You do something stupid. You do your punishment. You think it’s behind you.

You definitely think it’s behind you when it was FORTY years ago.

A Wells Fargo employee, Yolanda Quesada, found out that it’s not. She was fired after a background check revealed she was convicted of shoplifting twice in 1972. She had apparently been a well-regarded Wells Fargo employee for five years. Now she’s unemployed.

This is one reason it’s critical to consult with an attorney if you’re charged with shoplifting in Virginia. It’s a serious offense that could have devastating consequences decades down the road.

You never know when an employer might find out about a past offense, and you certainly don’t know what they will do about it. I’d like to think that Yolanda’s situation is an extreme example, but I’m afraid it’s not.

The side point that I don’t see addressed in the media reports about Yolanda is whether or not her Wells Fargo application asked if she had ever been charged and/or convicted of a theft offense. I would bet that a bank’s employment application would inquire about that info. At the very least, I’m not sure why an initial hiring background check didn’t reveal the 1972 offenses. The bigger problem Wells Fargo might be facing is if Yolanda was asked about any prior convictions and she didn’t disclose them. That becomes a current offense of dishonesty against the company instead of an old offense that might could be overlooked.

In other words, if you have a shoplifting conviction, even from 40 years ago, you must disclose it whenever you’re asked. Better to tell the truth about an indiscretion from a long time ago than be accused of lying today.

Photo by boutmet

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. 40-Year-Old Shoplifting Conviction Costs Woman Her Job

To pull you over, an officer typically needs “reasonable articulable suspicion.” That’s a mouthful that basically means “more than a hunch.”

Video Transcription

Hello, my name is Andrew Flusche, and I’m a Virginia traffic attorney. If you are stopped while driving a vehicle, the officer has to have what’s called “reasonable articulable suspicion” in order to pull you over. There are some exceptions to that, such as roadblocks and checkpoints, but those are a whole other video’s worth of information.

Basically, if you’re stopped in a normal situation, where the officer puts on their lights and pulls you over, to make it a legal stop, what the law says is that the officer has to have reasonable articulable suspicion that you are violating the law in some form. Typically, that involves speeding, making an improper lane change, running a stop sign, or something of that nature. In many cases, a simple stop like that ends up being a DUI, possession of marijuana, or something more serious.

But in some cases, it’s not clear that the officer had reasonable articulable suspicion of some kind of legal violation. Sometimes what happens is maybe the officer doesn’t have a specific, clear violation of the law. Virginia law, unfortunately, does let the officer stop you if there is some reasonable suspicion of some kind of problem. There is case law that says that weaving in your own lane can be enough for the officer to pull you over and suspect you for DUI if his training basically says, and his experience says that weaving within your lane is caused by DUI, then he can pull you over for that.

Sometimes though, the officer can be mistaken when he pulls you over. He might think that he has a good stop, but that stop might not be upheld by the court as valid. The key thing for a defense is that if the officer did not have reasonable articulable suspicion to pull you over, then any evidence obtained from the stop should be suppressed in court. In many traffic and DUI and possession of marijuana cases, that might be enough to win the whole case. That might throw out all the evidence against you basically.

This is a really important thing for us to look at first in your case: did the officer have a reasonable articulable suspicion to pull you over? It’s not probable cause – that’s a whole other topic and it’s a different standard – but to make a traffic stop, he has to have reasonable articulable suspicion, and that’s basically more than a hunch. So if you would like to talk about that on your case, give me a call.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Traffic Stops: Reasonable Articulable Suspicion

Some marijuana possession cases aren’t clear cut. If you didn’t admit to having the marijuana, we may have an argument that the Commonwealth can’t prove you were legally in possession of it.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic and misdemeanor attorney. If you’re charged with possession of marijuana, one of the important things for us to look at is whether or not the Commonwealth can actually prove that you were in possession of marijuana. It seems so basic, but it really does matter and in some cases it means the difference between winning or losing.

