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Questions that are Frequently Asked to Furlong &
Drewniak (FAQ's)
Got a
question, your answer could very well be here. If
not call us at
1-800-800-4351 |
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Do I
need a lawyer?
Yes, if you want to have a legally trained professional
review your case for violations of law by the police,
look for defenses that could avoid certain punishments,
and obtain a skilled negotiator to discuss your case and
possibly obtain a deal that lessens the punishment or
get’s you out of trouble (no guarantees, but this is
what skilled lawyers work for). If you want a trial, a
defense lawyer argues your side, cross-examines
witnesses and works to score legal points and block
illegally obtained evidence or testimony that violates
evidence rules. If you are poor and facing jail time,
then the court may appoint free lawyer to protect your
rights because having a lawyer is such an important
safeguard. Lawyers are “navigators” of the court system,
know the procedures and law that applies to your case,
and can advise you on what to say and what NOT to say.
They can also negotiate on your behalf with the
prosecutor to maybe obtain a reduced sentence or reduced
charges through a plea bargain. Most importantly,
lawyers work to protect your legal interests in
advocating (arguing/speaking) for you against the
prosecutor ( a lawyer for the state) or the police
officer (trained in criminal law). Not having a lawyer
means you may not know thaw evidentiary procedures for
getting important evidence into court to help you, or
prevent it from coming in to hurt you. It would be very
frustrating to believe you are innocent and then not be
allowed to argue your evidence because you didn’t know
the proper way to get it into the record.
If you cannot afford to hire an experienced private
attorney and you are facing potential jail time, the
court may appoint eh Public Defender or a
court-appointed lawyer to represent you. The more
experience your lawyer has in criminal defense matters
and the more your lawyers knows about the scientific
tests, police procedures, search and seizure, evidence
law, rules of court and policies of the particular judge
and prosecutor, the more likely your lawyer will be able
to provide you premium counsel to maximize your legal
protections. Often young or new lawyers learn criminal
defense by taking court-appointed cases, and finding out
what does and doesn’t work. Virginia pays
court-appointed lawyers some of the lowest fees in the
country. Some experienced lawyers take a few court
appointed cases as a public service.
IMPORTANT: Do you want lawyers who teach other lawyers
how to do this? (We teach lawyer CLE classes in
evidence, trial practice, criminal law, etc.) Do you
want lawyers that teach the police and college classes
in criminal law? Do you want lawyers who teach federal
agents at the FBI Academy? Do you want lawyers who focus
their practice on DUI, traffic, and criminal law? Do you
want the same lawyers hired by Congressional staffers,
White House personnel, police officers and CEOs? If so,
then call us day or night
1-800-800-4351 for a free and
confidential attorney consultation.
Worried? Have urgent questions?
Call our Legal Hotline
1-800-800-4351 (day or night). All attorney conversations
are strictly confidential.
In any event, the more experience your lawyer has in
criminal defense cases like yours, the more likely they
will be able to provide you directly relevant advice,
including knowing the unwritten policies and preferences
of certain judges and prosecutors. For example, in some
VA counties you do NOT want to go to traffic school
ahead of time, and instead let the judge send you. In
others, the more you do in advance the better the court
likes it. So it’s best to obtain an experienced criminal
defense attorney who knows the court’s preferences and
can properly advise you on what to do and what NOT to do
in a particular case and before a particular judge. Some
lawyers focus their practice in criminal defense areas
like we do, and some try and handle cases in many
practice areas.
Our attorneys have over 50 years of combined criminal
trial practice are former police or prosecutors, and
have handled thousands of cases. We are not cheap, but
then it’s your life and you may only get one shot at
getting a good outcome at a particular court level.
Should I represent myself?
A famous quote is that a person who represents himself
“has a fool for a lawyer,” because you are too close to
the problem and may not be able to think objectively.
Having a lawyer represent you in a criminal case is such
an important legal right that the courts will provide
you with a free one in cases involving potential jail
time if you cannot afford one,. Not using a lawyer may
expose you to accidental harm if you say or do something
that makes your problem worse, from a legal perspective.
If you are not trained in the rules of evidence and
court procedure, you may be blocked from getting your
full story or evidence before the court—this is because
there are a number of rules about what can be brought
in, what can be argued to the judge, and how the police
evidence and testimony can be challenged. Unless you
know these court procedures and evidentiary rules then
you are at a great disadvantage, such as not
understanding how radar works, how drunk driving field
sobriety tests are done, or how a drug dog is trained,
or what the police can and cannot say about you in
court. Sometimes you may already hurt your case by
talking to the police and having a lawyer may help you
suppress or keep certain bad evidence against you out,
or prevent the police from using information they
illegally obtained. An experienced, competent criminal
defense lawyer would likely be able to advise you on the
strength of the government’s case against you, what
defenses you may have, how to block bad evidence against
you, how to get helpful evidence before the court and
what negotiation strategies may work best to reduce or
possibly drop the charges against you. A competent
defense lawyer may advise you on immigration
consequences and other legal matters that may be related
to your criminal charges.
