Recently in Criminal Procedure Category

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.

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:

1. Deportability Grounds - An individual who is in the United States pursuant to a valid lawful status is subject to deportation.
2. 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.
3. 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.

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.

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.

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.

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. 

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.