June 14, 2017
Driving After Illegally Consuming Alcohol (“Baby DWI”)
Most everyone knows that the legal drinking age is 21 years old. Most people also know that you can be convicted of Driving While Intoxicated if your blood alcohol concentration (BAC) is at least .08 percent while driving.
Most people do not know that, if you’re under 21 years old, and have a BAC of .02-.07 while driving, then you can be convicted of what some attorneys call a “baby DWI.” A “baby DWI” is the crime of Driving After Illegally Consuming Alcohol, and is codified in Virginia Code section 18.2-266.1. There is a common misconception by people charged with violating 18.2-266.1 that, because people refer to the offense as “baby,” that the charge is “not a big deal.” This couldn’t be further from the truth.
In fact, a violation of 18.2-266.1 is a class 1 misdemeanor like regular DWIs, petit larcenies, assaults and batteries, etc. Therefore, violating 18.2-266.1 can lead to 12 months incarceration. Additionally, a conviction for violating 18.2-266.1 results in a driver’s license suspension of 1 year. If convicted of a first-offense DWI, the offender’s driver’s license is also suspended for 1 year.
If convicted of violating 18.2-266.1, the offender must choose between completing at least 50 hours of community service or paying a fine of at least $500.00. For a first-offense DWI, the law only requires at least a $250.00 fine. Therefore, the minimum fine is actually less for an actual first-offense DWI, than for a “baby DWI.”
People charged with violating 18.2-266.1 usually have a hard time understanding why they are charged with a “baby DWI” if their BAC was less than .08 percent. This is because a violation of 18.2-266.1 does not require intoxication. Look at the title of this article again. 18.2-266.1 is for driving after illegally (underage) consuming alcohol, not driving while intoxicated from alcohol.
Now, if an underage person has a BAC of .08 percent or more while driving, that person will likely be charged with a regular DWI. Again, a DWI conviction requires proof of intoxication, while a “baby DWI” does not.
Both DWI and a violation of 18.2-266.1 are very serious charges, and should be treated as such. Don’t downplay the severity of a “baby DWI” because “at least it’s not a regular DWI.”
September 28, 2016
Cravens & Noll PC has received a number of inquiries lately about Virginia marijuana laws. While marijuana laws in Virginia are changing swiftly, the commonwealth still does not recognize medical marijuana. Simple possession of less than two ounces of cannabis can result in up to 30 days in jail and/or a $500 fine. Presently, the penalty for the sale of five pounds (or more) is five to 30 years in state prison.
Sale Up to .5 oz.: Class 1 misdemeanor; .5 oz.-5 lbs.: Class 5 felony; Over 5 lbs.: 5-30 yrs.; Proof that person gave drug only as an accommodation not for remuneration or to induce him to become addicted shall be guilty of Class 1 misdemeanor
Federal Marijuana Laws
This is where the law gets interesting. We have some states have legalizing recreational and medical use of marijuana, but it is still illegal under federal laws. Federal laws prohibit possession of any amount of marijuana. A first conviction is punishable by up to one year in jail and a $1,000 fine. A second possession offense carries a minimum 15 day incarceration, with a maximum of two years in jail and a maximum $2,500 fine. A third and subsequent offense has a minimum jail time of 90 days with a maximum of three years and $5,000 fine.
Sale and cultivation of marijuana carry even higher fines and punishment under federal law. First offenses can put someone in jail for five years, and large amounts can put someone in jail for life, with a one million dollar fine.
Virginia Marijuana Possession Laws
Possession of any amount of marijuana in Virginia is a misdemeanor. Jail time for a first possession offense can be up to 30 days, and comes with a maximum $500 fine. Any subsequent offenses are Class 1 misdemeanors.
Selling Marijuana in Virginia
Selling marijuana in Virginia is considered a worse crime because it enables others to break the law as well. Sale of up to half an ounce marijuana in Virginia is an automatic Class 1 misdemeanor. Sale of up to 5lbs of marijuana is Class 5 felony. Anything sale over 5lbs comes with a 5-30 year jail sentence. Selling within 1000 yards of a school to a minor comes with much harsher penalties
However, giving someone marijuana is not as serious of an offense as selling marijuana. In Virginia, if the defendant can prove that they gave the alleged purchaser the marijuana for free, the defendant is only guilty of a Class 1 misdemeanor.
