West Virginia and Virginia permits DUI arrests on Private Property

DUI on Private Property?

DUI on Private Property?

In Virginia, a person can be charged with a DUI for drinking and driving on private property. Last week, the West Virginia Supreme Court interpreted West Virginia DUI law the same way.

Chief Justice Menis Ketchum wrote in the majority opinion “The Legislature’s definition of the phrase ‘in this State’ … extends the reach of our driving-under-the-influence laws to any individual driving a vehicle within the physical boundaries of West Virginia, even if the vehicle is driven only upon private property not open to the general public.”

In 2012, Joshua Beckett was driving an ATV in a field on farmland owned by his family. After a crash, he was hospitalized and blood was taken. His BAC (Blood Alcohol Content) was 0.17. The legal limit in West Virginia is 0.08.

Beckett’s DUI lawyer argued that his license couldn’t be suspended because he was driving the ATV on private, family-owned land, the Supreme Court opinion states. He argued that there was also no evidence of him driving on a public street or highway.

So please be aware that now, in both West Virginia and Virginia, people can be arrested for DUI or DWI and have their driver’s licenses taken away even if they’re driving on private property.

 

Alex Gordon The Gordon Law FirmAlex Gordon Fairfax DUI Lawyer
Alex Gordon
Fairfax Criminal Defense Lawyer

Alex Gordon is a criminal defense attorney that has more than 16 years of experience representing people in Fairfax County, Loudoun County, and Prince William County. He has been practicing law for more than 22 years and is member of the Florida, Georgia, and the Virginia State Bar. The Gordon Law Firm has helped more than 2500 people accused of Reckless Driving and DUI in Virginia.


Blatant Racism on a Jury? : Supreme Court to decide if it’s okay

closed mindsThis spring, the United States Supreme Court is considering a case that may determine whether jury deliberations should remain secret, even if the jury includes members that make racist comments to encourage the conviction of a defendant.

In 2007, a Mexican national named Miguel Angel Pena-Rodriguez was convicted of unlawful sexual contact and two counts of harassment after two teenage girls identified him as their assailant. The victims claimed Pena-Rodriguez sexually assaulted them in a bathroom of the accused’s place of employment in Denver, Colorado. After his conviction, Pena-Rodriguez’s lawyers filed a motion for juror contact information.  They believed that some of the jurors used racial slurs during their deliberations. Defense counsel was granted permission to obtain affidavits from the jurors solely to gather information about what the alleged racist jurors had stated.

Two jurors came forward, M.M. and L.T., and claimed that H.C., a former law-enforcement officer, made statements that he thought Pena-Rodriguez “did it because he’s Mexican and Mexican men take whatever they want.” Also uttered by H.C. were statements that Mexican men were physically controlling due to their supposed sense of entitlement, that their “bravado” leads them to take action with women, and that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Finally, H.C. was alleged to have said that Pena-Rodriguez’ favorable witness was not to be trusted because he was an undocumented immigrant.

Juror H.C. made it through jury selection, a process known as vior dire.   Several questionnaires, submitted by both prosecution and defense, were presented to each juror, including H.C..  They potential jurors were questioned as to whether or not they held any kind of racial bias.  All final members selected to the jury, including H.C., claimed they had no bias.

Pena-Rodriguez moved for a new trial based the information obtained in M.M. and L.T.’s affidavits.   The Colorado Court of Appeals was split. The Court found that CRE 606(b), in its application in Pena-Rodriguez’s trial, was not unconstitutional. CRE 606(b) grants a broad protection to jury deliberations, and any statements or shared thoughts made during the process. However there are three exceptions, two of which apply to this case, according to the three Justices that wrote for the dissent: “[A] juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, and (2) whether any outside influence was improperly brought to bear upon any juror…”

Is it more important to protect jury deliberations, even if statements made could influence fellow jurors to the point of convicting a potentially innocent person solely based on ethnicity or skin color? Or, is an accused’s Sixth Amendment right to a fair and impartial jury more important? SCOTUS will hear arguments on whether or not the trial court’s application of CRE 606(b) was unconstitutional, and how, or if, it affected Pena-Rodriguez’ Sixth Amendment right. As for now, jury deliberations remain secret. Come fall, however, SCOTUS may rule that inappropriate conduct in the jury room, may allow cases to be re-opened.

Alex Gordon  Fairfax Criminal Defense Lawyer

Alex Gordon
Fairfax Criminal Defense Lawyer

 

Alex Gordon is a criminal defense attorney that has more than 16 years of experience representing people in Fairfax County, Loudoun County, and Prince William County.  He has been practicing law for more than 20 years and is  member of the Florida, Georgia, and the Virginia State Bar.  The criminal defense lawyers of The Gordon Law Firm has helped more than 4500 people accused of criminal charges in Virginia.