While you have a legal right to represent yourself, you
usually stand a much better chance of having your
arguments, story and evidence entered (considered by the
court) with a lawyer than without. However, if your risk
is small (no jail or no significant penalty) then your
cost-benefit analysis may lean toward not retaining
counsel (although we advise against going to court
without a lawyer).If you cannot afford a lawyer in a
case involving potential jail time, then the court may
appoint you a free lawyer if you meet certain financial
requirements. Think of law like medicine—if you’re sick,
going to a doctor is always your best bet, but if the
risk is small you might try healing yourself.
If you want to have your day in court and present the
very best argument you can make, then hire the very best
lawyer you can afford. An experienced criminal defense
lawyer may cost more, and likely will, than an
inexperienced one. You may not be able to afford a
so-called Dream Team like O.J. Simpson had to fight a
celebrity murder charge, but it’s your life and you may
only get one chance at a particular court level. If
you’re facing potential jail or prison, or have a
serious traffic charge like a DUI and there may be
security clearance issues at stake or employment
repercussions, then you may want a lawyer to consider
all possible defenses and to consider how best to fight
the charges and what evidence may or may not be used in
court.
What is it worth to you to hire the very best lawyer you
can afford? The answer varies with each person. If you
are poor and meet certain financial requirements, the
judge may appoint you a free lawyer from the Public
Defender’s Office or assign court-appointed counsel to
represent you. Court appointed lawyers sign up with the
court to take cases where the client’s cannot afford to
hire their own counsel. Many new lawyers just starting
out take court appointed cases to learn on. Some
experienced lawyers take court appointed cases as a
public service, as the pay is usually very low compared
to privately hired attorneys (“retained counsel”) and
Virginia pays court appointed lawyers less than most
states.
Should I talk to the police?
Some defendants ask the arresting police officer, “Do I
need a lawyer?” Now, do you really think the police
officer wants you to hire an aggressive attorney to
fight the charges? Probably not. The police may reply,
“Why? Only guilty people need lawyers.” WRONG! Smart
people always seek legal counsel before they act, or
when they are in trouble because they don’t want to make
a bad situation worse, and a good lawyer usually helps
prevent more damage—or avoid you talking to the police
and potentially hurting your case. Most good criminal
defense lawyers will tell you DO NOT talk to the police
or give statements, written or otherwise, when the
police suspect you of a crime. This is excellent advice,
since talking to the police means they can usually use
anything you say against you.
IMPORTANT: You do NOT have to answer any questions
without a lawyer present.
This concept is the reason the police are required to
give a suspect Miranda warnings, which tell you that you
do NOT have to speak to them without a lawyer present.
The U.S. Supreme Court ordered the police to tell you
these rights because the high court found that the
police were abusing people in bullying confessions out
of suspects and most people had no idea they could
simply refuse to talk and do not have to cooperate with
police interrogations/interviews. It is usually best not
to give any oral or written statements when the police
suspect you of a crime or if you may be implicated or
involved in a crime. Since you are not a lawyer and do
not know what may or may not be good to say, the safest
and best action is to ask for a lawyer and not to
discuss the matter with the police or anyone connected
to the police. It is ALWAYS best to have your lawyer
present before speaking to the police. The first Miranda
rule is the right to remain silent—USE IT. Even innocent
people can say the wrong things that can get them in
trouble.
Will not talking to the police get me in trouble?
It may irritate or frustrate the police, or make them
angry, but a true professional officer understand the
U.S. Constitution provides you these safeguards and the
police take an oath to “uphold and defend” all these
legal rights. Upsetting an unprofessional police officer
who gets angry because you are exercising your legal
right to have a lawyer present before and during any
questioning is a small price to pay for preventing
serious legal trouble for you later on.
Can I be arrested if I don’t talk to the police?
You can be arrested any time the officer believes he has
probable cause that you committed a crime. If you refuse
to talk, the police may get mad an arrest you earlier
than they planned, but just refusing to talk to them is
NOT legal grounds for an arrest, regardless of what the
officer may say in anger. Some officers may approach you
and say, “If you don’t cooperate and talk, then I’ll
arrest you and we can talk at the police station.” This
is an unlawful threat, since refusing to talk is NOT
grounds for arrest. The officer may have sufficient
evidence of a crime to arrest you, but would like more
evidence by getting you to make incriminating statements
against your legal interests. You lose legal ground by
talking and cooperating with the police without a lawyer
present when the police suspect you of a crime, so don’t
do it.
IMPORTANT: It’s not a guilty thing to request a lawyer;
it’s your legally protected U.S. Constitutional right.
Call our Legal Hotline 703-967-3655 day or night for a
confidential discussion of your case.