Unfortunately in many cases what happens is the officer maybe pulls you over or encounters you on the street, and for some reason or another, the defendant admits “Yes, I have marijuana; here it is.” In those cases, the element of possession is really not an issue because you admit it. So it’s very clear that you knew you had it and what it was, and there is really not an argument.

Where possession really becomes the key in a case, is in a situation where the officer comes along and maybe searches a car or searches a room and finds marijuana somewhere not on your person. Then the issue is, can they prove that you were actually in possession of it?

Just because you’re near it, Virginia law says that’s not enough. Being in the mere proximity of marijuana doesn’t mean that you’re in possession of it. When it’s not in your actual possession, what the Commonwealth has to prove is what we call ‘constructive possession.’ Basically we look at all the other pieces of the case, the other facts, and decide if putting all those together, we can say that you constructively possessed the marijuana. That’s the legal argument the Commonwealth would make.

What the courts say is that they have to show that you were aware of both the character and presence of the marijuana and that it was under your dominion and control. So you not only have to know that it’s there and know what it is, but you also have to be able to exercise control over it. So again, the law is that just being in mere proximity to the marijuana is not enough. Just being in the same car with the marijuana is not enough to be in possession.

Now, if it’s a car registered to you and the marijuana happens to be under the driver’s seat and there is nobody else in the car, that may be enough to be found to be in possession of the marijuana. But, if there are a couple other people in the car, it’s not your car, the marijuana is in another seat or on another floorboard where you’re not sitting, then that’s a much clearer case where you could argue that you were not in possession of marijuana.

There are a lot of facts and circumstances to look at, but just because you’re charged with possession, and just because you may have been near marijuana, does not mean that they can prove beyond a reasonable doubt that you were, in fact, in possession of it. There are a lot of little pieces to look at and that’s something that we definitely need to talk about if you have a possession of marijuana case.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Proving Possession of Marijuana in Virginia

If you’ve been charged with a Virginia misdemeanor, such as DUI, driving on a suspended license, or possession of marijuana, you may be wondering about your Miranda rights. Potential clients frequently mention “the police didn’t read me my rights.”

First of all, what are the Miranda rights? Simply put, they are a warning the police give to suspects before they are interrogated when in police custody. The term “Miranda rights” comes from Miranda v. Arizona, where the U.S. Supreme Court kept out the defendant’s confession due to the coercive nature of the interrogation.

The rights explained in a “Miranda warning” are:

• Right to remain silent
• Right to an attorney

Essentially what this means is that you don’t have to talk to the police and that you have the right to have an attorney present for a custodial interrogation. If you do talk, your statements WILL be used against you in court. And of course the state will appoint an attorney for you if you’re indigent.

But how does Miranda apply to traffic and misdemeanor cases?

Honestly, in the vast majority of the cases I handle, Miranda warnings don’t matter a single bit. People are shocked when I explain this, but it’s really quite simple.

DUI cases provide a great example. Let’s say an officer pulls a driver over for speeding. He’s fully entitled to ask questions to investigate that offense without any Miranda warnings (the driver isn’t considered in custody while pulled over on the side of the road).

Then if the officer suspects a DUI, he asks the driver out of the vehicle for field sobriety tests. The driver’s still not in custody, so Miranda doesn’t apply.

Once the officer has enough evidence to support probable cause for a DUI, he arrests the defendant. But the only thing left for a typical DUI case is the breath / blood test. In Virginia, the driver is obligated to take the test (or be charged with refusal), so there’s no confession issues there.

The only way Miranda would matter for an average DUI is if the defendant made harmful statements after the arrest. But usually the harmful statements are made during the first few minutes of the stop before the handcuffs come out. Thus in many cases, the fact that the officer didn’t read your rights is completely irrelevant to a defense.

The key question for Miranda is whether or not you made a statements (or other admissions) while in custodial interrogation. If so, the Miranda warning must have been given first. But if there’s no custodial interrogation, Miranda frankly doesn’t matter.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. What are the Miranda Rights?

This clip from the Today Show is great. It shows several crazy antics that were caught on tape, including a couple traffic incidents. My favorite is the REALLY determined parking enforcement guy. Watch the video to see what I mean!

