You may be surprised to learn that the officer does NOT have to clock everyone who might be speeding near you. He really just has to prove what speed YOU were traveling.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. I talk to people quite often who mention that the officer did not clock a car next to them in traffic. Typically these are people who are charged with reckless driving, which is a misdemeanor in Virginia. They’ll say something like “Well, I think I might have been going maybe the speed the officer claims. I know I was speeding, but the officer didn’t clock the car next to me, or behind me, or in front of me.”

I’m here to tell you that unfortunately, that normally doesn’t matter. What matters is if the officer can prove beyond a reasonable doubt that you were going the speed that he’s claiming. He doesn’t have to prove the speed of really any other vehicle on the road.

Now, the one exception that I can think of to that rule, would be if there was a vehicle that crossed through the beam, or got in the way that could have been impairing the officer’s ability to get your speed. That might come into play, but otherwise, all the officer has to prove–the basic pieces–is that he clocked you and did get the correct vehicle, that his equipment was calibrated and accurate that day, and that his equipment read whatever speed he is claiming. There are many other little pieces, such as that he was wearing his uniform and displaying his badge, that it happened in the right county, and those kind of things, but the actual speed determination is honestly relatively simple in many reckless driving by speed cases.

The important thing to remember is that, unfortunately, he does not have to prove the speed of any other car on the road in most cases. If you have a question about something like that on your case, let’s talk about it and see if maybe your case is one of the exceptions.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. The Officer Didn’t Clock Everyone!

If you’ve been charged with a traffic or misdemeanor offense in Virginia, you should call a lawyer ASAP. There’s no time to waste, since your trial could be in just a few weeks.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. It’s really important to understand that if you get charged with really any traffic violation in Virginia, time is of the essence.

It’s very important to talk to an attorney as soon as possible after receiving a ticket. In many cases, your trial may be coming up within around 30 days of when you actually receive the ticket. So there is just not a lot of time to talk with an attorney and get an attorney on board if you want to go that route.

I understand that in many cases, you may not want an attorney or even need an attorney, but in those cases where you do want to hire somebody, or at least want to talk with somebody, it’s really important to do that soon. If you look at just 30 days, and you wait just a couple weeks, that only leaves another couple weeks before court. So if the attorney has advice for you, such as doing a driving school or maybe a little community service before court, two weeks is not much time to do that.

Sometimes, we can get a continuance on the case if we need to, in order to have time to better prepare for court, but that’s not always possible and sometimes clients don’t want to do that. Sometimes you might just want to get the case done with and behind you. So if you talk with an attorney ASAP, as soon as you get the charge, then we can get better on the case and advise you on what to do to get a better result in court.

Talk to an attorney as soon as you’re charged. Even if you don’t think you want to hire somebody, give me a call and we can talk for free about your case if it’s local to the Fredericksburg, Spotsylvania, Stafford area. I’d love to tell you what I think about the case and if I have some suggestions on how you can help start getting ready for court early.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Call a Lawyer Soon

You do something stupid. You do your punishment. You think it’s behind you.

You definitely think it’s behind you when it was FORTY years ago.

A Wells Fargo employee, Yolanda Quesada, found out that it’s not. She was fired after a background check revealed she was convicted of shoplifting twice in 1972. She had apparently been a well-regarded Wells Fargo employee for five years. Now she’s unemployed.

This is one reason it’s critical to consult with an attorney if you’re charged with shoplifting in Virginia. It’s a serious offense that could have devastating consequences decades down the road.

You never know when an employer might find out about a past offense, and you certainly don’t know what they will do about it. I’d like to think that Yolanda’s situation is an extreme example, but I’m afraid it’s not.

The side point that I don’t see addressed in the media reports about Yolanda is whether or not her Wells Fargo application asked if she had ever been charged and/or convicted of a theft offense. I would bet that a bank’s employment application would inquire about that info. At the very least, I’m not sure why an initial hiring background check didn’t reveal the 1972 offenses. The bigger problem Wells Fargo might be facing is if Yolanda was asked about any prior convictions and she didn’t disclose them. That becomes a current offense of dishonesty against the company instead of an old offense that might could be overlooked.