If the police arrest you because you refused to
cooperate and talk to them, then later in court you may
win your case on a lack of evidence. If you later win
the case in court for lack of evidence then that
certainly is worth not answering police questions out on
the street. Yes, you may make the officer angry, but
it’s your legal right NOT to answer questions (Miranda
rights) and the officer took an oath to protect your
legal rights under the U.S. Constitution so he should
actually be protecting you from other police trying to
question you. Stand up for yourself and exercise the
rights and protections the U.S. Constitution gives you
and the police are supposed to be providing you. It is
often best NOT to talk to the police or give any
statements (phone, in person, at the scene, at the
station, to others) about the case or a crime unless
your lawyer is present. We recommend you tell the police
you are willing to discuss the case, but only if your
lawyer is present. It may be an inconvenience for the
police to wait until your lawyer comes there, but it is
an important legal safeguard to have your lawyer
involved early in the case.
Should I answer police questions?
(see above) The police are seeking answers to use as
evidence and gain information to solve crimes. If you
talk you may make things WORSE for yourself and HURT
your legal position—even if you are innocent. This is
because you may not know the best things to say, and you
may say things that may be used against you later in
court or against your friends. Further, the police may
exaggerate things to make it sound worse for you if you
don’t cooperate—do not be bullied or intimidated into
giving away information. We, as a society, allow the
police to say things to suspects to obtain
confessions—even if the things the police say are false
(think undercover, or “your buddy is confessing right
now”, or “we have you on video”, etc. We want the police
to catch criminals so we allow them certain liberties
with the truth. We train them in how to get people to
talk using interrogation techniques. Here are some
examples:
POLICE INTERROGATION EXAMPLES
(Here are sample questions the police may use to obtain
your statement. Simply decline to talk and ask to speak
to a lawyer.)
“People are saying you did this. I just want your
story.”
“I am looking for the truth. I just want you to tell me
what happened.”
“Look, I believe you but my partner wants to arrest you.
Help me convince him you didn’t do it. Where were you?
What happened? Tell me now before he does something you
won’t like.”
“Look, I know it was really your friend and not you who
did the robbery. So help me convince my sergeant of that
and we can move on. Don’t you want to go home?”
“Lawyer? Listen, if you ask for a lawyer then I have to
stop talking to you and then I can’t help you anymore.
Now, you want my help right? So what happened?”
“I can call your parents and have them come down and get
you just as soon as we wrap up some loose ends. Where
did you get the drugs? I know you were not selling, but
if you don’t come clean with me I’ll have to go hard on
this—something nobody wants to happen.”
“I see you’re college educated. Good. So you know we
have a job to do and you can help us get it done. What
did you have to drink? Where are you coming from? When
was your last drink?”
“If you’ll just take these few tests and answer a few
questions then we can resolve this.“
“You’re free to leave any time, but if you do, then I
can’t help you, The only way I can help you is if you
tell me straight. What really happened at the party? “
“You don’t have to talk to me, that’s your right. But
then, I don’t have to help you, either. Now, to get my
help means you have to be fair with me. If you lie to me
then I can’t help you. So let’s be fair with each other.
Where did the motorcycle parts come from? The
marijuana?”
“I’m going to be honest with you. Your friend is in the
next room saying it was all you. I don’t believe that,
but the other detective is his statement and you’re
running out of time to clear your name. Tell me now what
happened or your friend gets the good deal and you go
down.”
“We have video of you. We have witnesses. I’m giving you
this one chance to tell me what really happened or I go
out that door and you’ve lost your chance to cooperate.
You have 10 seconds…..One, two…”
“I heard what you said to the uniformed officers who
arrived on the scene. You know that giving false
information to the police is s separate crime, right? So
I’m going to give you another chance. Tell me what
really happened and I’ll overlook that crap you said
before.”
“We don’t give immunity. If you have information of
value it works like this. First you give us what you
know, and then we decide if it’s worthy of our putting
in a good word for you with the prosecutor. If you don’t
tell us, then you’re not cooperating and we’ll tell the
prosecutor that too.”
“Do you need a lawyer? What for? Is there something
you’re trying to hide? If you want a lawyer we’ll get
you one, but then this interview is over and we can’t
help you anymore. It’s now or never to cooperate. Guilty
people need lawyers. I need to know if you’re not going
to cooperate or not. So, you still want a lawyer or are
you going to cooperate?”
What kind of people ask for lawyers?
Smart people, innocent people, guilty people, confused
people, worried people, lawyers, plumbers, construction
workers, police officers, politicians, nurses, students,
parents, teenagers, accountants, defense contractors,
military personnel, kindergarten teachers, school bus
drivers, executives, movie stars, professional athletes,
firemen, realtors, college students, ship captains,
truck drivers, grandmothers, and even guilty as all
get-out people wait and ask for a lawyer. Why? Because
they all believe in the U.S. Constitution and enjoy its
protections and liberties. They all want the best advice
possible and do NOT want to say something that could be
misunderstood or used against them or others.. They are
smart enough to know not to make a bad situation worse.
