Virginia Diversion Program

One of the daunting aspects of being charged with a crime in Virginia is the permanent nature of a conviction. People frequently call Virginia criminal lawyers seeking expungements for previous convictions. Sometimes these convictions can date back several years. In most cases, the attorney has to tell the client that they aren’t eligible for an expungmement. Unlike many other states, in Virginia an expungement is not a feasible option for the vast majority of people who are convicted. The unfortunate result is that for many people a conviction will remain on their criminal records for life.

However, individuals charged with shoplifting or other petit larceny offenses have an opportunity to avoid a lifetime record. By special agreement with the Commonwealth Attorney’s office Fairfax offers an opportunity to avoid a criminal record.

At the beginning of each morning the judge handling all misdemeanor petit larceny cases asks all eligible parties if they are interested in interviewing for the diversion program. The phrase interview is inaccurate. It is more of an information session where the program director informs potential participants of the program’s terms. Typically the program requires a class and completion of about 25 hours of community service. Additionally the defendant is required to stay out of trouble for some period of time, usually six months. Often if it is a shoplifting case they are also ordered to refrain from going back in to the store where they stole. At the conclusion of the set time period the case will be dismissed if the individual has complied with all applicable terms. To be eligible for the program the defendant needs to have no prior record for theft.

Successful completion of the diversion program can be a blessing for many people. Initially the court will find that there is sufficient evidence to prove the person’s guilt but the judge will withhold a finding until the completion of the diversion period. This means that a person who has a matter dismissed after completing the program has never been found guilty. This is of tremendous benefit to anyone applying for a job, loan, or college admission. If an application asks if you have ever been convicted of a crime, a person who completes the program can answer “no”. Being able to answer “no” to a prior conviction can mean the difference between a successful application and a rejected one for a great deal of people.

The diversion program available for shoplifting/petit larceny cases in Fairfax is a great result for many people. However there are significant drawbacks.

1)     Not  Expungable        

An expungement is a complete removal of any indication a person was ever charged. The arrest, police record, and all court records are destroyed as part of an expungement. A person who completes a diversion program is not eligible for an expungement. This means that a review of the court, police, and/or criminal records will reveal the arrest. It will also show that the matter was later dismissed, but the existence of an arrest may require a person to answer some uncomfortable questions about their criminal history. Essentially completion of the diversion program is a great way to avoid a conviction but it doesn’t eliminate the record completely.

2)     THE TERMS CAN BE DIFFICULT TO COMPLETE

Before agreeing to participate you must come to the honest assessment of your ability to complete the program. You will be required to pay court costs, complete classes, and serve community service. The required amount for community service is typically about 25 hours. This will all have to be done in about a six month period. Starting and failing to complete the program can have potentially worse consequences than never starting at all. If you are going to have difficulty completing the program, it may be better to avoid it all together

3)     IT’S A ONE TIME DEAL

Diversion is only available to individuals who have never been convicted of theft and who have never participated in the diversion program. It’s like a get out of jail free card that can only be used once.

If you are facing shoplifting/petit larceny charges in Fairfax the diversion program may be an excellent option. However, if you are not guilty or have other legal defenses the program can be a far too severe punishment.

Whether participation is a wise decision depends entirely on the facts of your case and your ability to complete the program. This is why it is important to talk to an attorney before you go to court. At the Law Office of Faraji Rosenthall we always offer honest, free consultations regarding all Fairfax shoplifting cases.

A DWI Arrest Where The Police Doesn’t Witness The Driving Behavior

On July 28th, 2012 in James City, Virginia Michael Brandon Coates was arrested on suspicion of drunk driving. According to the Virginia Gazette, Mr. Coates’ arrest was initiated by a private citizen. A good Samaritan was driving when he observed Mr. Coates driving erratically. The driver then observed the suspect veer off the road and hit two mailboxes without stopping, the suspect continued to drive.

Meanwhile, the observant citizen followed the driver and called police. At some point the suspect stopped his vehicle at an intersection. It was at this point the caller got out of their vehicle, walked up to the suspect’s car and removed his keys from the ignition.

Police arrived on the scene and arrested the suspected driver. He has been charged with two misdemeanor charges of leaving the scene of an accident, two counts of damaging property, and DUI. Reports indicate that the arrest was a direct result of the citizen’s actions.

