Virginia Criminal Lawyer

What Criminal Activity Triggers Inadmissability of a Foreign National for Visas and Entry Into the Country?

2011-11-15T14:30:11Z

An individual can be barred from extending their status, changing their status, applying for permanent residency or entering the United States if they are outside the United States for any of the following:

Conviction for, or admits to having committed, or admits to acts comprising essential elements of a crime of moral turpitude.
Conviction for, or admits to having committed, or admits to acts comprising a violation of law relating to a controlled dangerous substance.

There are exceptions to the grounds for inadmissability. These exceptions include crimes involving moral turpitude where the maximum possible sentence is less than one year and the sentence imposed is less than six months. A single offense for simple possession of 30 grams or less of marijuana is also not grounds for inadmissability. Of particular concern are the crimes of "moral turpitude". Moral turpitude refers generally to conduct that shocks the public conscience. Offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. An experienced Virginia criminal defense attorney and Virginia DUI lawyer can negotiate a plea with the State that eliminates charges involving "moral turpitude" in exchange for guilty pleas for crimes which carry less or no potential for inadmissability. In addition, a skilled Virginia criminal defense attorney and Virginia DUI lawyer can often argue successfully for a probation before judgment or stet disposition that allows a defendant to avoid a criminal conviction and the resulting immigration consequences.

Criminal Offenses and Their Consequences on Immigration Status

2011-11-15T14:21:07Z

An individual's immigration status or ability to obtain status can be damaged by a criminal conviction. Criminal offenses and their affect on immigration status can be placed into one of three main categories:

Deportability Grounds - An individual who is in the United States pursuant to a valid lawful status is subject to deportation.
Inadmissability Grounds - An individual can be barred from extending their status, changing their status, applying for permanent residency or entering the United States if they are outside the United States. If an individual entered the United States without inspection, he or she will be deemed inadmissible and placed in removal proceedings.
Aggravated Felonies - If an individual is convicted for an aggravated felony he or she can be deported. An aggravated felony conviction can also prevent an individual from changing status, becoming a resident or applying for relief from removal. In some instances misdemeanors are considered aggravated felonies.

Impact on immigration status is not limited to these three categories. Individuals convicted of a particularly serious crime may be barred from applying for asylum. An individual convicted of two misdemeanors or a felony can be barred from extending or applying for temporary protected status. In addition, criminal conduct can bar an individual from applying for citizenship because it requires a showing of good moral character within the five years proceeding the application. If you our someone you know has been charged with a crime that could effect immigration status contact Portner & Shure.

What Crimes Trigger Deportability of a Foreign National?

2011-11-15T14:04:12Z

An individual who is in the United States pursuant to a valid lawful status is subject to deportation if a criminal arrest results in the following:

A conviction for a single crime involving moral turpitude that was committed within five years of admission and is punishable by imprisonment of at least one year.
Convictions for two or more crimes involving moral turpitude not arising from a single scheme of misconduct.
Conviction for an aggravated felony at any time after admission into the United States.
A conviction for failing to register as a sex offender.
A conviction for a violation of a federal, state, or foreign law or regulation relating to a controlled substance.
A conviction relating to a firearm or other destructive device.
A conviction for an offense related to espionage, sabotage or treason.
A conviction under the Military Selective Service Act or Trading with the Enemy Act.
A conviction for high speed flight from an immigration checkpoint.
A conviction for an offense related to launching an expedition against a country with which the United States is at peace.
A conviction for a crime of domestic violence, stalking, child abuse, child neglect or child abandonment.
A conviction relating to human trafficking.

]]> Violations of protective orders related to violence or harassment may also trigger deportability. Of particular concern are the crimes of "moral turpitude". Moral turpitude refers generally to conduct that shocks the public conscience. Offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. An experienced Virginia criminal defense attorney and Virginia DUI lawyer can negotiate a plea with the State that eliminates charges involving "moral turpitude" in exchange for guilty pleas for crimes which carry less or no potential for deportability. In addition, a skilled Virginia criminal defense attorney and Virginia DUI lawyer can often argue successfully for a probation before judgment or stet disposition that allows a defendant to avoid a criminal conviction.