In other words, if you have a shoplifting conviction, even from 40 years ago, you must disclose it whenever you’re asked. Better to tell the truth about an indiscretion from a long time ago than be accused of lying today.

Photo by boutmet

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. 40-Year-Old Shoplifting Conviction Costs Woman Her Job

It’s fundamental that everyone has the right to a fair trial in the United States. Or is it?

Apparently that right might not exist in some Stafford cases, according to a breaking news article.

A judge just set aside an assault verdict where a jury convicted the defendant. The defense attorney accused the Commonwealth’s Attorney of withholding exculpatory evidence, which was required to be given to the defense.

What sort of evidence? Part of it is a statement from the victim to Stafford law enforcement that his assailant doesn’t match the description of the defendant that Stafford charged and convicted. Yeah, I’d say that might matter in court.

All the more reason why anyone charged with any type of offense in Stafford should talk to an attorney asap.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Stafford Accused of Withholding Evidence – Verdict Reversed

To pull you over, an officer typically needs “reasonable articulable suspicion.” That’s a mouthful that basically means “more than a hunch.”

Video Transcription

Hello, my name is Andrew Flusche, and I’m a Virginia traffic attorney. If you are stopped while driving a vehicle, the officer has to have what’s called “reasonable articulable suspicion” in order to pull you over. There are some exceptions to that, such as roadblocks and checkpoints, but those are a whole other video’s worth of information.

Basically, if you’re stopped in a normal situation, where the officer puts on their lights and pulls you over, to make it a legal stop, what the law says is that the officer has to have reasonable articulable suspicion that you are violating the law in some form. Typically, that involves speeding, making an improper lane change, running a stop sign, or something of that nature. In many cases, a simple stop like that ends up being a DUI, possession of marijuana, or something more serious.

But in some cases, it’s not clear that the officer had reasonable articulable suspicion of some kind of legal violation. Sometimes what happens is maybe the officer doesn’t have a specific, clear violation of the law. Virginia law, unfortunately, does let the officer stop you if there is some reasonable suspicion of some kind of problem. There is case law that says that weaving in your own lane can be enough for the officer to pull you over and suspect you for DUI if his training basically says, and his experience says that weaving within your lane is caused by DUI, then he can pull you over for that.

Sometimes though, the officer can be mistaken when he pulls you over. He might think that he has a good stop, but that stop might not be upheld by the court as valid. The key thing for a defense is that if the officer did not have reasonable articulable suspicion to pull you over, then any evidence obtained from the stop should be suppressed in court. In many traffic and DUI and possession of marijuana cases, that might be enough to win the whole case. That might throw out all the evidence against you basically.

This is a really important thing for us to look at first in your case: did the officer have a reasonable articulable suspicion to pull you over? It’s not probable cause – that’s a whole other topic and it’s a different standard – but to make a traffic stop, he has to have reasonable articulable suspicion, and that’s basically more than a hunch. So if you would like to talk about that on your case, give me a call.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Traffic Stops: Reasonable Articulable Suspicion

Today on my way back from handling Spotsylvania reckless driving tickets, I stopped by the McDonald’s drive-through for a quick bite to eat.

I ordered a Big Mac. The drive-through guy did a great job of promoting a $1 drink, so I took one of those too. I grabbed my ordered and headed to my office.

When I opened the bag, I saw a Quarter Pounder box. I opened it thinking, “maybe they ran out of Big Mac boxes.” Nope. It was definitely a Quarter Pounder.

By that time, I was already back at the office well into returning client phone calls. Of course I wasn’t going back to McDonald’s to complain. I was too busy, and besides, I like Quarter Pounders just fine.

Why am I writing about this? Good question.

I didn’t order a Quarter Pounder.