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Crazy Antics Caught on Tape

If you’re charged with DUI / DWI in Virginia, the officer will need to prove that he had probable cause to arrest you in order to admit the breath test results against you. Without probable cause, your case might be beatable.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. One of the important pieces of any DUI case is that the officer has to have what we call “probable cause” to make an arrest for DUI. The important thing there is that probable cause is what triggers the implied consent law in Virginia. Once the officer has made a legal arrest for DUI (and there are some other requirements, but probable cause is one of the big pieces for a legal arrest for DUI) that triggers implied consent. That basically says that by driving on a highway in a Commonwealth you have impliedly consent to have a breath or blood sample taken if you are legally arrested for DUI. So probable cause is a piece they have to have.

But what does that mean, what is probable cause? Probable cause is basically what all those roadside tests are designed to establish. The officer uses the field sobriety tests, such as the one leg stand, the 9 step walk and turn, the alphabet, and all the other little tests he does, they use those, along with the roadside breath test, the PBT. Those are all used to establish that the officer has probable cause to think you’re intoxicated. It’s not proof beyond a reasonable doubt, but it’s definitely more than reasonable suspicion. But it’s not clear proof, it’s just that you are probably intoxicated.

The important thing for us to look at in your defense is that probable cause is made based on what we call “the totality of the circumstances.” So any one piece may not be enough to establish probable cause but when you stack them all up together it could be enough for the judge to say “Yes, that’s a legal arrest.” So the officer is allowed to use things such as an odor of alcohol, slurred speech, what your driving behavior was like, whether or not you were steady when getting out of your vehicle, all these little things. And again, one thing might not be enough to mean anything, but when you add them all up together it may mean probable cause.

So that’s one of the important things for us to analyze when we talk about your case together. Did the officer have probable cause to arrest you for DUI? Because if he didn’t, if there isn’t probable cause, then we may be able to suppress the breath test results, and that could mean the difference between winning or losing your DUI case.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Probable Cause for Virginia DUI / DWI

No, I didn’t do this. But a physicist in California did.

Apparently he was cited for rolling a stop sign. Based on angular and linear motion, he argued that the officer couldn’t have observed what he thought he saw. The judge dismissed the case.

The articles I’ve found on the case are pretty vague about the specifics. (Update, the physicist’s actual paper is online.) But it sounds like a really technical argument. I’m guessing the argument was basically that based on the angles involved, the officer didn’t have a clear enough view of the vehicle to see whether or not it as in motion.

I could see a similar argument working in the right case in Virginia. However, the problem is that you’d need an expert witness to explain the science. Unless the defendant happens to be a physicist as in this case, hiring an expert would likely cost more than it would be worth.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Beating a Traffic Ticket with Physics

Effective July 1, 2012, even a first offense DUI / DWI in Virginia will require ignition interlock as a condition of getting a restricted license. It’s a major change to Virginia DWI law.

Video Transcription

Hello, my name is Andrew Flusche, and I’m a Virginia traffic attorney. I wanted to explain to you a change in Virginia’s law that will be taking effect on July 1st of this year, 2012. This pertains to DUI or DWI. Starting July 1, 2012, if you’re convicted of even a first offense of DUI or DWI, you would have to have ignition interlock in order to have a restricted license. That’s a big change, because prior to July 1st of this year, you would only need ignition interlock for a restricted license on a first offense DUI if your blood-alcohol content is proven to be a .15 or more. Starting July 1, 2012, even a .08 or very low level like .07 (you could be convicted with just a .07 blood-alcohol content) in order to get a restricted license on even a first DUI, you will have to have ignition interlock as a requirement.

