Recent happenings with law and interesting cases. The postings in this blog are not legal advice and do not create an attorney client relationship. These postings are for general informational purposes only. If you have a specific legal problem, consult an attorney.
Tuesday, April 27, 2010
Will Justice Roberts Like Grand Theft Auto?
Here we are today reading news that the United States Supreme Court will be reviewing a law that bans violent video games that may be obtained by children.
Friday, April 23, 2010
Red Light Cameras
There's a new thing hitting Richmond. Red Light Cameras. A photo will be taken of the license plate of the car alleged to be disobeying the traffic signal. Your fine for being caught will be $50.00. So, is this legal?
The first problem I see is proof of who is driving the car. Second, placing the burden on an accused to act or the accused will be convicted smacks of a complete denial of due process.
The first problem I see is proof of who is driving the car. Second, placing the burden on an accused to act or the accused will be convicted smacks of a complete denial of due process.
Expunging Your Record
Because the police and prosecutors sometimes arrest and prosecute innocent citizens, and having an arrest record for any crime is not conducive to obtaining the job you are seeking, the General Assembly has devised a way to remove this blemish from your criminal record. It is called an Expungement.
To be eligible for an expungement, your charge had to be based on a crime contained in Title 18.2 of the Virginia Code. Further, you must have been acquitted, or the prosecution took a "nolle prosequi" or the charge was otherwise dismissed, including a dismissal by accord and satisfaction.
Expunging the police and court records require filing a petition explaining the salient facts. In addition to filing the petition with the Circuit Court, a petitioner must obtain a complete set of fingerprints from a law-enforcement agency and provide that agency with a copy of the petition for expungement. The law-enforcement agency then submits the fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition and the CCRE then forwards to the Circuit Court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, and the set of fingerprints. After the Circuit Court receives the information from CCRE, the court will conduct a hearing to determine if the continued existence of the charge on the petitioner's record and the dissemination of the information related to the charge causes or may cause a "manifest injustice" to the petitioner. Upon this finding, the Court will enter an order requiring the expungement of police and court records, including electronic records.
For anyone charged with a misdemeanor, and the petitioner has no prior criminal record, the petition is entitled to a an expungement unless the Commonwealth can show good cause as to why the charge should not be expunged. Should you be the unfortunate person arrested by the cops and then, a bit too late to save your reputation, the Court finds that you are not the person the cops should have arrested or charged, you are entitled to an expungement. The Court is required to enter an order expunging all police and court records if you receive an absolute pardon for the commission of a crime that you did not commit. Additionally, anyone receiving a writ vacating a conviction pursuant to § 19.2-327.5 or § 19.2-327.13, the court is required to enter an order expunging your record.
No one may have access to any expunged court or police record, nor may anyone disclose to another person information in regarding the expunged record without a court order. Moreover, no employer or educational institution can require an applicant for employment or admission to disclose information concerning any arrest or criminal charge against that has been expunged. If asked a question relating to the expunged record, you need not answer.
To be eligible for an expungement, your charge had to be based on a crime contained in Title 18.2 of the Virginia Code. Further, you must have been acquitted, or the prosecution took a "nolle prosequi" or the charge was otherwise dismissed, including a dismissal by accord and satisfaction.
Expunging the police and court records require filing a petition explaining the salient facts. In addition to filing the petition with the Circuit Court, a petitioner must obtain a complete set of fingerprints from a law-enforcement agency and provide that agency with a copy of the petition for expungement. The law-enforcement agency then submits the fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition and the CCRE then forwards to the Circuit Court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, and the set of fingerprints. After the Circuit Court receives the information from CCRE, the court will conduct a hearing to determine if the continued existence of the charge on the petitioner's record and the dissemination of the information related to the charge causes or may cause a "manifest injustice" to the petitioner. Upon this finding, the Court will enter an order requiring the expungement of police and court records, including electronic records.