Top Ten Mistakes to Avoid in a Virginia DUI / DWI Case

2011-09-16T20:53:00Z

Top Ten Mistakes to Avoid in a Virginia DUI / DWI Case

1. Not Hiring a DUI Attorney Immediately - DUI / DWI in Virginia is a criminal charge and carries with it the possibility of serious jail time. Further, a DUI conviction results in losing your right to drive for a minimum of one year. A competent Virginia DUI attorney should understand the rules of law and evidence. In countless cases the attorneys at Portner & Shure have proven to Judges, through their understanding of the law, that our clients cases should be dismissed under the law. Hire a competent Virginia DUI / DWI attorney immediately after your arrest.

2. Trying to Save a Buck - You know the old saying, you get what you pay for. This applies in all aspects of life. Why in the world anyone would hire a cheap DUI attorney when the possibilities of jail time, loss of driving privileges, and a permanent record are at stake, amazes me. Don't try to save in a Virginia DUI / DWI case.

3. Understanding the Impact of More Than One DUI Conviction - After your second offense, there is a mandatory minimum $500 fine, driver's license revocation for three years, and possible jail time up to one year. If it is within five years of your first offense, there is a mandatory 20 days in jail?10 days if within 10 years of your first offense.

For your third DUI offense, there is a mandatory $1,000 minimum fine and an indefinite license revocation. You will be prosecuted for a Class 6 felony. If it's within five years of your previous DUI, there is a mandatory six-month jail term. Within 10 years, the mandatory jail term is 90 days. Either way, you will also permanently forfeit your vehicle, if you are the sole owner.

When your blood alcohol concentration is 0.2% or higher when you are arrested, your penalty will include a mandatory minimum 10-day jail sentence in addition to your other penalties. The second such offense within 10 years carries a mandatory minimum jail sentence of 20 days in addition to the other penalties.

If you have two drunk driving convictions within 10 years, you must install an ignition interlock system on all vehicles you own either solely or with another person. If you fail to do so, you face a possible Class 1 misdemeanor charge and risk having your license revoked again for one year. Plus, you may be put into jail for up to one year and be assessed a $2,500 fine.

]]> 4. Understanding a DUI / DWI Arrest in Virginia - Yes, it's a traffic offense. However, its also considered a criminal charge and a conviction that will appear on your permanent record. Hence, it could affect your future employment, as well as your immigration status, and insurance rates. The conviction remains on your record and cannot be removed. Fees you may incur from a Virginia DUI include attorneys fees, Court costs, and fines, alcohol counseling, insurance rate increases, license reinstatement fees, car storage and towing costs.

5. Understanding the DUI Law on Drivers Under 21 - has a Zero Tolerance law for drivers under 21 years old. Anyone under 21 caught driving with as little as a 0.02% BAC can face a one year license suspension and either 50 hours of community service or a minimum fine of $500. Those under 21 who drive under the influence of drugs or with a BAC of 0.08% or greater are subject to the same penalties as those over 21, listed above.

6. Negotiating with the Prosecutor - In many counties, the Commonwealth Attorney may not be willing to speak with you about your DUI charge. If they are, The Commonwealth's Attorney will attempt to talk to you about your Virginia DUI case. In doing so he may elicit further statements from you which in fact hurt your case. The prosecutor is attempting to gain a conviction, or a guilty finding, so talking to the prosecutor without an attorney is simply a bad idea. Furthermore, the Commonwealth is often covering up its own weaknesses when talking to defendants. It won't mention that its police officer, for example, is unavailable or left the force. Instead, the Commonwealth will quickly try to secure a plea in these Maryland DUI cases.

7. Procrastinating - Hire a Virginia DUI attorney immediately. This allows the attorney To begin working on a defense immediately. The Virginia DUI lawyer can begin to work on the things you will need in Court to show that you should not be found guilty, or that you have strong mitigating circumstances that should allow for leniency.

