Did you know that only an attorney can legally represent you in traffic court? Your parent, spouse, or friend aren’t allowed to. You certainly can speak for yourself, but if you want help in front of the judge, you need to hire an attorney.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. Today I wanted to talk to you about something very simple, that some people don’t understand about court. If you’re not an attorney, you’re not allowed to talk for somebody else in court. That’s the way the laws work in the United States; that in order to speak for someone else, you have to be an attorney.

If you have a traffic case and you want to be able to present something about your case or about you or your driving record, you either need to be able to explain everything to the judge yourself– which you are certainly allowed to do, you can talk for yourself–or you need to hire an attorney to come with you to court, or go for your to court.

I see people quite often come into traffic court with a spouse or a parent or a friend trying to speak on their behalf, and unfortunately, unless that person is a licensed attorney who is licensed to practice in Virginia, they can’t speak for you. That’s just an unfortunate way the laws work. In order to speak on someone’s behalf in court like that you have to be a licensed attorney.

It’s really intended to protect consumers, so you make sure that if you have someone coming to court, if you paid them, that you’re getting someone who knows what they’re doing. That’s really the whole goal of licensure for attorneys. But unfortunately it does have the kind of unintended consequence of surprising people sometimes.

The best rule of thumb is that if you need someone to speak on your behalf, or for you in court, you need to consult with an attorney and hire them to come with you to court. Sometimes we can even take care of the case without you even being there. We can present the argument that you would like to present and explain to the judge what you would like them to hear about your case. If you have a case around Fredericksburg, Stafford, or Spotsylvania, I’d be happy to talk to you about it and see if it’s a case that I could help you with.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Only Attorneys Can Represent You

I write a lot about exercising your rights in traffic stops and how you can refuse things like road-side DWI tests. But does that mean you should be rude to the officer?

NO!! Here’s three reasons to always be polite to them, even if you refuse to do what they ask:

1. Law enforcement officers are just folks like you and me who are trying their best to do their job. Sure, there are some bad apples out there. And some departments have reputations as being particularly tough. But overall, I have a lot of respect for law enforcement personnel. Just like anybody you encounter in your daily life, they deserve respect.

2. The officer has a lot of power in your case. He is usually the person who decides what you are charged with. And he can also put in a good (or bad) word for you with the Commonwealth’s Attorney when the case comes trial. Do you really want to tick off the officer?

3. Many prosecutors and judges take a dim view of defendants who are rude and disrespectful to the officers. Your demeanor with the officer could make a huge difference in the outcome of the case. Being polite won’t get the case dismissed, but being a jerk certainly can make it hard to get a break from the judge.

The reasons could go on, but surely you get the point. I always suggest to NOT allow the officer to search your car if asked. And it usually makes sense to refuse roadside DWI tests. But you certainly should exercise your rights politely.

Photo by pixieclipx

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Be Nice to the Officer!

Did you know that you CAN legally refuse road-side DUI / DWI tests, such as the walk-and-turn test and the handheld breath test? Those tests can significantly hurt your case at court, and it might help your case if you do refuse to perform them. However, in Virginia, you must do the breath test at the station, or else you could be charged with refusal.

Transcription

Hello, I’m Andrew Flusche. I’m a Virginia traffic attorney. Did you know that you don’t have to take the preliminary breath test that’s offered to you at the side of the road if you’re stopped for DUI or DWI?

People in Virginia are very confused about what tests are required of them and not required of them when they’re pulled over for a DUI or DWI. Essentially, the best rule of thumb is this: you do not have to do any tests on the side of the road. So you don’t have to do the physical test the officer asks you to do, and you don’t have to do the preliminary breath test. The little hand-held breath machine, that’s the preliminary breath test. You do not have to do that. So you can legally refuse all those tests.

Now, the test that you do have to do, and the one that gets everyone confused, is if the officer arrests you for DUI or DWI, or driving while drinking underage. Then you do have to take the breath test at the police station or the sheriff’s office. If they take you down to the station and have you sit in front of a big machine with a big tube – it’s kind of on a big desk – you have to take that test or else you could be charged with unreasonable refusal. That could lose you your license for an entire year without the possibility of a restricted license. But in Virginia, you do not have to submit to any testing on the side of the road.