SB 701 Concerns cannabidiol oil and THC-A oil; it permits pharmaceutical processors to manufacture and provide. Additionally it authorizes a pharmaceutical processor, after obtaining a permit from the Board of Pharmacy (the Board) and under the supervision of a licensed pharmacist, to manufacture and provide cannabidiol oil and THC-A oil to be used for the treatment of intractable epilepsy. Should bill should pass and not be vetoed in 2017 session.
If you would like to know more about Virginia marijuana laws, and how they intersect with federal laws, feel free to contact Cravens & Noll for a free consultation.
September 10, 2013
Two years ago, the Virginia Department of Criminal Justice Services took steps to ensure that fewer Virginians will be misidentified as criminal suspects in eyewitness lineups. The agency acted to limit misidentification primarily because the people of Virginia can only truly have faith in the criminal justice system if it prosecutes individuals fairly and if prosecutions are informed by accurate information. When an individual’s criminal defense is unjustly influenced by eyewitness misidentification, no one benefits.
Unacceptably, only a few police departments in the whole of Virginia have adopted the agency’s model since it was released two years ago. Out of 144 police departments and law enforcement agencies throughout the state which have written policies on suspect identification, only nine have adopted the low-cost misidentification prevention model. Over 100 more have failed to even write up policies on the issue, even though all law enforcement agencies were instructed to create them by the Virginia General Assembly eight years ago.
Suspect misidentification by eyewitnesses to criminal acts is a serious problem in Virginia. Of the 16 wrongfully convicted men set free by the state in recent years due to DNA evidence that proved their innocence, 13 were misidentified by witnesses in either lineups or photographs prior to their wrongful convictions.
At this point, the model is voluntary. But if police departments continue to fail to implement the model, lawmakers may become compelled to make the model mandatory procedure. Understanding the potential consequences of inaction and yet failing to act on this critical issue is simply unacceptable at this point in time.
Source: Richmond Times-Dispatch, “Many suspect lineups remain flawed across VA,” Frank Green, Aug. 26, 2013
July 2, 2013
Newly released federal data suggests that a disturbing trend has developed in regards to drug arrests in America. The data indicates that in 2010 alone, black Americans were arrested for simple possession and related marijuana charges at rates between three and eight times higher than white Americans were. This data is particularly disturbing given that the rates at which black and white Americans tend to possess and use marijuana are roughly the same.
Federal law only recently began to address the racial disparity in sentencing for cocaine-related offenses. It now seems that reform is needed in other areas of federal drug law enforcement. If a primary goal of the criminal justice system is to be consistent in application and general enforcement of the law, then these statistics strongly indicate that some mechanism within the system is broken and doing a disservice to the system’s larger goals.
After reviewing the data, the American Civil Liberties Union (ACLU) constructed a report analyzing it which was released this month. The lead author of the work is the director of the ACLU’s Criminal Law Reform Project. He recently explained that “We found that in virtually every county in the country, police have wasted taxpayer money enforcing marijuana laws in a racially biased manner.”
As the public’s attitudes toward marijuana shift in favor of legalization in certain contexts, legislators and law enforcement will likely slowly begin to focus away from cracking down on offenses like simple possession. But for many reasons, this shift in focus does not delegitimize the fact that reform is needed urgently. Any time one population is held accountable for criminal activity in far greater numbers than another population similarly engaged in illegal behavior, discrimination threatens the integrity of the system as a whole. For that reason alone, this issue is in need of immediate reform.
Source: The New York Times, “Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests,” Ian Urbina, June 3, 2013
May 16, 2013
Some laws are crystal clear, while others are riddled with nuance and exceptions. When it comes to laws involving intimacy, most crimes are fairly obvious. Adults may legally engage in consensual sexual encounters, provided that both parties are of sound mind and are not related closely by blood. Generally, sex crimes all exist in scenarios that do not meet those specific criteria. However, it is possible that even certain consensual encounters between adults will now be considered criminal in Virginia.
