea bargain.

Bringing a civil rights charge for police brutality against an arresting officer or police department could help or hurt your defense. However, an experienced lawyer such as me can make sure that the effects of inexcusable police actions are used in your favor, not against you.

Contact me at 703-229-0834 or follow me on Facebook and Twitter for more information on civil rights violations and criminal defense strategies.

Can volunteering to participate in a driver safety course help my defense? If so, what can I expect?

When you’re charged with a traffic violation, depending on the severity of the charge, you could face a variety of penalties. Whether you’re guilty or not, if the court finds your defense lacking, it can penalize you for your violation by ordering that you:

  • Pay expensive fines
  • Have points added to your license
  • Perform community service
  • Attend recovery programs such as Alcoholics Anonymous

However, with the advice and guidance of me, Darwyn Easley, you may be able to lessen the burden with one simple action: volunteering to take a driver safety course.

Driver Benefits Of Completing A Safety Program

Driver safety programs are basically refresher courses to remind you of the necessary actions to take in order to drive safely. Although you may have learned this in driver training, the fact that you were charged with a traffic offense suggests that you may have forgotten the finer points. However, by showing the court that you’re willing to improve your driving with a program, you not only convey responsibility but also show your willingness to cooperate, which can go a long way in lessening punishments.

Here are a few additional ways that completing a safety program may be a wise decision in helping your defense:

  • Satisfies court-ordered requirements: As part of your penalty for a traffic violation, the court may require you to complete a driver safety course in order to make sure you’re reacquainted with proper driving etiquette and laws.
  • Reduces fines and court fees: By volunteering to take (and pay for) a safety course, you’ll show maturity, which can have a big impact on the court. As such, taking accountability and attempting to improve your driving may cause the court to be lenient with sentencing.
  • Removes points from your license for past violations: When you complete a driver safety program, you can submit your certificate of completion in order to remove points from your license. Likewise, if you currently do not have any points on your license, completion of the course can provide a cushion of up to five safe driving points to counteract any future violations

For more information on how you can improve your traffic defense, contact me at 703-229-0834 or follow me on Facebook and Twitter for periodic updates and defense advice.

Can I be charged with manslaughter or fetal homicide if I cause a traffic accident that results in a miscarriage?

When you’re accused of causing a traffic accident, no matter how minor or severe, the advice of an experienced traffic defense lawyer can go a long way. However, the importance of representation becomes essential when the charge involves injuries or death. When your negligent or reckless driving causes a fatal accident, you could be charged with not only reckless endangerment but also vehicular manslaughter.

Although these charges may seem justifiable, you may not know that you could also be charged with wrongful death if your negligence causes a pregnant woman to miscarry.

Wrongful Fetal Death In Virginia

In 2012, Virginia enacted an expansion of its cause of action for wrongful death to include wrongful fetal death. In essence, this expansion recognized unborn babies as protectable beings by law. In other words, fetuses were granted legal “personhood” and are protected by the same laws that protect all people. What this means to the at-fault driver in a crash that kills an unborn baby is that he will be held accountable for the death just as he would be if any other occupant of the car was killed. The accident could cause the mother to miscarry or could lead to a stillborn baby weeks later – either way, the at-fault driver can be charged with wrongful death. As an unborn baby is extremely vulnerable when riding in a car, you could find yourself facing very serious charges for what you may think is a minor car accident.

Therefore, the next time you decide that the consequences of checking your phone, running a stop sign or drinking and driving are worth the risk, think about the defense you’ll need if your actions result in the death of an innocent person – unborn or otherwise.