The whole point of those tests on the side of the road is so the officer can determine if you’re intoxicated or not. He’s trying to justify an arrest to take you down to take the test that actually counts at the station. But if you refuse those tests and if there’s not any bad driving behavior, if you’re able to talk clearly and communicate with the officer, it may be hard for him to establish that he has probable cause to arrest you for DUI without those tests. More times than not, those tests are actually going to hurt your case.

Now sometimes, the refusal to do the test itself can be used as a factor. The Supreme Court has said that it can indicate consciousness of guilt or consciousness that you’ve been drinking. But at the same time, if you don’t do the tests, they can’t hurt you more than that that. That’s all that they can do, is indicate that maybe you know that you’re impaired to some degree. But the tests almost always can hurt you. So that’s kind of the problem, and why it makes sense in many cases to refuse to do those tests on the side of the road. You are legally allowed to refuse them and in many cases it makes sense.

Now, that’s not legal advice. Every case depends on the circumstances, but in many cases it does make sense and you’re not obligated to take those tests. So you need to make an informed decision if you’re pulled over for a DUI or DWI, and you need to make an informed decision about what tests you’re going to do or not do.

You don’t have to do the ones on the side of the road. You can refuse those. Politely refuse. Say “No, thank you.” But you do have to do the test at the station or you could be charged with unreasonable refusal.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. You CAN Refuse Road-Side DUI / DWI Tests

A lot of times people want to explain old convictions when they appear in court for a new offense. Can you?

Yes and no. Typical lawyer answer.

If you’re in front of a judge for a traffic or misdemeanor case, your driving record and/or criminal history may come into evidence for sentencing. For sentencing purposes, just about everything is allowed in as long as it’s loosely relevant.

Thus, you’re allowed to explain the nature of a prior offense.

But here’s the problem: the judge probably won’t care.

I don’t mean to be overly cynical, but traffic dockets are busy. The judge has a lot of cases to get through in a short amount of time. They’ll listen, but only to a point.

For the most part, I just don’t think they want to hear why you were speeding two years ago. Heck, they may not even care why you were speeding for the current case! The real questions of interest are:

1. Can the Commonwealth prove that you did it?

2. Does your driving record justify giving you a break?

Most of the time, if your record has tickets on it, the judge doesn’t care to get into the specifics of why they’re there.

With that said, we always want to highlight the good things about your driving record. For example, we can point out how long it’s been since your last moving violation. And we can certainly prevent other mitigating evidence to try to get the judge to give us the best possible outcome.

Photo by Richard Masoner / Cyclelicious

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Can You Explain Old Convictions in Court?

A good friend of mine, Mitchell Goldstein, is holding a FREE consumer seminar down in Caroline County. It will cover topics regarding your house, your business, and protecting yourself from debt collectors. There’s literally something for everyone!

Thursday, January 26
7-8pm
7350 Ladysmith Rd
Ruther Glen, VA

Check out the full details on the flyer here (PDF).

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Free Seminar for Consumers – Jan 26

If you’re charged with Virginia reckless driving, you need to call an attorney. You’re facing a misdemeanor conviction that could possibly cost your driver’s license or jail time. Fortunately, the reckless driving charge might be dismissed or reduced depending upon the facts of your case and your driving record.

Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. If you’ve been charged with reckless driving for speed or reckless driving general, you need to learn about what you’re facing.

That’s a serious charge in Virginia; it’s a class one misdemeanor, which is actually the same level of offense as DUI or DWI. You need to learn about what defenses you have and what possibilities might be on the table for you when you get to court. In a lot of reckless driving cases in Virginia, it’s possible for us to make some headway and get the case reduced or even dismissed depending on the situation that you’re in.

The first thing we do for any reckless driving case if you call me is, we’ll talk about it, we’ll find out the details of your case, where it’s pending, what speed you’re accused of. Or if it’s an accident or a general type reckless driving case, we’ll find out the details of what happened. Then we’ll get your driving record, if you hire me, so we can see what’s on the record and we can see where the case is going to fall as far as your prior record and what you might qualify for in the judge’s eyes.

