FREQUENTLY ASKED QUESTIONS
Legal Questions Clients Frequently Ask
QUESTION: I have a valid license in another state, but I got a ticket for Driving on a Suspended License in Virginia. How can I be suspended if I am licensed elsewhere?
ANSWER: Regardless of where you are licensed, if your privilege to drive in Virginia gets suspended for any reason (i.e. an unpaid ticket, unpaid court fees, a DWI, etc.), even once that suspension is up, you will continue to be suspended in Virginia until you pay Virginia DMV the proper reinstatement fee.
A conviction for that will cause an additional suspension on your privilege to drive in Virginia, as well as fines and possible jail time.
QUESTION: Reckless driving by speed is the same as a speeding ticket, right?
ANSWER: WRONG. Reckless driving, either generally or by speed, is a misdemeanor charge, not an infraction. It carries six demerit points on your license. Additionally, it stays on your driving transcript for eleven years, but on your criminal record forever.
Additionally, it can cost you a security clearance and forever prevent you from obtaining one or from obtaining a commercial driver’s license.
QUESTION: I have a good record, do I really need an attorney for my reckless driving charge?
ANSWER: Absolutely. You don’t want to risk a criminal record for the rest of your life.
QUESTION: Is there any way to get a conviction taken off my record?
ANSWER: No, the only things that are eligible for expungement in Virginia are charges that are nolle prossed or dismissed.
QUESTION: This is my first time being charged with petty larceny. The officer said I don’t need a lawyer because I can do the deferred finding and not have a conviction. Is that true?
ANSWER: Sure, you may be eligible to do the program, but having a lawyer go to court with you to ensure that the Commonwealth can prove the case against you is the only way to truly protect your rights and ensure that the program is your best option.
This is also true of first offenses for possession of marijuana.
QUESTION: I am charged with domestic assault, but the victim wants the charges dropped. Why do I need a lawyer? Won’t this case just go away?
ANSWER: No, because in any assault cases, it is not up to the victim whether the charges are dropped or the case goes forward. The case is titled Commonwealth of Virginia v. Defendant, not Victim v. Defendant. The victim is merely a witness, along with any officers who responded to the scene. Only the Commonwealth’s attorney can dismiss charges against a defendant prior to trial. Having a defense attorney on your side significantly increases the likelihood of that happening.
QUESTION: I went to court without a lawyer and was convicted. Is there anything I can do to remedy this?
ANSWER: Yes, so long as not more than ten days have passed since the conviction. In Virginia, a defendant has exactly ten days to appeal a finding in General District Court. Once an appeal is noted, a new court date will be selected, it will take place in Circuit Court, and up there, the accused will be entitled to a trial by judge or by jury. An attorney can explain this process to you.
QUESTION: I missed my court date and was convicted in my absence. Is appealing my only option?
ANSWER: No, you have thirty days in those circumstances to file a motion to rehear. If this is granted, the conviction will be vacated, and then the judge will consider the evidence and the accused will have an opportunity to put on a defense.
FAQs: Do I Need An Attorney?
I am facing a divorce, should I hire an Attorney?
Yes, because the steps involved in obtaining an uncontested divorce can be tricky and misleading. And experienced attorney, familiar with the Northern Virginia Circuit Courts will be able to make the experience much smoother. That attorney will draft the divorce complaint and divorce decree and ensure that every requirement is met before going to court.
Why would I want to hire a Criminal Defense Attorney?
When a person is charged with a crime, he is innocent until proven guilty. In order to be found guilty, the Commonwealth has to prove, beyond a reasonable doubt, every element of the crime. An experienced attorney knows how to assess each element of the crime and examine the Commonwealth’s evidence in order to determine whether or not the Commonwealth can meet that burden. If the Commonwealth cannot do that, a defense attorney can help you achieve either a reduction in charges or a complete dismissal.
How do I know if I need a Criminal Defense Attorney?
It depends on what sort of crime you are accused of committing. While a minor traffic infraction such as expired registration does not carry a severe punishment or any chance of jail time, a traffic offense such as reckless driving carries the possibility of jail time and/or loss of license. For any charge involving the potential for jail time or high fines, you should hire an attorney before appearing in court.
Can a Criminal Defense Attorney guarantee the outcome of my case?