Atlanta Braves baseball player Olivera arrested in Arlington assault

On Wednesday April 13, 2016, Arlington County Police were called at approximately 7:00 AM to the Ritz-Carlton Hotel in Pentagon City, by a woman saying she had been assaulted by an Atlanta Braves baseball player. The police reported the female victim had bruises and was transported to Virginia Hospital Center in Arlington. Police would not provide specifics about the relationship. However it was reported that Braves outfielder Hector Olivera and the alleged victim knew each other.

Atlanta Braves player Olivera, 31 years old, was arrested by the Arlington Police Department for alleged being involved in a domestic dispute with the injured female. Olivera was expected to be formally charged and appear before a judge of the Arlington County court Wednesday afternoon.

The Braves outfielder was placed on administrative leave by Major League Baseball pursuant to its new domestic violence policy. In August 2015, the MLB adopted a domestic violence policy that gives Commissioner Rob Manfred power to discipline players regardless of whether there is a formal criminal charge or a conviction.

Olivera, the Atlanta Braves left fielder had started 5 games this season. He did not play in Tuesday evening’s loss to the Washington Nationals. Olivera defected from Cuba in 2014.

The Atlanta Braves said in a statement, “We are extremely disappointed and troubled to learn of the allegations involving Hector Olivera. We will continue to gather information and will address this matter appropriately as we determine the facts.”

The charge of misdemeanor assault on Virginia is punishable by a fine of up to $2500.00 and/or a term in jail not to exceed 12 months. It is unknown whether the alleged assault was of a sexual nature or caused substantial injuries which could lead to felony charges such as Unlawful Wounding or Malicious Wounding.

The criminal defense lawyers of The Gordon Law Firm have helped more than 4,000 people charged with Assault and Battery, Domestic Assault, DUI,  and other criminal charges in Loudoun County, Prince William County, and Fairfax County.

Alex Gordon and Carlos Wall can answer questions of criminal defense matters at 703.218.8416.

 

Parts of this article came from reports from the Atlanta Journal Constitution and WJLA.

http://www.ajc.com/news/sports/baseball/report-braves-hector-olivera-arrested-for-domestic/nq4t9/


Werth trial for Reckless Driving scheduled for February 3, 2015 in Fairfax County

Nationals baseball player Jayson Werth appeared in Fairfax County Circuit Court today in order to set a trial date for his charge of Reckless Driving.  The court scheduled the jury trial for February 3, 2015 at 10 AM.  At this time a judge has not been assigned to the case.  Typically judges in Fairfax County are not assigned to a criminal trial until the actual date of the hearing.

Jayson Werth was convicted by a General District Court Judge in Fairfax County of Reckless Driving under Virginia Code Section 46.2-862.  He was alleged to have been driving his sportscar at 105 mph in a 55 mph zone on the I-495 beltway in Fairfax County.  The General District Court judge imposed a 10 day jail sentence and a 6 month loss of license.

In Virginia, a person driving just 20 mph above the posted speed limit or at a speed of 80 mph or greater can be charged with Misdemeanor Reckless Driving.    What many people don’t realize is that a person does not need to drive “recklessly” – switching lanes, tailgating, swerving, or squealing tires- to be charged with Reckless Driving under Virginia law.  All that is required is speed.

In Virginia, a person convicted of a misdemeanor in General District Court may file an appeal.  Once an appeal is filed, whatever punishment was imposed the the lower court judge is eliminated, and the person has a right to a new trial in Circuit Court.  The determination of guilt or innocence is made by a jury or a judge.  Either party, the Commonwealth or the Defendant, may request a jury trial.

If a person is tried by a jury, the panel of jurors first must decide whether there is “proof beyond a reasonable doubt” in order to convict the Defendant of the crime.  If a person is found guilty, the jury issues a recommended sentence.  The potential sentence for Reckless Driving in Virginia can be up to 12 months in jail, a $2500.00 fine, and/or a 6 month loss of his privilege to drive in Virginia.

After a trial and sentencing, a Circuit Court judge may choose to reduce a jury recommended sentence and/or suspend part of a jail sentence and fine.  The judge cannot increase the punishment recommended by the jury.

 

Alex Gordon  Fairfax Criminal Defense Lawyer
Alex Gordon
Fairfax Criminal Defense Lawyer

 

Alex Gordon is a criminal defense attorney that has more than 15 years of experience representing people in Fairfax County, Loudoun County, and Prince William County.  He has been practicing law for more han 20 years and is  member of the Florida, Georgia, and the Virginia State Bar.  The Gordon Law Firm has helped more than 2000 people accused of Reckless Driving in Virginia.

 


Even Jayson Werth faces jail time for Reckless Driving in Fairfax

I was in the outfield stands with my nine year old son on October 11, 2012, a blustery autumn night.  That is when Jayson Werth treated me to the greatest sports moment that I had personally witnessed.  I had been a Washington Nationals season ticket holder since their 2005 return to RFK stadium.   I had followed the team since Cristian Guzman and Livan Hernandez were the team leaders and Frank Robinson guided a mix of youngsters and veterans to a 81-81 record in their first season.  I had also suffered with the Nationals when they had lost more than 100 games.