8. Hiring an Attorney Who Has Done Less Than 100 Virginia DUI / DWI's - Experience matters. The attorneys at Portner & Shure have done hundreds of Virginia DUIs. As a result, they have seen it all, know many of the Judges and their tendencies, and as a result can help you design your DUI defense to the actual jurisdiction you appear in.

9. Assuming that all DUI Stops are the Same- Many cases do not hinge on whether the driver had alcohol in their system, but on whether the police had the right to pull the driver over in the first place. It is important that an effective Virginia DUI attorney understand what the Commonwealth needs, in order to show probable cause to pull the car over, or in the cases of accidents, who was driving, and when the driving actually occurred. If the Commonwealth fails to do these things, then the case can be dismissed before getting to the issue of whether or not the driver had alcohol in their system.

10. Assuming There is a General Rule on Taking the Breath Test and Field Sobriety Test - The impact of taking the breath test may depend on what number DUI offense this is, or how intoxicated they actually are. In Virginia it is a misdemeanor to refuse to take a breath test. Penalties vary with each of the above, as does the proper legal advice in these situations.

Jalen Rose is Sentenced to Twenty Days in Jail for Drinking and Driving

2011-08-15T13:57:00Z

Earlier this month basketball star and ESPN analyst Jalen Rose was sentenced to twenty days in jail for a March drunken-driving crash near Detroit. Rose pled guilty and admitted to the judge that he drank six martinis before crashing his SUV on a snowy road late in the evening. Even though several prominent members of the Detroit community came out in support of Rose and despite the fact that the prosecutor did not recommend jail time, the judge sentenced Rose to twenty days in jail.

Rose's attorneys were beside themselves. One of his attorneys commented that the judge was legislating from the bench and cited his client's donations to charity and service to the community, including starting inner city schools. The judge, who has a reputation for coming down hard on drunk drivers lectured Rose stating, "The one thing that people never want...that they will hire expensive lawyers to avoid...is jail time. That's why I believe it is the right punishment." Rose's actual sentence is 92 days in jail and one years probation, but the judge suspended 72 days of the sentence. The maximum penalty for the charge is 93 days, but Rose received credit for the night he spent in jail after the crash.

]]> I am, to say the least, surprised by Rose's sentence. This was his first offense and his blood alcohol content was .12. He did crash his car but not into another vehicle. He did not injure anyone. Every state and, for the most part, jurisdiction has certain tendencies when sentencing defendants convicted of drinking and driving. In Maryland, I would be extremely surprised if a person convicted under the same fact pattern was sentenced to even a day in jail. Admittedly, I am ignorant as to the sentence Michigan courts typically hand down to a first time drinking and driving offender. The articles I have read clearly indicate that this sentence was over the top. What were the reasons for such a harsh sentence? I think one obvious reason is that Rose encountered a judge who is particularly hard on drunk drivers. However, something else struck me a troublesome. Rose told the judge that he had six martinis that night. You had what? I am assuming they were Grey Goose. No self respecting member of the "Fab Five" would have it any other way. Seriously Jalen, you just told the judge that you had six martinis. I have heard of a three martini lunch but after six martinis your not going back to work. When you plead guilty to a DUI or DWI there is absolutely no reason to tell the judge how much or what you had to drink. If you tell the judge you had two light beers you look like a liar and if you tell the judge you had six martinis you look like an indifferent drunk who needs to be made an example of. The judge commented that people hire expensive attorneys to avoid jail time and that is why she sentenced him to twenty days. Any attorney that lets his or her client admit to drinking six martinis before getting behind the wheel should refund their fee to the client.