Should I try and talk my way of it with the police?
It is usually legally better to say nothing and ask for
a lawyer than start explaining and risk getting into
more trouble. Therefore, we recommend that you ask for a
lawyer and do not try and talk your way out of it with
the police. Lying to the police or a federal agent or
filing a false police report is a crime that you don’t
want, so by avoiding any discussion you prevent making a
mistake and possibly being charged later if your story
changes or the facts come out different. Why take that
risk when you don’t have to? IF you’re innocent, you are
still innocent later and if you are in trouble, wait and
discuss it with a trained legal professional working on
your side. We recommend that you show the police that
you believe in the U.S.Constitution and the liberty and
justice it provides and thus want to discuss your
situation with a lawyer before talking to them.. They
should understand that , as they took an oath to support
and defend the U.S. Constitution. If the police get
angry at your decision to support the Constitution, then
they don’t understand their role or that important
document they promised to defend and protect.
What is a felony or misdemeanor?
Crimes in Virginia are classified by their punishments.
Violations punished by up to 12 months in jail are
misdemeanors, with Class 1 (up to 12 months) applying
to simple assault, DUI-1st, petty theft, and other common
crimes. Class 2 misdemeanors carry a potential jail
sentence of up to 6 months, and classes 3 and 4
misdemeanors are punished by fines and no jail
time. There are six felony classes; with Class 1 being
the most severe and can include death in some cases, and
Class 6 being the lowest, usually 1 to 5 years in the
penitentiary (state prison). See Virginia Code §§18.2-9
through 18.2-11 for classification information.
IMPORTANT: Conviction of certain crimes can affect
immigration, security status, child custody and more.
Does your lawyer understand your situation and how these
things could affect you? If not, call us for straight
answers, day or night, at
1-800-800-4351 for free
confidential discussion of your situation.
Can I go to jail for speeding?
Yes, if your speeding is classified in Virginia state or
federal court as reckless driving, such as more than 20
mph over the posted speed limit or driving over 80 mph
and other violations. In federal court, speeding and
reckless are frequently charged together and each
carries potentially serious penalties. Federal cases,
like driving fast on the GW Parkway, or crimes committed
on federal land (forts, bases, CIA, Pentagon) involve a
blend of federal and state law, which requires a
federally trained lawyer since the rules of evidence and
procedure may be different.
IMPORTANT: Does you lawyer practice regularly in
Alexandria federal court? Do they know what to ask for
and what NOT to ask for before the federal magistrate
judges there? Do they know that you may not be going to
jail on your trial date, even if you lose? Do they know
the different procedure and evidence rules that apply
federal court versus Virginia state courts? DO they know
the Pentagon, CIA, and military prosecutors in
Alexandria by name? We do. We practice in federal court
frequently... Call us at
1-800-800-4351 or a confidential
discussion of your federal case, including drug testing,
probation options and more.
Virginia reckless driving is as Class 1 misdemeanor that
includes driving too fast for conditions, speeding 80
mph and up, and there is even a charge for “aggressive
driving” that may affect your security clearance or
result in jail time, license suspension and/or thousands
of dollars in fines. Reckless Driving in VA is the same
level of crime as assault, DUI, breaking and entering,
petty theft, and marijuana possession. Some judges
impose a day in jail for every mile per hour over 90
mph. Some order 2 days in jail and others sentence you
to six months with a number of days suspended if you are
of good behavior. Some judges use a pre-filled out info
sheet about the case, and others look to the officer for
guidance on how to sentence. Misdemeanor sentences may
vary by who your judge is.
IMPORTANT:
Does your lawyer know the procedures for your
particular court or judge? Does your lawyer know what
may or may not help you in that particular court to
avoid the maximum penalty? Has your lawyer handled many
cases like yours in that court before? Does your lawyer
know if your DUI case exposes you to mandatory jail
time?
Does VA sentence harshly?
Compared to other states, Virginia may be termed a
southern "law and order” state with strict laws and
serious penalties, which is why you need the most
experienced and knowledgeable lawyer you can afford. For
example, simple speeding over 80 mph could, potentially,
be punished by up to a year in jail and is the same
criminal classification as drunk driving. In federal
court, a license suspension is nationwide, meaning
military personnel or government workers could have
their driving privileges restricted or revoked anywhere
in U.S. territory.
IMPORTANT: Virginia is a southern “law and order” state
that tends to award harsh penalties generally not found
in other states. What may be a simple speeding ticket in
New Jersey can result in a jail sentence here.
Do I want a jury trial?
On television, most defendants want a jury so they can
tell their side to a sympathetic audience. In Virginia,
we are a politically conservative state (we abolished
parole) where juries have historically sentenced
defendants harshly. Usually, it is the prosecutor who
asks for a jury trial here, not the defense, since the
prosecutor knows how tough VA juries are on criminal
defendants.