For anyone charged with a misdemeanor, and the petitioner has no prior criminal record, the petition is entitled to a an expungement unless the Commonwealth can show good cause as to why the charge should not be expunged. Should you be the unfortunate person arrested by the cops and then, a bit too late to save your reputation, the Court finds that you are not the person the cops should have arrested or charged, you are entitled to an expungement. The Court is required to enter an order expunging all police and court records if you receive an absolute pardon for the commission of a crime that you did not commit. Additionally, anyone receiving a writ vacating a conviction pursuant to § 19.2-327.5 or § 19.2-327.13, the court is required to enter an order expunging your record.
No one may have access to any expunged court or police record, nor may anyone disclose to another person information in regarding the expunged record without a court order. Moreover, no employer or educational institution can require an applicant for employment or admission to disclose information concerning any arrest or criminal charge against that has been expunged. If asked a question relating to the expunged record, you need not answer.
Reckless Driving...To Everyone Else, It's Just A Ticket
This is a question that comes from many non-Virginians. Reckless Driving in other states is treated as a mere traffic infraction...something that passes eventually and you are not permanently damaged by a finding of guilt.
In Virginia, reckless driving is Class One Misdemeanor Criminal Charge, punishable by up to 12 months in jail, up to a $2,500 fine, and a possible loss of your driving privilege for up to six months. You could be arrested and have your car impounded. Reckless Driving in Virginia is a serious matter that should not be treated as a routine traffic matter. You will leave with a criminal record when you leave the courthouse.
There are many definitions of reckless driving, from speeding to racing to passing an emergency vehicle.
Reckless driving is speeding 20+ over the speed limit. Va. Code 46.2-862. A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.
Driving in a manner generally endangering others. Va. Code 46.2-852. Reckless driving; general rule - Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.
Passing a stopped, properly equipped school bus. Va. Code 46.2-859. A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion. The driver of a vehicle, however, need not stop when approaching a school bus if the school bus is stopped on the other roadway of a divided highway, on an access road, or on a driveway when the other roadway, access road, or driveway is separated from the roadway on which he is driving by a physical barrier or an unpaved area. The driver of a vehicle also need not stop when approaching a school bus which is loading or discharging passengers from or onto property immediately adjacent to a school if the driver is directed by a law-enforcement officer or other duly authorized uniformed school crossing guard to pass the school bus. This section shall apply to school buses which are equipped with warning devices prescribed in 46.2-1090 and are painted yellow with the words "School Bus" in black letters at least eight inches high on the front and rear thereof. Only school buses which are painted yellow and equipped with the required lettering and warning devices shall be identified as school buses.
The testimony of the school bus driver, the supervisor of school buses or a law-enforcement officer that the vehicle was yellow, conspicuously marked as a school bus, and equipped with warning devices as prescribed in 46.2-1090 is prima facie evidence that the vehicle is a school bus.
Overtaking/passing an emergency vehicle. Va. Code 46.2-829. Upon the approach of any emergency vehicle as defined in 46.2-920 giving audible signal by siren, exhaust whistle, or air horn designed to give automatically intermittent signals, and displaying a flashing, blinking, or alternating emergency light or lights as provided in 46.2-1022 through 1024, the driver of every other vehicle shall, as quickly as traffic and other highway conditions permit, drive to the nearest edge of the roadway, clear of any intersection of highways, and stop and remain there, unless otherwise directed by a law-enforcement officer, until the emergency vehicle has passed. This provision shall not relieve the driver of any such vehicle to which the right-of-way is to be yielded of the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of such right-of-way.
Violation of this section shall constitute failure to yield the right-of-way; however, any violation of this section that involves overtaking or passing a moving emergency vehicle giving an audible signal and displaying activated warning lights as provided for in this section shall constitute reckless driving, punishable as provided in 46.2-868.
Racing. Va. Code 46.2-865. Racing; penalty - Any person who engages in a race between two or more motor vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. When any person is convicted of reckless driving under this section, in addition to any other penalties provided by law the driver's license of such person shall be suspended by the court for a period of not less than six months nor more than two years. In case of conviction the court shall order the surrender of the license to the court where it shall be disposed of in accordance with the provisions of 46.2-398. If you injure another, or cause the death of another while racing, you may be guilty of a felony for which you may be sentenced to the penitentiary for up to 20 year.