Yep, I should’ve checked the bag when the window attendant handed it to me. But I was in a hurry, so I didn’t. However, the McDonald’s employee should’ve checked too. His entire job is to give the right food to the right car. That’s it. Based on his error, my entire experience wasn’t what I wanted.

This experience got me thinking: am I providing the experience my clients order?

I sure hope so. My goal each and every day is to exceed the expectations my clients and potential clients have. That starts with the little things like returning calls promptly (almost always within one business day) and responding to emails even after hours. Then of course it carries into the courtroom with zealous advocacy to get the best result possible.

The law isn’t like McDonald’s. You can’t just pay for the exact thing you want to happen in court (I wish!), but you certainly should expect your attorney to provide top notch service without ugly surprises.

And here’s the final tidbit I took away from this: McDonald’s doesn’t know they screwed up.

I didn’t go back and tell them they messed up my order, so they have no idea my experience wasn’t perfect. If I ever do wrong by a client or fail to meet any expectations, I hope they tell me. I can only improve with the help of honest feedback.

And now I’d really like a Big Mac.

Photo by rob_rob2001

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Ordered a Big Mac, but got a Quarter Pounder

Some marijuana possession cases aren’t clear cut. If you didn’t admit to having the marijuana, we may have an argument that the Commonwealth can’t prove you were legally in possession of it.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic and misdemeanor attorney. If you’re charged with possession of marijuana, one of the important things for us to look at is whether or not the Commonwealth can actually prove that you were in possession of marijuana. It seems so basic, but it really does matter and in some cases it means the difference between winning or losing.

Unfortunately in many cases what happens is the officer maybe pulls you over or encounters you on the street, and for some reason or another, the defendant admits “Yes, I have marijuana; here it is.” In those cases, the element of possession is really not an issue because you admit it. So it’s very clear that you knew you had it and what it was, and there is really not an argument.

Where possession really becomes the key in a case, is in a situation where the officer comes along and maybe searches a car or searches a room and finds marijuana somewhere not on your person. Then the issue is, can they prove that you were actually in possession of it?

Just because you’re near it, Virginia law says that’s not enough. Being in the mere proximity of marijuana doesn’t mean that you’re in possession of it. When it’s not in your actual possession, what the Commonwealth has to prove is what we call ‘constructive possession.’ Basically we look at all the other pieces of the case, the other facts, and decide if putting all those together, we can say that you constructively possessed the marijuana. That’s the legal argument the Commonwealth would make.

What the courts say is that they have to show that you were aware of both the character and presence of the marijuana and that it was under your dominion and control. So you not only have to know that it’s there and know what it is, but you also have to be able to exercise control over it. So again, the law is that just being in mere proximity to the marijuana is not enough. Just being in the same car with the marijuana is not enough to be in possession.

Now, if it’s a car registered to you and the marijuana happens to be under the driver’s seat and there is nobody else in the car, that may be enough to be found to be in possession of the marijuana. But, if there are a couple other people in the car, it’s not your car, the marijuana is in another seat or on another floorboard where you’re not sitting, then that’s a much clearer case where you could argue that you were not in possession of marijuana.

There are a lot of facts and circumstances to look at, but just because you’re charged with possession, and just because you may have been near marijuana, does not mean that they can prove beyond a reasonable doubt that you were, in fact, in possession of it. There are a lot of little pieces to look at and that’s something that we definitely need to talk about if you have a possession of marijuana case.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Proving Possession of Marijuana in Virginia

If you’ve been charged with a Virginia misdemeanor, such as DUI, driving on a suspended license, or possession of marijuana, you may be wondering about your Miranda rights. Potential clients frequently mention “the police didn’t read me my rights.”

First of all, what are the Miranda rights? Simply put, they are a warning the police give to suspects before they are interrogated when in police custody. The term “Miranda rights” comes from Miranda v. Arizona, where the U.S. Supreme Court kept out the defendant’s confession due to the coercive nature of the interrogation.