Anyone facing drunk driving charges should seek appropriate advice to navigate the legal process and present a meaningful defense to achieve optimal results.

This arrest certainly is different from a typical case. Typically an officer observes erratic driving, makes the stop and then performs field sobriety tests, etc. in the search for evidence. When a case takes a different course, there may be opportunities for the police to error in collecting evidence.

For example under Virginia DWI law a breath test is only valid if a person is arrested within 3 hours of the time they stopped driving. If police arrive on scene and a driver is out of the car they may not be able to determine when the individual stopped driving.

Also, under Virginia DWI law the police must prove a person did not consume alcohol after they stopped driving. Again, in a typical DWI case this isn’t an issue. The cop sees a suspect drives, stops the car and there is no time for the suspect to drink. However, where the cop doesn’t witness the driving behavior they must prove there was no alcohol drunk in other ways. Most of the time when an officer doesn’t observe drinking are proven by the suspect’s own statements. Many times if a Defendant exercises their right to remain silent the police won’t be able to prove a DWI.

Anytime a DWI arrest involves an accident or any other circumstance where the police don’t see driving behavior significant legal issues comes into play.

What Is A Restricted License And How Does It Work?

Anyone convicted of a Virginia DWI will automatically have their license suspended for a period of at least one year.  This is mandated by state law and cannot be reduced.  The period may be even longer than a year if someone already has a previous DWI on their record.  However, in many circumstances a person convicted is eligible for a Restricted License.  A Restricted license allows a person convicted of DWI to drive for certain limited purposes during that license suspension period.

 A restricted license allows a person to drive for certain limited purposes. The only allowable purposes are:

  1. Work,
  2. ASAP meetings,
  3. School,
  4. Doctor’s appointments,
  5. Transport children to school/daycare/doctors/court ordered visitation,
  6. Meetings with Probation,
  7. Church services,
  8. To go to jail to serve a sentence.

In order to get a restricted license a person must first complete an application.  The application requires a person to list their address and the address of their work, school and other places that are to be included on the application.  A judge then reviews the application and approves or denies the locations requested.  After approval, the clerk’s office will prepare what is commonly referred to as a “green sheet.”

The actual process for getting a “green sheet” from the clerk varies from jurisdiction to jurisdiction.   Some jurisdictions will allow an individual to obtain one right after court, others may require a few days wait time.  However, in all circumstances the form will require a signature from the Defendant’s ASAP sponsor.

The “green sheet” will then become the individual’s driver’s license for the next twelve months.  It is required that the driver keep the form with them at all times when they are driving.  The sheet specifically states the locations, times and places that a person is allowed to drive.  Failure to comply with the terms of the restricted license can result in severe penalties.  Additionally, a person driving on a restricted license is not allowed to have consumed any alcohol whatsoever.  This may violate a condition of the person’s probation as well.  Instead of the .08 BAC limit typically used for DWI cases, a person driving on a restricted license breaks the law if they have a BAC of .02 or above.

When the judge initially suspends a person’s license the court confiscates the plastic license.  The Defendant will then need to go to DMV and get a new plastic license.  The DMV will not be able to accommodate a request for a new license until at least 30 days after the suspension in court.  The DMV will also not accommodate a request more than 60 days after court.  This effectively means that the only window to get a new license is between 30 and 60 days after court.  Failure to apply before the 60 day deadline will possibly invalidate the “green sheet” and erase an individual’s restricted privileges.

Virginia code 18.2-272 regulates the use of restricted licenses.  The law makes it illegal for a person to drive for any reason not specifically authorized by a judge.  Combined with the limited scope of allowable driving under the DWI laws and life under a restricted license can be very difficult.  For example, a person on a restricted license cannot drive to the grocery store, or to the movies, or to a fast food restaurant.

A violation of 18.2-272 is a Class 1 misdemeanor.  That is the same category as the initial DWI and is punishable by up to 12 months in jail and a fine of up to $2500.  It is common for first time violators to receive a suspended sentence and avoid active jail time as punishment.  However, upon conviction of a violation, the DMV will suspend a person’s drivers license for an additional period of 12 months.  Additionally, all restricted license privileges will be revoked and the person will not be eligible to receive one during that period.  Effectively, a conviction for violating 18.2-272 means that a person will not be able to drive to work, or school, or anywhere for the next 12 months.  It is such a potentially severe punishment that it should deter anyone from taking a risk and driving outside of their allowable locations.