Then I would get to court early and find out from the officer what he says happened and we’ll find out if he has the evidence to prove the case against you. The officer in speed cases has to be able to essentially prove that he clocked your vehicle, that his equipment was calibrated and accurate, and that his equipment read whatever speed he is alleging at the time. If he can prove that, then that’s the basic case against you. Now, there are a lot of other pieces that he’s got to be able to say in court – for example, that he was wearing his badge and uniform, and a few things like that – but that’s the meat of the case as far as the radar or laser speed determination. Then what we try to do is really negotiate the case with the trooper or the deputy, and with the judge.

In many cases, depending on your record – if you have a good record, not having done driving school before or at least having done it recently – there are a lot of options that we can try to get for you in court. A lot of the judges, if you have a good record, would consider dismissing lower speed cases with you doing driving school, or at least reducing cases a lot of times with you doing driving school and perhaps some community service. So there are a lot of options, even if you’re charged with a higher speed case. I know some attorneys will tell you that if you’re charged with over 90 mph you’re looking at jail time. But those attorneys don’t practice around Fredericksburg primarily, because in the Fredericksburg area (Stafford, Spotsylvania, and King George) just because you’re going a little over 90 mph does not mean you’re looking at jail time. If you’re going over 100 mph, jail time is a concerns for us of course, but over 90mph does not mean all is lost. There are still sometimes a lot of things we can do for you.

So give me a call. We’ll find out about the nature of the case, about your prior record, and I’ll let you know what we can do for you to help.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Virginia Reckless Driving Defense

I’ve written before about fighting calibration certificates in reckless driving by speed cases. The other day in Stafford General District Court, I had a great opportunity to put that into action.

Required notice from the Virginia State Bar:

NOTE THAT CASE RESULTS DEPEND UPON A VARIETY OF FACTORS THAT ARE UNIQUE TO EACH CASE. PREVIOUS RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN A FUTURE CASE THAT I UNDERTAKE.

My client was charged with reckless driving by speed. I got to court early like usual and talked to the trooper to find out what evidence he had against my client.

The trooper could prove that he clocked my client with his radar gun and that the radar read the alleged speed. However, things looked up when I asked to see his tuning fork calibration certificates.

The officers use tuning forks to check their radar for accuracy each day. Under Virginia Code 46.2-882, they must have a valid certificate dated within the past six months.

In this case, the trooper’s certificate looked proper on its face and was dated within the correct time period. However, it was a xerox copy that was blank on the back.

Why does that matter?

The statute requires the Commonwealth to have “a certificate, or a true copy thereof.” Thus, if the certificate is not an original, it has to be a “true copy.”

That term is defined in Virginia Code 8.01-391(B). That statute requires “… that such copy is authenticated as a true copy either by the custodian of said record or by the person to whom said custodian reports, if they are different, and is accompanied by a certificate that such person does in fact have the custody.”

In other words, the copy itself needs some language on it to verify that it’s actually a copy of the original. Simple, right?

This certificate was just a xerox. It didn’t have any language on it from anyone to indicate that the xerox was a duplicate of the original, where the original was kept, etc.

Without that piece of evidence, the Commonwealth couldn’t prove that the trooper’s radar gun was accurate. The judge dismissed the reckless driving charge.

Definitely a great result, and it’s one that most likely wouldn’t happen without having an experienced traffic attorney in your corner.

Photo by U.S. Pacific Fleet

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Great Reckless Driving Result in Stafford

You may have a defense to a possession of marijuana charge, especially if the marijuana wasn’t found on your person.

Transcription

Hello, I’m Andrew Flusche. I practice Virginia traffic and misdemeanor defense. If you’ve been charged with possession of marijuana, there is a lot you need to know about the case, about the charge and the facts, and how I can help you out with that.

In a possession of marijuana case, a lot of times what happens is that somebody gets pulled over for a traffic offense and then somehow the officer suspects marijuana and does a search, finds something (either marijuana or a paraphernalia item with residue in it) and then you end up with a marijuana charge. There are a lot pieces to your case that we need to look at, especially if it’s a case like that.

The first thing is that the officer has to have a legal reason to pull you over. They can’t just pull you over for any reason whatsoever, so it has to be a valid stop. Then if the marijuana or items that they seize were found in the vehicle, they have to have either probable cause to search the vehicle, or they’re going to need consent from you to search the vehicle. So if you didn’t consent then it’s a case where we really to analyze closely whether or not they did have probable cause to initiate a search.