Many educators, legislators and judges are concerned about the increasing number of sexual relationships forming between Virginia’s teachers and students. As a result, the State Crime Commission is even going so far as to study the potential implementation of laws that would prohibit consensual sexual relationships between teachers and students who are aged 18 or older.
The logic behind this proposal is that the power dynamic between educators and students, even if they are no longer minors, makes their sexual relationships inherently unequal. This inequality may potentially breed corrupt teaching practices and cause the students to be taken advantage of.
The Commission will likely weigh this issue over the course of the next several months before making any recommendations to lawmakers. It will hopefully consider not only the best ways to protect students but also the general predictability and consistency of the state’s criminal legal code. When you start to narrow the ability of adults to make their own decisions about who they may and may not be intimate with, you restrict freedom of choice and diminish the concept of personal accountability. Moving in this direction should not be a decision considered lightly.
Source: NBC12.com, “Commission to study toughening child sex laws,” Brent Solomon, May 8, 2013
January 9, 2013
The fact that distracted driving is hazardous is now well understood. As a result of overwhelming evidence that indicates distracted driving plays a role in a significant number of auto accidents, state and federal legislators are under increasing pressure to treat distracted driving behavior as a serious traffic violation.
In Virginia, the state’s crime commission recently endorsed legislation aimed at defining texting while behind the wheel as reckless behavior punishable as a primary offense. While the goals of this legislation may be understandable, punishing texting while driving as a reckless driving primary offense will likely make both prosecuting and defending such behavior challenging.
After all, drivers who may be using their phones behind the wheel for legitimate purposes may be singled out for suspected texting behavior. In order to defend against such accusations, drivers would have to hand over their texting and related phone records which could raise sincere concerns about privacy.
Currently, drivers in Virginia may be punished for texting while driving by being forced to pay a $20 fine, if the texting infraction is a driver’s first related offense. Making this behavior a primary reckless driving offense would make it punishable by up to a year of incarceration and a $2,500 fine.
Motorists should absolutely refrain from distracted driving. However, the proposed reforms to Virginia’s texting while driving laws are extreme and potentially endanger the privacy of law-abiding citizens who are merely accused of texting while driving. The impacts of this proposal should be carefully considered before any action is taken.
Source: CBS News, “Va. crime panel pushes for tougher penalties for texting drivers,” Tracy Sears, Dec. 5, 2012
April 16, 2012
Virginia’s recently-passed ignition interlock law has set off a debate between groups battling drunk driving and those that represent offenders about whether the new law goes too far.
An ignition interlock system works by disabling the car if the driver has been drinking. A car with an installed ignition interlock will not start if the driver blows into an attached Breathalyzer and registers a certain level of alcohol on his or her breath. To discourage a friend from taking the test for the driver, the system requires that the driver blow into the device at random times while the vehicle is in motion.
The new law, which takes effect in July, will require virtually all first time DUI offenders-whether they were highly intoxicated or just slightly over the legal limit-to install ignition interlocks in their cars. The former law only required repeat offenders and those with a blood alcohol level above .14 to install ignition interlocks.
As a result of the new law, about four times the number of people will be required to install ignition interlocks. Each offender will have to pay for the installation, which is not cheap-about $480 for a six-month installation.
Groups like Mothers Against Drunk Driving contend that ignition interlocks reduce repeat offenses. Such groups say that the 274 alcohol-related motorist deaths and 5,500 injures during 2010 warrant the tough measures.
However, public defenders and some lawyers say that the law goes too far. They contend that the new law will encourage more cases to go to trial, taxing an already overburdened court system. In addition, they say that the interlock installation and maintenance fees will disproportionately affect low-income drivers.
Source: “Is Va.’s ignition-interlock rule for first-time DUI offenders too tough?” Justin Jouvenal, The Washington Post, 4/8/12
February 28, 2012
First-time driving under the influence (DUI) offenders could soon be forced to install an ignition interlock system on their cars. The Senate recently passed House Bill 279, which extends current ignition interlock requirements to those who’ve been convicted of only one DUI.