What does that mean, realistically, for you if you’re facing a charge of DUI? What that means is, if you’re convicted of any first DUI after July 1st, you will have a couple of choices. If you don’t want to drive for a whole year; your license is going to be suspended for one year for a DUI first conviction; then you simply don’t drive for that one year. If you do want to have a restricted license, maybe you need that to get to work or school, or to take care of your kids, or to drive to church, which are all permissible purposes under the law, in order to have that restricted license, you cannot drive any vehicle unless it has ignition interlock installed. It is a condition of your restricted license. I did have some clients who didn’t care to drive during that year. They were able to make other arrangements. Maybe you’re retired or don’t need to drive much, and if you can make do without driving a vehicle for a year you don’t have to mess with ignition interlock at all.

That’s a little bit different than it used to be. It’s not a condition of getting your license back; it’s simply going to be a condition of having a restricted license. But if you want to have a restricted license and you want to drive for any permissible purposes you will have to have ignition interlock installed and that’s the way it’s going to work.

Now, if you’re charged with a second DUI and convicted of a second offense DUI, the ignition interlock would be a condition of your restricted license at the appropriate time, but it would also be a condition of license restoration. What that means is for a second offense, in order to get your license back, you would have to have ignition interlock. Even if you don’t get the restricted license during court, you’re going to have to get ignition interlock at some point for a second offense.

For a first offense, you do have the choice to not have ignition interlock and not drive. In order to drive at all after a first offense during that one year, you’ll have to have ignition interlock, which is the blow machine. You’ll have to blow into it before you can start your car. It’s going to be a financial burden, but it’s something that we can help work with you on to help manage the process.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Virginia DWI – Ignition Interlock for ALL Restricted Licenses

A good friend of mine sent me an article about Jose Maria Olazabal getting a speeding ticket for 97 in a 65 mph in Georgia while on his way from the Masters to Hilton Head for another tournament. (Thank you, Deb! She’s a terrific Virginia estate planning attorney.)

And it only cost him $621.

Good thing he didn’t get caught doing that speed in Virginia. If Olazabal was stopped for 97 mph in Virginia, he most likely would’ve been charged with reckless driving. It’s a class 1 misdemeanor, the same level of offense as DUI.

Apparently in this case, the deputy escorted Olazabal to the Sheriff’s Office to simply pay the fine. If he had received a reckless driving ticket in Virginia, he would be given a court date to appear in court later on.

Here’s the scary part: depending upon the court, 97 mph could have landed him in jail! That depends upon the judge who hears the case, but in some areas of Virginia, any speed over 90 mph carries a risk of jail time. Around the Fredericksburg area where I practice, people typically don’t get jail time for reckless driving until 100 mph.

But in most Virginia courts that I’m aware of, 97 mph would definitely carry a risk of license suspension. That’s not to say Olazabal would certainly lose his privilege to drive in Virginia, but it would absolutely be a concern in a case of this nature.

In other words, a $621 fine seems pretty light to me, at least compared to a Virginia reckless driving charge.

Photo by Richard Carter

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Golfer Olazabal’s Ticket Could Be Worse in Virginia

A while ago I talked about VASAP, but I thought a quick refresher might be in order.

VASAP stands for: Virginia Alcohol Safety Action Program.

In a nutshell, if you’re convicted of DUI / DWI in Virginia, the court has to order you to complete VASAP.

Yep, it’s a pain.

Virginia Code 18.2-271.1 provides the VASAP requirement. It says that anyone convicted of a first or second offense of Virginia DUI must be ordered to enter into and complete VASAP. In practice, VASAP is typically required as a condition of suspended jail time. In other words, if you don’t complete VASAP as ordered, you could serve more time in jail.

In addition to the risk of jail, you cannot get your Virginia license or privilege to drive reinstated without completing VASAP. Some people end up suspended for a DUI for much longer than 12 months simply because they didn’t complete VASAP.

The problem with VASAP for some people is that it’s costly and burdensome. The VASAP fee is several hundred dollars, and a minimum course of treatment is typically 10 education classes. For second offense DUIs, many people are referred for counseling as well, which costs even more money.

As much of an expensive pain as it is, you’ve got to complete the program if you’re convicted of Virginia DWI / DUI. The good news is that at least your restricted license will let you drive for your VASAP classes and treatment.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. VASAP is Required for Virginia DUI / DWI