Improper brakes, or while vehicle not under proper control. Va. Code 46.2-853. Driving vehicle which is not under control; faulty brakes - A person shall be guilty of reckless driving who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth.
Driving to fast for traffic conditions. Va. Code 46.2-861. Driving too fast for highway and traffic conditions - A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.
Passing a vehicle at a crest or a grade. Va. Code 46.2-854. Passing on or at the crest of a grade or on a curve - A person shall be guilty of reckless driving who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver's view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway.
Overloaded vehicle such as to obstruct/interfere with drivers control. Va. Code 46.2-855. Driving with driver's view obstructed or control impaired - A person shall be guilty of reckless driving who drives a vehicle when it is so loaded, or when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver's control over the driving mechanism of the vehicle.
Passing another vehicle at a railroad grade crossing. Va. Code 46.2-858. Passing at a railroad grade crossing - A person shall be guilty of reckless driving who overtakes or passes any other vehicle proceeding in the same direction at any railroad grade crossing or at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone or on a designated one-way street or highway, or while pedestrians are passing or about to pass in front of either of such vehicles, unless permitted so to do by a traffic light or law-enforcement officer.
Failing to give proper signal. Va. Code 46.2-860. Failing to give proper signals - A person shall be guilty of reckless driving who fails to give adequate and timely signals of intention to turn, partly turn, slow down, or stop, as required by Article 6 (46.2-848 et seq.) of this chapter.
Failure to yield right-of-way when merging onto highway. Va. Code 46.2-863. Failure to yield right-of-way - A person shall be guilty of reckless driving who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a "Yield Right-of-Way" sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction.
Passing two vehicles abreast. Va. Code 46.2-856. Passing two vehicles abreast - A person shall be guilty of reckless driving who passes or attempts to pass two other vehicles abreast, moving in the same direction, except on highways having separate roadways of three or more lanes for each direction of travel, or on designated one-way streets or highways. This section shall not apply, however, to a motor vehicle passing two other vehicles when one or both of such other vehicles is a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped; nor shall this section apply to a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped passing two other vehicles.
Driving two abreast in a single lane. Va. Code 46.2-857. Driving two abreast in a single lane - A person shall be guilty of reckless driving who drives any motor vehicle, including any motorcycle, so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle, including any motorcycle, so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. However, this section shall not apply to any validly authorized parade, motorcade, or motorcycle escort, nor shall it apply to a motor vehicle traveling in the same lane of traffic as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped.
In Virginia, reckless driving is Class One Misdemeanor Criminal Charge, punishable by up to 12 months in jail, up to a $2,500 fine, and a possible loss of your driving privilege for up to six months. You could be arrested and have your car impounded. Reckless Driving in Virginia is a serious matter that should not be treated as a routine traffic matter. You will leave with a criminal record when you leave the courthouse.
There are many definitions of reckless driving, from speeding to racing to passing an emergency vehicle.
Reckless driving is speeding 20+ over the speed limit. Va. Code 46.2-862. A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.
Driving in a manner generally endangering others. Va. Code 46.2-852. Reckless driving; general rule - Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.
Passing a stopped, properly equipped school bus. Va. Code 46.2-859. A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion. The driver of a vehicle, however, need not stop when approaching a school bus if the school bus is stopped on the other roadway of a divided highway, on an access road, or on a driveway when the other roadway, access road, or driveway is separated from the roadway on which he is driving by a physical barrier or an unpaved area. The driver of a vehicle also need not stop when approaching a school bus which is loading or discharging passengers from or onto property immediately adjacent to a school if the driver is directed by a law-enforcement officer or other duly authorized uniformed school crossing guard to pass the school bus. This section shall apply to school buses which are equipped with warning devices prescribed in 46.2-1090 and are painted yellow with the words "School Bus" in black letters at least eight inches high on the front and rear thereof. Only school buses which are painted yellow and equipped with the required lettering and warning devices shall be identified as school buses.