Then of course, the key question is, was there actually something in the car that is marijuana or had marijuana in it or on it.

Then finally, one of the important questions that can really be fertile ground for a defense is: can the Commonwealth really prove that you possessed the items or the marijuana? Just because it’s found in the car with you, does not mean that you were in possession of it. If it’s found on your person, then that’s almost a foregone conclusion that you were in possession. But just because it was in the car does not mean that you were in possession, especially if there were other people in the car, and even more so if somebody else in the car admitted to having some marijuana or some prohibited items.

There is a lot of information for us to go into and a lot of details for us to look at. Depending on the case, it may be a case that we can win based on lack of possession of the items or a bad stop or something like that. Or it may be a case that we can at least help you get reduced down to a first offender outcome, where you do some things and the case is later dismissed. Or perhaps some type of case where there is just a possession of paraphernalia, so you and I can hopefully try to save your driver’s license.

So give me a call, and I would love to talk with you about your case, and you and I can work together to put up the best defense possible.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Defending Virginia Possession of Marijuana Cases

If you were arrested for Virginia DUI / DWI at a check point or road block, we need to talk. These stops are regulated closely, and we may have a defense to the charge.

Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney, and today I wanted to talk to you about DWI and DUI checkpoints or roadblocks. The police have to have a legal reason to pull you over to investigate for a DUI or a DWI. One way that they do this is with checkpoints or roadblocks. The counties around Fredericksburg, Stafford, and Spotsylvania do utilize these techniques.

It’s important to know if you have a defense in this area, because that could be one fruitful area to analyze in your DUI or DWI case. If the stop itself is illegal, unjustified, and against the law, then everything that the police get from the stop is thrown out of court. So in a DUI or DWI case, if the stop is illegal, we essentially can win the case, and that’s pretty much all there is to it. It’s a very fruitful area for us to analyze, if there’s any question about the stop and how it went down.

If you were stopped at a checkpoint or a roadblock for your DUI or DWI, we definitely need to talk about it. Checkpoints and roadblocks are very strictly controlled about how they’re performed, and there is a very strict set of rules about how they have to be done. Essentially, the entire plan for the checkpoint or roadblock has to be set out in writing before the operation is undertaken. Then the officers have to follow the plan while they’re on scene doing the checkpoint or roadblock. The whole point of this is to remove discretion from the individual officers. They’re not allowed to have discretion about what vehicles they’re examining when they’re actually running the checkpoint or roadblock.

It’s really important for us to look at all those pieces; to look at the actual written plan and to make sure that the written plan was followed. If a piece is missing, or the plan wasn’t followed, or something isn’t in the plan, then that could be grounds to have the checkpoint or roadblock declared essentially unconstitutional, rendering your stop illegal, which could help us win your DUI or DWI case. So if this applies to you or you have any questions about why you were stopped, give me a call for a free consult and we’ll talk about it.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Check Points and Road Blocks for Virginia DUI / DWI

Will you lose your license for a possession of marijuana charge? It depends.

Virginia law requires six months license suspension if you are convicted of possession of marijuana. That applies even if you weren’t anywhere near a vehicle at the time of the offense.

Even if you get a first offender disposition in court, your license still has to be suspended for six months. It’s suspended during your probation period.

There’s two pieces of good news here:

First, you may be eligible for a restricted driver’s license if you get suspended. It’s fairly routine to get restricted privileges in marijuana cases, as long as you have permissible reasons to be driving. For example, Virginia law allows restricted privileges to drive to work, to school, to VASAP, minor childcare, etc.

Second, some marijuana possession cases can be negotiated to an amended charge of “possession of drug paraphernalia.” The good news with that change is that NO license suspension is possible under that offense. It’s still a misdemeanor charge, but at least it saves you the hassle of the license suspension, restricted license, and reinstatement fee.

Most importantly, you may have a defense to your charge. If you can beat the charge completely, your license is safe. Call me today to discuss what defenses may be possible.

Photo by North Cascades National Park

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. License Suspension for Possession of Marijuana