The rights explained in a “Miranda warning” are:

• Right to remain silent
• Right to an attorney

Essentially what this means is that you don’t have to talk to the police and that you have the right to have an attorney present for a custodial interrogation. If you do talk, your statements WILL be used against you in court. And of course the state will appoint an attorney for you if you’re indigent.

But how does Miranda apply to traffic and misdemeanor cases?

Honestly, in the vast majority of the cases I handle, Miranda warnings don’t matter a single bit. People are shocked when I explain this, but it’s really quite simple.

DUI cases provide a great example. Let’s say an officer pulls a driver over for speeding. He’s fully entitled to ask questions to investigate that offense without any Miranda warnings (the driver isn’t considered in custody while pulled over on the side of the road).

Then if the officer suspects a DUI, he asks the driver out of the vehicle for field sobriety tests. The driver’s still not in custody, so Miranda doesn’t apply.

Once the officer has enough evidence to support probable cause for a DUI, he arrests the defendant. But the only thing left for a typical DUI case is the breath / blood test. In Virginia, the driver is obligated to take the test (or be charged with refusal), so there’s no confession issues there.

The only way Miranda would matter for an average DUI is if the defendant made harmful statements after the arrest. But usually the harmful statements are made during the first few minutes of the stop before the handcuffs come out. Thus in many cases, the fact that the officer didn’t read your rights is completely irrelevant to a defense.

The key question for Miranda is whether or not you made a statements (or other admissions) while in custodial interrogation. If so, the Miranda warning must have been given first. But if there’s no custodial interrogation, Miranda frankly doesn’t matter.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. What are the Miranda Rights?

This clip from the Today Show is great. It shows several crazy antics that were caught on tape, including a couple traffic incidents. My favorite is the REALLY determined parking enforcement guy. Watch the video to see what I mean!

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Crazy Antics Caught on Tape

If you’re charged with DUI / DWI in Virginia, the officer will need to prove that he had probable cause to arrest you in order to admit the breath test results against you. Without probable cause, your case might be beatable.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. One of the important pieces of any DUI case is that the officer has to have what we call “probable cause” to make an arrest for DUI. The important thing there is that probable cause is what triggers the implied consent law in Virginia. Once the officer has made a legal arrest for DUI (and there are some other requirements, but probable cause is one of the big pieces for a legal arrest for DUI) that triggers implied consent. That basically says that by driving on a highway in a Commonwealth you have impliedly consent to have a breath or blood sample taken if you are legally arrested for DUI. So probable cause is a piece they have to have.

But what does that mean, what is probable cause? Probable cause is basically what all those roadside tests are designed to establish. The officer uses the field sobriety tests, such as the one leg stand, the 9 step walk and turn, the alphabet, and all the other little tests he does, they use those, along with the roadside breath test, the PBT. Those are all used to establish that the officer has probable cause to think you’re intoxicated. It’s not proof beyond a reasonable doubt, but it’s definitely more than reasonable suspicion. But it’s not clear proof, it’s just that you are probably intoxicated.

The important thing for us to look at in your defense is that probable cause is made based on what we call “the totality of the circumstances.” So any one piece may not be enough to establish probable cause but when you stack them all up together it could be enough for the judge to say “Yes, that’s a legal arrest.” So the officer is allowed to use things such as an odor of alcohol, slurred speech, what your driving behavior was like, whether or not you were steady when getting out of your vehicle, all these little things. And again, one thing might not be enough to mean anything, but when you add them all up together it may mean probable cause.

So that’s one of the important things for us to analyze when we talk about your case together. Did the officer have probable cause to arrest you for DUI? Because if he didn’t, if there isn’t probable cause, then we may be able to suppress the breath test results, and that could mean the difference between winning or losing your DUI case.

Originally published at AndrewFlusche.com. © 2012 Andrew Flusche. Probable Cause for Virginia DUI / DWI