Is Your Lawyer Waiving Your Rights?!

UPDATE: Virginia decriminalized simple possession of marijuana on July 1, 2020. Click here for details.

If you’re charged with a crime in Virginia, you have the right to confront the witnesses against you. If there’s a scientific certificate of analysis at issue in the case, your confrontation right includes the people who actually did the analysis.

But did you know that your lawyer could waive that right without you even knowing?

The Virginia Court of Appeals just decided Whitehurst v. Commonwealth (PDF), which examined this issue.

In Whitehurst, the defendant tried to object to a certificate of analysis of cocaine in her drug trial. But the Commonwealth Attorney had properly filed its Notice of Intent, which triggered a 14-day deadline for the defense to demand the presence of the actual lab examiner at trial.

Whitehurst’s attorney didn’t object to the certificate coming into evidence during that 14-day window. Because of that failure to act, the defendant’s right to confront the lab technician was deemed waived.

The scary part is that Whitehurst testified that her attorney never discussed this issue with her. While trial strategy is ultimately the attorney’s decision, we are required to discuss those strategies with our clients.

When selecting an attorney, you definitely want someone who will discuss important rights with you and advise you on the best courses of action. Be sure to give lawyers my lawyer quiz when interviewing them:

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Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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