We have two levels of courts in VA.Traffic and DUI cases
start and usually end in General District Court where VA
denies you your U.S. Constitutional right to jury trial
in a criminal case. Because VA denies you this important
right, you may automatically appeal your case within 10
days to the next higher court (Circuit Court) for a new
trial (known as a trial de novo). You may be found
guilty or not guilty in the higher court, and this may
or may not result in a harsher penalty than previous
awarded. Plus, if you lose in the higher court you may
have to pay the court costs for the lower court and the
costs of the second court, plus fines and costs,
including jury costs if you lose with a jury. The result
could add hundreds of dollars to your initial result and
therefore you need to carefully consult with an
experienced criminal defense attorney to decide if
appealing is in your best legal interests and what to
expect “upstairs” in Circuit Court if you do.
IMPORTANT: We handle appeals for other lawyers who are
not familiar with jury trials and negotiating in Circuit
Court. Does your lawyer do jury trial on a regular
basis? Is your lawyer familiar with the court procedures
for a jury trial in your jurisdiction (rules can vary)?
Did your lawyer explain the differences between General
District and Circuit Court procedures, rules, and
penalty outcomes? Has your lawyer handled many jury
trials with your type of case before?
Also, in VA if you lose a jury trial it is that jury,
not the judge, that sentences you—often after a short
few minute break. In other states a judge usually
sentences you after a jury finds you guilty—but not
Virginia. This important change means that the same
people who may have thought you were lying or awful, now
will sentence you without knowing much about you. If you
have a judge trial and lose, the judge can order a
pre-sentence evaluation of you and have the benefit of
VA Sentencing Guidelines to review about what other
judges did in similar cases. So deciding the pros and
cons of jury versus non-jury is an important decision
and you want an experienced criminal defense lawyer to
consult with before making your choice.
IMPORTANT: Many VA defense lawyers recommend against a
jury trial to avoid potentially harsh sentences. VA
juries do not have the benefit of a background report on
the defendant or know VA Sentencing Guidelines. A judge
trial that results in conviction would have these
defendant benefits at sentencing. Did your lawyer run
the sentencing guidelines for your charge? Do you
understand what they mean?
VIRGINIA PENALTIES
(Subject to change by the VA
legislature)
|
PRISON |
JAIL |
FINE (Maximum) |
|
Class 1 Felony |
Death/Life |
N/A |
$100,000 |
|
Class 2 Felony |
20 Yrs. to Life |
N/A |
$100,000 |
|
Class 3 Felony |
5 to 20 Yrs. |
N/A |
$100,000 |
|
Class 4 Felony |
2 to 10 Yrs. |
N/A |
$100,000 |
|
Class 5 Felony |
1 to 10 Yrs. |
Max 12 Mos. |
$2,500 |
|
Class 6 Felony |
1 to 5 Yrs. |
Max 12 Mos. |
$2,500 |
|
Class 1 Misdemeanor |
N/A |
Max 12 Mos. |
$2,500 |
|
Class 2 Misdemeanor |
N/A |
Max 6 Mos. |
$1,000 |
|
Class 3 Misdemeanor |
N/A |
N/A |
$500 |
|
Class 4 Misdemeanor |
N/A |
N/A |
$250 |
VA Criminal Court System
VA has three trial courts involved in traffic and
criminal cases: Juvenile court (JDR), General District
Court (GDC), and Circuit Court (CC). Trials for crimes
involving minors and parties in a romantic relationship
are usually are held in JDR. Most traffic and misdemeanor
criminal trials are in GDC, which the losing Defendant
can appeal to CC if unhappy with the result.
Traffic, DUI and criminal misdemeanors may be directly
appealed to the higher (CC) court if the Defendant
notifies the clerk of the court in writing within 10
calendar days from conviction date.
Felony cases have their arraignments (reading of
charges, lawyer appointments) and Preliminary Hearings
(should the police have arrested you) in General
District Court, then move up to Circuit Court if the case
is “certified” by the GDC judge upon finding sufficient
evidence for the officer to have arrested you. One
strategy employed by experienced criminal defense
lawyers is to try and negotiate a reduction in the
charge from a felony down to a misdemeanor on the
Preliminary Hearing date to avoid the client having a
felony conviction.
IMPORTANT:
Does your lawyer understand the strategy and what that
prosecutor’s policy is on negotiations (some want jail
in return for a change from felony to misdemeanor)?Is
your lawyer ready for sentencing in GDC if you strike a
deal reducing your charge on the Prelim date? Does your
lawyer know what the elements are that the police must
show on the Prelim date? Did your lawyer consult with
you over whether to record the proceedings with a court
reporter? We understand the importance of a Prelim date.
Call us at
1-800-800-4351 and discuss your options with
one of our experienced attorneys.
In summary, traffic infractions and misdemeanors have
their trials at the GDC level, and for felonies, if the
GDC judge finds that the police had “probable cause” to
arrest you then the felony case moves up to Circuit
Court for Grand Jury day (term day), arraignment, and
trial or plea dates.