No, an attorney cannot guarantee the outcome of any case. However, the Smith Firm, PLLC, can guarantee that you will have a dedicated and honest attorney fighting for your rights every step of the way. Furthermore, hiring an attorney will guarantee that you have an advocate on your side who will explain the pros and cons of every possible outcome and help you make an intelligent decision based on the evidence.
FAQs: How An Attorney Can Help You
While law may not allow for a reduction in jail time required for some offenses, an attorney can negotiate with a prosecutor to amend the charge to a less serious offense that may not have the mandatory minimum jail sentences. This could result in less jail time or even no jail time in some instances. It is important when facing criminal charges that a defendant speak to an attorney as soon as possible so that he can be properly prepared well in advance of a court date.
When convicted of a misdemeanor in Virginia and sentenced to jail time, a defendant receives additional credit for every day served. He gets a credit of a day for every day served. What that means is that if a defendant is sentenced to 10 days in jail, he will only actually serve five days. Obviously, this is a very significant distinction and a point to consider when contemplating accepting a plea deal that involves jail time.
Many people know this and are familiar with this process. However, there are some exceptions to this rule. Certain crimes in Virginia carry with them a requirement of a mandatory minimum jail sentences. When a crime carries a mandatory minimum, no additional credit is given for each day served. If there is a mandatory minimum requirement of 10 days, then that defendant must serve all 10 days, without exception.
There is no wiggle room to negotiate that requirement, a prosecutor cannot offer a plea deal that involves pleading guilty to the charge that carries a mandatory minimum, but then only requesting less jail time, and a judge cannot grant any leniency when sentencing anyone for that conviction. Additionally, most judges throughout Northern Virginia will not allow a defendant to serve a mandatory minimum jail sentence broken up over weekends.
Some of the more common examples of misdemeanors that have mandatory minimum jail sentences are: DWI second offense within five years (20 days), DWI second offense within ten years (10 days), DWI with a BAC between .15% and .19% (five days), DWI with a BAC above .20% (10 days), and Driving on Suspended third offense (10 days).
Because a conviction for those charges requires a mandatory minimum jail sentence, it is not possible to negotiate less jail time than what the statute requires. However, an attorney, familiar with Virginia laws will know this well in advance of appearing in court will take the time to discuss this with a defendant so that he can be prepared well in advance of trial.
FAQs: Advice From A Virginia Lawyer
People often ask me, what is the best advice you can give me if I ever get into trouble? I always answer with a very definitive, “Shut your mouth.” It’s that simple. Quit talking.
People often, mistakenly, believe that the best thing they can do for themselves during an encounter with the police is to be forthright, quick to answer any and all questions the police may ask, and willingly offer up more information than the police are even asking for. Not only is that simply untrue, more often than not, those statements are often used to seal the nail in the coffin of a criminal conviction.
Best advice? Keep your mouth shut.
Most of us have heard the famous words “anything you say can and will be used against you in a court of law”, but few of us have ever put much thought into what that means. Essentially, it means that if you open your mouth to police, regardless of what you say, those statements may be admissible at a later trial in an attempt to convict you.
For example, if an officer pulls you over on suspicion of Driving While Intoxicated and he asks you if you have been drinking, and you, hoping that honesty and cooperation will work out to your benefit, say “I had two beers with dinner,” then you have just admitted to drinking alcohol prior to getting behind the wheel. Forget the legal dramas you watch on television where the defense attorney jumps up screaming “OBJECTION, Your Honor! Hearsay!” Admissions by a criminal defendant, i.e. admitting to a few drinks when there is suspicion of an alcohol related crime, are not protected by the rules of hearsay.
Therefore, in a situation like the one just described, if you admit to a few drinks, it WILL come in as evidence of intoxication and the Commonwealth’s Attorney WILL use it in an attempt to prove your guilt.
So now comes the logical question of, well what do I say? Don’t get me wrong, I’m not advocating lying to the police, and I am certainly not advocating being rude or attempting to obstruct justice. What I am advocating is that you know your rights, and more importantly, that you know how to protect them.
You have the right to remain silent because anything you say can and will be used against you in a court of law. That means if the police ask you questions, other than your name and other identifying information, you do not have to answer those questions. Instead, tell the officer, politely, that you wish to speak to your attorney.