That night in Game Four of the NL Division Series, Lance Lynn, the St. Louis Cardinals reliever, did his best to strike out Jayson Werth.  He threw pitch after pitch, at speeds greater than 90 mph, trying to get the last strike.  But Jayson Werth could handle the speed and kept fouling off one ball after another.  Then, on the 13th pitch, Werth blasted the ball over the left field wall.

No one wanted to leave Nationals Park.

According to Jayson Stark of ESPN.com, for the next “10, 15, 20 minutes after his game-winning home run had clattered off the back wall of the visitors’ bullpen, nearly all of the 44,392 customers who witnessed it remained frozen in place at their seats.”

The smile on my son’s face seemed to be wider than ever.  I will forever be grateful to Jayson Werth for providing that awesome moment for my son and I to share forever.

Unfortunately, Jayson Werth had a bad day today.

This man, who does great things on the baseball field, has a home and a family in Fairfax County  faced a Judge of the Fairfax General District Court for Reckless Driving.  Werth was represented by a very good attorney, a lawyer that I respect and has the respect of many judges in Fairfax County.  Yet, despite the lawyers efforts,  Werth was sentenced to serve 10 days in jail.  In the Commonwealth of Virginia, misdemeanor jail time can be credited with good behavior time, so he would serve only 5 days of that sentence and then be released.  Truly a bad day for our town’s baseball hero.

The crime he was accused of was Reckless Driving under Virginia Code Section 46.2-862.  He was alleged to have been driving his sports car at 105 mph in a 55 mph zone on the I-495 beltway in Fairfax County.  In Virginia, a person driving just 20 mph above the posted speed limit or at a speed of 81 mph or greater can be charged with this crime.  The punishment can be up to 12 months in jail, a $2500.00 fine, and a 6 month loss of his privilege to drive in Virginia.  What many people do not realize is that a person does not need to drive “recklessly” – switching lanes, tailgating, swerving, or squealing tires- to be charged with Reckless Driving under Virginia law.  All that is required is speed.

Tonight, Jayson Werth is like many other people in Northern Virginia and Maryland.  More than 2,000 people have come to my law firm for help with the criminal charge of Reckless Driving in Fairfax County.  Many people don’t understand how the simple act of speeding could cause them to go to jail and create a permanent criminal conviction that will stay on their record forever and stay on their DMV record for 11 years.  Their bewilderment is accentuated by the fact that most acts of speeding in surrounding states like Maryland, Pennsylvania, and New Jersey, would only result in a high fine and may not even require a court appearance.  But in Fairfax County, Loudoun County, and Prince William County a reckless driving charge with speeds above 90 mph usually results in a jail sentence of 1 day in jail for each mph higher than 90.  The law applies to everyone, including baseball heroes.

There is hope for Jayson Werth though.  The Virginia court system allows for Jayson Werth to appeal his Reckless Driving conviction and jail sentence to a jury.  That is because it would be a violation of the Constitution to send a person to jail without the opportunity to present their case before a jury of his or her peers.  The trial is de novo, or brand new, and requires the prosecution to prove its case beyond a reasonable doubt a second time.  The punishment also gets erased as well as the  finding of guilt.  In a new trial before a jury of men and women, Jayson Werth hopes to get a better result.  The risk he faces is that the the jury, if they find his actions to be illegal and dangerous, can choose to punish him for as much as 12 months in jail, which is obviously longer than a 10 day jail sentence.

Our law firm has helped many people that have faced situations similar to Jayson Werth’s Reckless Driving charge.  Even at speeds that are alleged to be above 100 mph there are sometimes valid defenses that can shed a great deal of doubt on the evidence presented by the Commonwealth Attorney.  Police officers may not always follow correct procedure for calibrating their instruments or may not have used their LIDAR or radar device properly when assessing the speed of a car.  The LIDAR and radar devices may not be calibrated and tested as required by law and the speed that is alleged can be wrong.  That is why Reckless Driving cases in Virginia often need to be challenged before a judge, and if necessary, a jury.

I hope that Jayson Werth, as well as any other person who is charged with Reckless Driving in Fairfax, finds a jury that will understand that speeding does not always equate with recklessness and that the jury makes a finding that will allow him to go home to his family.   I am confident that Mr. Werth has already learned,  just like patience at home plate, patience on the highway can get himself and his many fans home safely.

Alex Gordon  Fairfax Criminal Defense Lawyer

Alex Gordon
Fairfax Criminal Defense Lawyer


Alex Gordon is a criminal defense attorney that has more than 15 years of experience representing people in Fairfax County, Loudoun County, and Prince William County.  He has been practicing law for more han 20 years and is  member of the Florida, Georgia, and the Virginia State Bar.  The Gordon Law Firm has helped more than 2000 people accused of Reckless Driving in Virginia.


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