The testimony of the school bus driver, the supervisor of school buses or a law-enforcement officer that the vehicle was yellow, conspicuously marked as a school bus, and equipped with warning devices as prescribed in 46.2-1090 is prima facie evidence that the vehicle is a school bus.
Overtaking/passing an emergency vehicle. Va. Code 46.2-829. Upon the approach of any emergency vehicle as defined in 46.2-920 giving audible signal by siren, exhaust whistle, or air horn designed to give automatically intermittent signals, and displaying a flashing, blinking, or alternating emergency light or lights as provided in 46.2-1022 through 1024, the driver of every other vehicle shall, as quickly as traffic and other highway conditions permit, drive to the nearest edge of the roadway, clear of any intersection of highways, and stop and remain there, unless otherwise directed by a law-enforcement officer, until the emergency vehicle has passed. This provision shall not relieve the driver of any such vehicle to which the right-of-way is to be yielded of the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of such right-of-way.
Violation of this section shall constitute failure to yield the right-of-way; however, any violation of this section that involves overtaking or passing a moving emergency vehicle giving an audible signal and displaying activated warning lights as provided for in this section shall constitute reckless driving, punishable as provided in 46.2-868.
Racing. Va. Code 46.2-865. Racing; penalty - Any person who engages in a race between two or more motor vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. When any person is convicted of reckless driving under this section, in addition to any other penalties provided by law the driver's license of such person shall be suspended by the court for a period of not less than six months nor more than two years. In case of conviction the court shall order the surrender of the license to the court where it shall be disposed of in accordance with the provisions of 46.2-398. If you injure another, or cause the death of another while racing, you may be guilty of a felony for which you may be sentenced to the penitentiary for up to 20 year.
Improper brakes, or while vehicle not under proper control. Va. Code 46.2-853. Driving vehicle which is not under control; faulty brakes - A person shall be guilty of reckless driving who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth.
Driving to fast for traffic conditions. Va. Code 46.2-861. Driving too fast for highway and traffic conditions - A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.
Passing a vehicle at a crest or a grade. Va. Code 46.2-854. Passing on or at the crest of a grade or on a curve - A person shall be guilty of reckless driving who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver's view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway.
Overloaded vehicle such as to obstruct/interfere with drivers control. Va. Code 46.2-855. Driving with driver's view obstructed or control impaired - A person shall be guilty of reckless driving who drives a vehicle when it is so loaded, or when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver's control over the driving mechanism of the vehicle.
Passing another vehicle at a railroad grade crossing. Va. Code 46.2-858. Passing at a railroad grade crossing - A person shall be guilty of reckless driving who overtakes or passes any other vehicle proceeding in the same direction at any railroad grade crossing or at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone or on a designated one-way street or highway, or while pedestrians are passing or about to pass in front of either of such vehicles, unless permitted so to do by a traffic light or law-enforcement officer.
Failing to give proper signal. Va. Code 46.2-860. Failing to give proper signals - A person shall be guilty of reckless driving who fails to give adequate and timely signals of intention to turn, partly turn, slow down, or stop, as required by Article 6 (46.2-848 et seq.) of this chapter.
Failure to yield right-of-way when merging onto highway. Va. Code 46.2-863. Failure to yield right-of-way - A person shall be guilty of reckless driving who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a "Yield Right-of-Way" sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction.
Passing two vehicles abreast. Va. Code 46.2-856. Passing two vehicles abreast - A person shall be guilty of reckless driving who passes or attempts to pass two other vehicles abreast, moving in the same direction, except on highways having separate roadways of three or more lanes for each direction of travel, or on designated one-way streets or highways. This section shall not apply, however, to a motor vehicle passing two other vehicles when one or both of such other vehicles is a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped; nor shall this section apply to a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped passing two other vehicles.