Virginia requires an ignition interlock device for repeat DUI offenders — those who’ve been convicted two or more times. But that may soon change. Based on statistics from the National Highway Transportation Safety Administration (NHTSA), an ignition interlock system could affect nearly 30,000 people in Virginia, at least that was the number of convicted DUI offenders in 2010.
An ignition interlock system essentially disables a car if the driver has been drinking. A car equipped with ignition interlock will not start if the driver blows into the attached Breathalyzer and registers above a 0.02 BAC. The driver will also be required to blow into the device at random intervals while the car is in motion.
If the interlock system does detect alcohol in the driver’s system, after a retest to confirm, the car’s horn will sound and the lights will flash. The ignition interlock system is intended to notify law enforcement that someone is getting behind the wheel despite being impaired.
This is the sixth year in a row that an ignition interlock law has come up in the Virginia legislature. The bill was modified to apply to first-time DUI offenders only if their blood-alcohol concentration was 0.12 or greater. The Senate rejected the change and the bill, as-is, has now passed both the House and the Senate and is headed to Governor McDonnell’s desk.
Source: Loudoun Times, “Senate requires ignition interlocks for drunken drivers” Brian Hill, February 26, 2012
January 31, 2012
By now most have heard about the allegations of sex crimes against former Penn State defensive coach Jerry Sandusky. Many may also be thinking twice about how they judged whether Joe Paterno was also to blame, at least in part, for not doing more to stop the alleged sex abuse.
Sandusky himself faces 40 counts of child sex abuse, stemming from incidents between 1994 to 2009. But Paterno, who passed away from cancer during the course of the release of information and subsequent investigation, was never criminally charged. But, he did lose his job, one that he’d held for over 40 years, as the football coach at Penn State.
As a reminder, it’s a cornerstone of our criminal justice system that one is innocent until proven guilty, something that criminal defense lawyers across the country fight for daily.
Unless you are tried in the court of public opinion, that is. Paterno was considered just as guilty, by many, as if he’d committed the alleged sex crimes himself.
Whenever a sex crime is alleged — including child pornography, rape, incest, statutory rape or an internet-related sex crime — the assistance of an experienced criminal defense attorney cannot be understated. Many are quick to condemn those accused of sex crimes, particularly those involving children, before all the facts are laid out in a court of law.
It is true that children need and deserve to be protected. But it is also true that people need and deserve to be protected from false or overstated accusations. And a civilized society has no room for an intolerance of both the criminal justice system and the presumption of innocence.
November 30, 2011
In Virginia, an arrest for driving under the influence (DUI) means the immediate suspension of your driver’s license. As related to your Virginia driving privileges, you do not have to be convicted of a drunk-driving offense before it is illegal for you to drive, just being arrested triggers an Administrative License Suspension (ALS).
If you are facing your first Virginia DUI charge, the automatic license suspension is for one week. If you refused to take a breath test, your Virginia driver’s license will also be automatically suspended. The penalties for being arrested for drunk driving are immediate; your Richmond DUI defense attorney can further explain the possible additional penalties for conviction of a drunk-driving offense.
You Can Fight the License Suspension. Call an Experienced VA DUI Attorney Right Away!
The Administrative License Suspension is in addition to any penalties that may be ordered if you are convicted for a Virginia DUI and the time period that your license will be administratively suspended increases if you are a repeat DUI offender. For a second DUI offense, the ALS lasts for 60 days or until your case goes to trial, whichever comes first. For a third drunk-driving offense within 10 years, your license will be suspended until your case goes to trial.
Contacting an experienced DUI defense lawyer should be your first step in fighting the charges against you. There may be an opportunity to challenge your arrest for DUI and the Automatic License Suspension. A police officer must have ‘probable cause’ to charge a suspected drunk driver with a DUI. If you are able to successfully challenge the existence of probable cause, you may be able to save your Virginia driving privileges from suspension.
Source: Virginia Department of Motor Vehicles, “Virginia is Tough on Drunk and Drugged Drivers“