Driving on a restricted license can be complicated and tedious.  For many people the worst part of a DWI conviction is the loss of license.  Having a restricted license can be beneficial in that it allows many people to still get to work, or school and to take care of their families and children.  However, it is imperative that it be done correctly.  For example, if a person moves or changes jobs and doesn’t update their forms, they are technically in violation of the law and may be facing a 12 month absolute suspension.

Because the stakes are so high, it is important that you communicate with your lawyer and make sure any changes are reflected on your green sheet.  At the Rosenthall Law Office we are aware of how important driving is for most people.  We also realize how essential it is to update the restricted license application.  That is why we always assist in updating restricted licenses for our DWI clients as part of the initial retainer agreement.

Reckless Driving Conviction Can Impact DC Drivers Lincense

According to the Washington Post Local section, a gentleman by the name of Tom Selden encountered a situation where he was caught doing 84 on a 70-mph zone on Interstate 295 southeast of Richmond. He admits he was speeding; he never experienced any problems on the road before. He has a clean record with no tickets, no accidents, and no points. He didn’t think anything would be as serious until he learned that his driver’s license would be revoked. Selden was charged with Reckless Driving and the Department of Motor Vehicles informed him that he would be without a license to drive for at least six months.

The problem lies with the fact that Mr. Selden had a D.C. driver’s license. Under Virginia law, Reckless Driving is anything 20 or more miles over the speed limit or anything over 80 miles per hour. Mr. Selden was ticketed for going 84 in a 70 mile per hour zone. He understandably thought it wasn’t a big deal and he simply paid the $230 fine.

The problem was the way his home residence, D.C., interpreted it. In the District Reckless Driving has a much harsher definition, and harsher penalties. In Virginia Reckless Driving is a six point violation. However, when D.C. learned of the conviction it interpreted it under the applicable D.C. law. That meant Mr. Selden would get 12 points on his license. D.C. has a 12 point scale and the conviction meant an automatic license suspension for Mr. Selden.

The Post found a number of similarly situated individuals. All suffered the same rate as Mr. Selden. Some have appealed to the D.C. DMV. All appeals have been denied.

While legislators are working to change this problem, it does serve to illustrate an underlying truth. It is always best to at least talk to a lawyer before going to court. A five minute conversation could have saved Mr. Selden a lot of headache and a 6 month license loss.

At the Law Office of Faraji Rosenthall we offer free consultations. Anyone who has a pending Virginia Reckless Driving charge should take advantage of this free service. Sometimes a ticket is so small it doesn’t make sense to hire us. Other times a case may be much more serious than a person originally thought. Many times it’s somewhere in the middle. Regardless, by taking a few minutes to discuss your case you will get an honest assessment of your case and learn all the options available to you.

Virginia Dwi Case Appealed To United States Supreme Court

In 2009, Jean Patel Enriquez was arrested in Alexandria, Virginia for DWI. When he was arrested he was sleeping behind the wheel of his vehicle. The officer who arrested Enriquez couldn’t remember if the keys were in the “on” or “off” position. He could only remember that the radio was running.

Cases in Virginia had previously established that a person couldn’t be convicted of DWI unless the officer knew the key was in the “on” position. In a 1992 case a DWI conviction was overturned when the officer testified he wasn’t sure where the key was.

However, Mr. Enriquez wasn’t quite so lucky. He was convicted of the DWI in the lower courts. The lower courts found him guilty of drunk driving. Mr. Enriquez has now appealed his case all the way to the United States Supreme Court.

Mr. Enriquez’s lawyer points out that it is inherently unfair to find his client guilty given the circumstances of the case and the Virginia DWI laws at the time. They argue that while the courts have the ability to define laws and reshape meanings, it is unfair to change the laws after someone commits an act. Mr. Enriquez had a legitimate belief that under the law his actions were proper. It is only the courts new ruling that made the actions illegal.

Regardless of how the Supreme Court rule, or even if they agree to hear the case, Mr. Enriquez has unwillingly changed Virginia DWI laws.

Faraji Rosenthall

Drunk Driving Attorney