How do you appeal a bad decision in General
District Court?
For traffic and misdemeanor cases, if the defendant
desires to dispute the guilty verdict, the defendant or
defense counsel may go to the GDC clerk (within 10
calendar days of conviction) and request an appeal in
writing to Circuit Court—where a brand new trial occurs.
Juries are only available to VA defendants at the
Circuit Court level. There are potential costs, more
risks and maybe benefits involved in the deciding
whether to appeal a GDC guilty verdict or not. You could
end up costing yourself more money, get more jail time
and potentially pay a lot more for the appeal than
staying with the GDC result. An experienced criminal
defense attorney who understands that particular court
system and county may be able to advise you on whether
to appeal or live with it. Sometimes appealing exposes
you to a potentially worse outcome, so get your
questions answered BEFORE making this important
decision. There is a time deadline for appeals.
IMPORTANT:
Appeals from traffic, DUI, and misdemeanor criminal
cases MUST be filed in GDC within 10 calendar days from
your conviction. Does your attorney know how to do this?
Has your attorney informed you of the costs and benefits
of appealing from General District Court? The
immigration consequences that may apply?
Why does VA allow two trials (GDC and
Circuit Courts) for traffic and misdemeanor cases?
Because Virginia denies you your U.S. Constitutional
right to a jury trial in General District Court you have
the legal right to have a jury hear your case. As a
matter of policy and to conserve resources, VA found
that most people will not want the expense and delay of
a jury trial for minor offenses, so to expedite these
cases through the court system there are two layers of
courts—General District for fast, simple judge trials,
and Circuit Court more involved, slower and potential
jury trials. Felonies are serious so they are on track
for Circuit Court, but have a hearing or two in the
lower GDC before proceeding up to Circuit Court. This
also reduces the need to inconvenience lots of jurors by
having them hang around for minor traffic and
misdemeanor cases. However, each defendant has an
absolute right to appeal a GDC conviction to the county
or city Circuit Court. This automatic appeal is called a
“trial de novo”, and a brand new trial is held with the
same or different witnesses. Whether to appeal or not is
a critical decision, as you could get a worse outcome in
Circuit Court. Therefore, consult with an experienced
criminal defense lawyer before making your decision to
appeal.
IMPORTANT:
You
only have 10 calendar days
from conviction to note your GDC appeal with the clerk.
If thinking of appealing, did your lawyer have a court
reporter transcribe your first trial? Was use of a court
reporter even discussed with you? DO you know the risks
involved in appealing? Call us for answers at
1-800-800-4351 for a
confidential discussion of your situation.
What’s an arraignment?
In Virginia, your first court appearance in certain
misdemeanor and felony cases is usually an arraignment
(unless you had a bond hearing)—or reading of the charge
and a decision by the judge on whether you qualify for
court appointed counsel, are representing yourself, or
wish to hire your own lawyer. If you say you want your
own lawyer the judge may warn you that appearing at
trial or future hearings without a lawyer is your fault
and the court may proceed anyway. VA uses financial
guidelines to determine if you qualify for court
appointed counsel, and you are NOT entitled to a court
appointed lawyer unless you are facing potential jail
time. If the prosecutor or court waives jail time, then
you could still face a criminal or traffic charge but
without the worry of jail, which means you do not have
the benefit of a free court appointed lawyer. Of course,
you are always allowed to hire your own private attorney
if you can afford one.
Unlike television, the movies, or even other states,
Virginia does NOT require a defendant to plead guilty or
not guilty at their General District Court arraignment
(Circuit Court may be different)... Instead, the purpose
in GDC is to inform the accused of the charges, choose
the next court date, and inquire if the defendant wants
court appointed legal help or can afford their own
lawyer. If the accused has retained personal counsel
then your attorneys may appear with you and select a
court date convenient for all parties. The attorney
alerts the court that you have a lawyer by filing a
Notice of Appearance (NOA). If the defendant is free on
bond, then absent any new allegations of bad behavior
the court usually allows that bond to continue. However,
you should know that the court can decide to revoke your
bond any time you come to court prior to trial, so never
take your freedom for granted. Some courts, like
Stafford County, usually revoke bond if you plead guilty
to a felony or a lower charge with mandatory jail time
(like some DUI cases) and even drug possession), so make
sure your lawyer is familiar with the court you’re going
to.
IMPORTANT:
The earlier you retain a lawyer, the earlier that lawyer
can start helping you protect your legal rights. Our
firm returns calls day or night, weekends and holidays,
at
1-800-800-4351. We know you want
help NOW. All discussions are strictly confidential.
When can the police arrest me?