Falsely Accused of Shoplifting

2011-07-28T14:45:56Z

As Virginia criminal defense attorneys, Portner & Shure has defended its fair share of clients accused of shoplifting. Often a client accused of theft did commit the crime. The prosecutor may have evidence such as video tape and/or testimony from store employees. Many times clients who are arrested for shoplifting avoid conviction because the prosecutor fails to request the presence of a necessary witness or, more than likely, the witness necessary to the Commonwealth's case just doesn't feel like coming to court. Loss prevention officers, who are employed by stores to catch shoplifters, have a high turnover rate. Once the loss prevention officer is no longer employed by a store, the chance that they will show up to a shoplifting trial is highly unlikely.

]]> Sometimes stores can be over zealous in their vigilance against shoplifters, as was the case in a Walmart in Sterling, Virginia. A Loudoun County jury has awarded $282,000.00 to a young Hispanic man who alleged security guards at the store accosted him and falsely accused him of shoplifting. The 20 year-old man and his friend testified that they were followed by a security guard as soon as they entered the store. They walked through several departments and placed a sweatshirt in their shopping cart. Finally, after the security guard's constant surveillance became overwhelming, the two young Hispanic males abandoned the shopping cart and exited the store. As they attempted to leave the store, two guards and the assistant manager confronted the two young men. The young men's arms were placed behind their backs and their faces were pushed into the storefront window while a crown of customers watched. Police were called and the accused men were searched. Nothing was found. The two men were allowed to leave but not until they signed an agreement that they would not return to the store.

One of the men, who grew up in Sterling, Virginia and whose mother is a deputy sheriff, filed suit alleging defamation per se, false imprisonment, assault and battery and two counts of violation of his civil rights. Discovery revealed that the two Hispanic men were under constant video surveillance as soon as they entered the store. At trial, he young man's attorney argued that the two men were targeted because of the color of their skin. The jury found in favor of the plaintiff on the counts of false imprisonment and assault an battery. The friend has filed suit as well but his case remains in the discovery stage. In other shoplifting cases we have seen the accused is held in a backroom for questioning. Often confused, some criminal defendants give confessions in exchange for being released from custody. While the confession may be excluded, this type of admission is a mistake. If you are held for questioning ask for an attorney and never confess to a crime you didn't commit. If you or someone you know has been arrested for shoplifting or falsely accused of a crime contact our Virginia criminal defense attorneys at Portner & Shure.

Should Virginia Require Translation of DUI-Test Consent?

2011-07-01T16:04:30Z

German Marquez, is a Salvadorian who was charged with failing to submit to a breath test in New Jersey. He successfully appealed his conviction in the state Supreme Court because he was read the statement warning him of the penalties he faced if he did not submit to a breath test only in English. The ruling of the state Supreme Court essentially levels the playing field for non-English speaking residents to that of English speakers. Until now, in Maryland and Virginia, drivers are deemed as having given implied consent to a breath test as a condition of being on the road. The American Civil Liberty Union feels that the prior lack of a translation policy meant non-English speakers were being held to a "higher standard" of being expected to memorize what is in the driver's manual. The ACLU has compared the need for translation of consent to a breath test to the need of translating Miranda rights and court proceedings, which the state's courts do provide.

]]> In New Jersey, drivers who don't speak English must be informed of the consequences of refusing to take an alcohol breath test in a language they understand. In the 4-3 decision, Chief Justice Rabner wrote, "In essence, reading the standard statement to motorists in a language they do not speak is akin to not reading the statement at all." As of now, Maryland and Virginia don't require translations of DUI-Test Consent. The New Jersey ruling will hopefully lead to a quick change in Maryland and Virginia.

Using the language a person speaks benefits not only that individual person but the police work as well. If you have been pulled over for a DUI or other traffic violations and are a non- English speaker you should immediately contact your attorney and protect your rights. Simply because you speak Spanish, Chinese or Korean doesn't mean you should be held to a higher standard while driving on the road. The police department should have DUI consent forms in Spanish, Korean and Chinese readily available.

Police Deception and the Waiver of Miranda Rights

2011-06-24T16:13:09Z

Possibly the most highly publicized process in criminal procedure is the reading of Miranda rights to an individual accused of a criminal act. Surely, if you have seen one of the many cop-dramas that currently are being aired on television, you have witnessed some form of a reenactment of the reading of Miranda rights.