Driving two abreast in a single lane. Va. Code 46.2-857. Driving two abreast in a single lane - A person shall be guilty of reckless driving who drives any motor vehicle, including any motorcycle, so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle, including any motorcycle, so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. However, this section shall not apply to any validly authorized parade, motorcade, or motorcycle escort, nor shall it apply to a motor vehicle traveling in the same lane of traffic as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped.
Prostitution Sting in Richmond
There were 22 women and 9 men arrested on Wednesday and Thursday. The women, for prostitution and the men for solicitation of prostitution. Either of these crimes is a misdemeanor for which an accused could be sent to jail. In addition, there may be a fine as well as blood testing.
Sunday, April 18, 2010
Medical Marijuana Use Won't Save Your Job
In Oregon, medical marijuana is allowed under state law. However, if you use medical marijuana and follow all the rules under state law, Oregon's medical marijuana laws must cave to federal law. One of Oregon's esteemed justices, however, understands well that "in our system of dual sovereigns, Oregon must fly only in federal formation...I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own independent decisions about what conduct to criminalize. With respect, I dissent."
Saturday, April 17, 2010
Easements
I love real estate. It's old. It's predictable. It's civilized. And, you use phrases that would be recognized by those living during the Norman Invasion.
Easements are a particularly vexing problem for both the owners of property that have easements passing over them and those that hold the right to use the property of another person. Recently, the holder of the dominant estate got his wings clipped by the Virginia Supreme Court when they were told to remove the obstructions from the easement.
Prescriptive Easements also got some time from the Court. "To establish a prescriptive easement, the claimant must prove that use of the servient estate was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the servient estate." With this in mind, the Court deemed an underground sewer line does not give life to a prescriptive easement.
Easements are a particularly vexing problem for both the owners of property that have easements passing over them and those that hold the right to use the property of another person. Recently, the holder of the dominant estate got his wings clipped by the Virginia Supreme Court when they were told to remove the obstructions from the easement.
Prescriptive Easements also got some time from the Court. "To establish a prescriptive easement, the claimant must prove that use of the servient estate was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the servient estate." With this in mind, the Court deemed an underground sewer line does not give life to a prescriptive easement.
Expungements in Virginia
The record of your arrest can remain and can cause problems when you are applying for a job, looking for an apartment and in other ways. Even when you are not convicted or the prosecution is dropped, your arrest will be part of your criminal history until you act to remove it. With the assistance of an experienced and knowledgeable lawyer, you can have all record of the arrest sealed. In effect, your arrest record is wiped out.
Increasingly, employers, landlords and others are asking for background checks and denying jobs and housing to people with any type of criminal record. In certain jobs, such as working at a bank or as a contractor, or where you need to be bonded, a criminal record can keep you from getting a job.
Generally, as long as you have not been convicted, a criminal charge or arrest, both misdemeanor and felony, can be expunged. While misdemeanors are easier to expunge than felonies, I can help you take all the necessary action to remove either type of criminal charge from your permanent record. When you successfully expunge criminal charges, you are not required to disclose that you were arrested. For the most part, it will be as if the arrest or charge never happened. Only a court can allow access to a sealed and expunged criminal record.
Visit my website for more information.
Increasingly, employers, landlords and others are asking for background checks and denying jobs and housing to people with any type of criminal record. In certain jobs, such as working at a bank or as a contractor, or where you need to be bonded, a criminal record can keep you from getting a job.
Generally, as long as you have not been convicted, a criminal charge or arrest, both misdemeanor and felony, can be expunged. While misdemeanors are easier to expunge than felonies, I can help you take all the necessary action to remove either type of criminal charge from your permanent record. When you successfully expunge criminal charges, you are not required to disclose that you were arrested. For the most part, it will be as if the arrest or charge never happened. Only a court can allow access to a sealed and expunged criminal record.
Visit my website for more information.
Martinsville Will Continue To Have Criminal Trials
It looks like the prosecutors in Martinsville will continue to function. http://www.martinsvillebulletin.com/article.cfm?ID=23290
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