The police can arrest you if they have a warrant or if
they have sufficient evidence that you committed a crime
(“probable cause”). VA law restricts the police to what
types of cases they can arrest you for without a
warrant. Consulting an experienced criminal defense
attorney about the exact facts leading up to your
criminal arrest or DUI charge is important, as we have
won cases where the police arrested our client too early
or before they had sufficient evidence. This is a blurry
line and our experience comes into play in helping you
understand which courts favor certain evidence. Not all
VA courts handle close cases about arrest procedures the
same way. What one judge looks for may be different than
another judge, so getting all the information early when
it’s fresh in your mind is important to our defense
preparation.
NOTE:
Warrants have time limits on them and must be served
within a specified time. Federal criminal warrants also
have time limits. Does your attorney understand the
importance of this and know which deadlines apply to
each type of warrant? Has your attorney successfully
argued for dismissal of a case based on defective
warrant service?
IMPORTANT:
Arrest Warrants may be defective and an experienced
lawyer can help you fight them. Warrants have time
deadlines and should be checked for proper form and
service. Is your lawyer experienced in attacking
warrants and checking warrant procedure violations? A
bad arrest warrant may result in the court dismissing
your case, so understanding warrant procedures may be
critical to a strong defense strategy.
Does your lawyer discuss a defense strategy
with you in advance of trial?
We do. Call us at
1-800-800-4351
to learn more about defective warrants, bad service, and
discuss a defense strategy for your case.
Warrants also must contain certain basic information or
they are invalid on their face. Knowing what info each
warrant must have allows our attorney, who were prior
law enforcement, attack defective warrants in court.
Does your attorney know how to do this? Is your attorney
experienced in attacking defective warrants and
procedural violations in VA and federal court? Does your
attorney know the time deadlines for serving different
warrants?
The maximum time limit to arrest you is known as the
Statute of Limitations (SOL). The police may arrest you
any time during or after the crime until the statute of
limitations (SOL) has expired. For most traffic and
misdemeanors crimes, the SOL is usually one year from
the alleged offense date. In certain misdemeanors, such
as shoplifting and petty theft, this can be longer.
There is no SOL expiration date for felonies.
To determine the category of crime you are charged with,
review the VA Code or call our law firm. There are also
rules that specify when certain things must be done by
the police, the prosecutor and you or defense counsel
once a charge has been made and served (i.e., defendant
arrested). These deadlines may be critical in blocking
or allowing certain expert testimony, lab sheet results,
records, bills, alibi witnesses and more into evidence.
Missing a procedural deadline can critically affect your
case if your lawyer or you are unaware of when certain
things must be file, objected to or noticed.
IMPORTANT:
Lab results, alibi witnesses and other evidence must be
notice, filed or objected to within certain time limits.
Does your attorney know these deadlines? We do. Call us
at
1-800-800-4351 to discuss your
situation. All consultations are strictly confidential.
These deadlines include, among other things, Notice of
Alibi Defense, Speedy Trial, Notice of Objection to Lab
Certificate, etc. Therefore, you may wish to consult
with a competent criminal defense lawyer to avoid
missing a critical deadline that could potentially hurt
your case.
What is a Preliminary Hearing?
A Virginia preliminary hearing is a General District
Court proceeding held by a judge to test if the police
had sufficient reason to arrest you—what the law calls a
test for “probable cause” under the Fourth Amendment to
the U.S. Constitution. This is a test to see if the
police should have arrested you for the crime they say
you committed.
What happens at Preliminary Hearing?
The state puts on evidence to show that the arresting
police officer had sufficient evidence to lead them to
believe that you committed the crime charged. This is
less than guilt or innocence, but higher than mere
suspicion. The police could have enough evidence to
arrest you and later you could win in court. This
hearing is just about what evidence the police had at
the time they arrested you, not a test of guilt.
Accordingly, the standard is low compared to what the
state needs to prove you guilty.
Typically the police show only enough evidence to
prevail at the hearing, even though they may have more
evidence against you. VA prosecutors generally like to
reveal as little as necessary of their case and evidence
at the prelim, just as experienced defense attorneys
seek to learn as much as they can about the police
evidence by questioning the officer and witnesses.
Usually the defense does NOT put on any evidence or
witnesses, as this is not the trial and even if you win
a Prelim, the police could get a warrant and arrest you
again later (sounds strange, but this is why you should
consult with an experienced criminal defense lawyer to
understand your strategy at the preliminary hearing).
Usually the defense uses the preliminary hearing to
obtain discovery, or find out what the police have on
you. The police and prosecutor try to limit what is
revealed and put on the minimum amount necessary to show
the arrest was based on sufficient evidence. You can
waive the hearing by signing the back of the warrant,
which means you skip putting the officer on the witness
stand. Waivers are usually made when the prosecutor
informally shows the defense lawyer what they have on
you and your lawyer is allowed to talk to the arresting
officer and get the same info they would have obtained
in court through questioning. This waiver procedure
speeds up the court’s docket by reducing the amount of
actual formal cross=examination Preliminary hearings
that really take place. In a waiver proceeding, the
court asks the defendant if they understand they are
waiving their right to cross examine witnesses and other
rights, and have the defendant and their defense lawyer
sign the back of the warrant copies acknowledging they
agreed to waive the full blown hearing. The case then
goes from General District Court up to Circuit Court and
the Defendant next appears in court on term day (Grand
Jury day) to obtain their next court date. By waiving,
the defendant and the defense attorney agree that there
is sufficient evidence to arrest defendant, but the
defendant retains the right to fight at trial (unless a
plea agreement is reached).