Miranda rights held by the accused are the right to remain silent, the right to an attorney and to have an attorney present during questioning, as well as an advisement that any statements made going forward can be used against the accused in a court of law. For the accused to waive their Miranda rights, the law requires the waiver to made in a voluntary, knowing and in an intelligent manner. Determining whether a valid waiver has been made will depend on all the circumstances surrounding the waiver.

]]> Among the considerations in finding a waiver to be valid are the mental capacity of the accused to understand the rights being waived, and whether the waiver was made freely and not caused by police coercion. It is well settled law that actions by police causing the accused to believe that the statements they make will be kept confidential, or won't be used against them, are considered police coercion, and will invalidate a waiver of Miranda rights.

If you have been charged with a criminal act and need aggressive and thorough Virgina criminal defense representation please contact Portner & Shure.

Considerations In Determineing Whether a Stop and Frisk Is Permissible

2011-06-24T16:08:55Z

A common misconception is that law enforcement officials are entitled to stop and question citizens without any basis or reason for doing so. In reality, a set of firm legal guidelines are in place that govern whether or not an officer is permitted to stop and frisk nearby pedestrians.

For a police officer to stop someone, the officer must have a reasonable belief that a crime is either being committed or about to be committed. While this standard falls well below the probable cause an officer must have to arrest or search a suspect, an officer must be able to identify and articulate specific facts that explain their reasonable belief that the person stopped has been engaged in criminal activity. Circumstances considered in justifying an officer's reasonable belief are whether an individual is near where a crime was recently reported, whether the individual matches a suspect description, whether or not the individual attempts to flee, and whether the individual exhibits nervous or agitated behavior upon being stopped. It is important to note that while an officer may stop an individual based upon a reasonable belief, the individual being stopped is not required to respond to the officer and may only be arrested if their responses or actions create probable cause for arrest.

]]> Similarly, an officer may frisk an individual if they have a reasonable belief, supported by articulable facts, that the individual stopped may be armed or poses a threat to the officer. Justifications commonly used to support a reasonable belief for a frisk are physical indications that a weapon is being concealed, nervous or agitated behavior, or the size and number of suspects being stopped. It is important to remember that the officer must either suspect the person is carrying a gun or feel physically threatened in order to conduct a frisk. For example, suspicion that an individual stopped is in possession of narcotics is not alone sufficient to justify a frisk, unless there is an articulable fear that the individual is armed or poses a physical threat.

The law firm of Portner & Shure has many years of experience representing criminal defendants in both Maryland and Virginia.

If you have been charged with a crime or believe that you have been charged with a crime as the result of an illegal stop or frisk, please contact our Virginia criminal defense attorneys.

Virginia DUI or Simply Sleeping It Off?

2011-02-02T15:39:07Z

A common question that comes up in Virginia regarding the DUI law, is what happens if someone is simply "sleeping it off" in their car. Can they be convicted for DUI under Virginia Code Section 18.2-266? Does the car have to be running? What if it is cold outside and the heat is on? What about the radio?

]]> Section 18.2-266 states in part that :

"It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article..."

The Supreme Court of Virginia recently took up the issue as to what "operate" actually means. At the center of the case, is a question as to whether someone is operating a vehicle when their key is in the ignition and it has been turned to the point where the radio is operable, but the engine has not been started. Although there was a dissenting opinion, the Supreme Court of Virginia concluded that while the defendant's actions in turning the key to the "accessory" point did not alone activate the motor or "motive power", the action of turning the key from the off position, in and of itself was an action that began the sequence of activation. The Court concluded that this action made the defendant the "operator" of the vehicle within the meaning of Section 18.2-266. As result, despite the fact that the vehicle was not moving, and the engine was off, the defendant's conviction for "drunk driving" was upheld.

If you or someone you know has been charged with a driving under the influence or if you would like more information on driving under the influence please contact Portner & Shure. Our Virginia criminal defense lawyers are available to provide you with a free legal consultation.