Sometimes the defense attorney is able to negotiate a
reduction in the felony charge to a misdemeanor on the
Prelim date, for which the court may accept the
defendant’s plea to the lesser charge and sentence
immediately. This strategy avoids the risk of a felony
charge for the defendant, but also may result in a high
penalty, including jail, sought by the prosecutor in
exchange for the reduced charge. So many variables and
critical considerations are in play during the
Preliminary Hearing date that having an experienced
competent defense attorney is important to maximizing
protection of your legal interests.
IMPORTANT:
Prelim date may be used to obtain a reduction of your
charge from felony to misdemeanor, if negotiated
properly. Call us to explain how this strategy may work
in your felony case at
1-800-800-4351. All attorney
discussions are strictly confidential.
A preliminary hearing is NOT a trial, although it looks
like one. As previously stated, the defendant usually
does not put on any witnesses, since the focus of the
hearing is about what the police thought and did. The
police are required to meet the legal standard of
“probable cause” to make an arrest and if the judge
finds a lack of probable cause, then the court may
release you. If released on a finding of “no probable
cause,” the police could arrest you again if they find
additional evidence that bolsters their case. The police
could also seek a direct indictment, which means they
could present evidence to a Grand Jury that may issue an
indictment (arrest warrant) based on the officer’s
secret Grand Jury testimony. Therefore, a victory at the
preliminary hearing may not completely end the case, as
the state can seek an indictment and re-arrest if their
evidence improves.
IMPORTANT:
A Prelim is NOT a trial so the Defense usually does NOT
put on evidence or witnesses.
Can I win my case at Preliminary Hearing?
Yes, but the police could re-arrest you if they find
additional evidence, so the case may not be over if you
win. The purpose of the Preliminary hearing is a test of
whether the police had enough evidence to arrest you,
not whether you are guilty. The legal standard for
arrest is low (“probable cause”), while the standard to
convict at trial is high (“beyond a reasonable doubt”).
If the judge finds a lack of probable cause
(insufficient evidence for the police to arrest) then
the charges are dropped and the Defendant is released.
If the judge finds sufficient probable cause for the
police to have made the arrest, or you waive the prelim,
then the case is certified to the Grand Jury for further
proceedings in Circuit Court.
Defense counsel may also interview the officer, discuss
the case with the prosecutor, and obtain important
information about the case without the necessity of
putting the officer on the witness stand. In these cases
of cooperative discovery of information. The Defendant
may “waive” the preliminary hearing testimony by signing
the back of the warrant, along with defense counsel, and
obtain the information informally. This waiver is often
referred to in court as “waiving the prelim”, and is
used where the information elicited at the prelim is
voluntarily provided by the prosecutor to defense
counsel.
It is important to remember that a preliminary hearing
is NOT a trial and that the prosecutor does NOT have to
put on all the evidence against you, but may confine his
presentation to the bare minimum necessary to establish
probable cause for the arrest.
IMPORTANT:
The Preliminary Hearing may be an opportunity for you to
get the felony charge reduced by agreement to a
misdemeanor by a plea agreement. Consult with an
experienced defense lawyer to understand whether this
strategy is right for you. Call us at 703-967-3655 for a
confidential discussion of your situation.
What is term day or Grand Jury day?
Term day or Grand Jury day is a Circuit Court hearing in
felony cases where defendants and their lawyers appear
in court to schedule the trial, plea or next court date.
Think of it as a scheduling date for serious criminal
cases. Failure to appear may result in an additional
criminal charge against you. Usually the procedure is
short and the defendant walks in and walks out after
setting dates on the court calendar. Bond is normally
continued, but as in every court appearance, the judge
could revoke it if the defendant has gotten arrested or
in more trouble since the last court date.
What if I arrive late to court?
We recommend you arrive at all court hearings at least
30 minutes early to avoid missing the hearing or going
to the wrong courtroom. Verify every time you come to
court that you are in the correct courtroom hearing your
case. Some judges take roll and any defendant not in the
courtroom during roll call may be considered absent and
a bench warrant issued for your arrest. If you arrive
late to court, we recommend you check with the bailiff
(court officer) for further instruction or your defense
counsel.
What if I’m sick on my court day or my car
breaks down and I miss court?
Notify your attorney by phone that you’re running late
or cannot make court. If you have no attorney, then
telephone the court immediately when you see you cannot
attend. The court will usually provide you further
instructions, but you risk a warrant for your arrest by
missing court and an additional criminal charge of
“failure to appear.” |
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