Frequently Asked Questions

General Questions About Joyner Law

What should I look for in hiring an attorney to represent me?

There are a multitude of things to look for when deciding which attorney is right for you.

First and foremost, look for attorneys who focus on criminal and traffic defense. At Joyner Law, that’s all we do and where we spend 100% of our time and energy. We’re not general practitioners, we don’t dabble in family law or personal injury or anything else that would take us away from focusing on one thing: defending people charged with crimes and traffic offenses.

Experience is also paramount. We have handled thousands of cases across Virginia just like yours. We have been doing this for years and when we’re not in court actively defending our clients, we’re either working on our current cases to make sure we’re as prepared as possible for court or making sure we’re as up to date as possible on any changes or new developments in the law to best defend our clients.

Another thing to consider is communication. At Joyner Law, we believe communication is a pillar of the attorney-client relationship and it’s our responsibility to build the trust and confidence you have in us to promptly and regularly communicate with you about your case. Virtually every call and absolutely every email sent to us is handled by an attorney. When you call a law firm to speak with your attorney, you should actually speak with your attorney. When you contact us to ask legal questions, you shouldn’t receive legal answers from someone not qualified to give them, and you shouldn’t wait days to hear back from us.

It’s also important to try to get a feel for the attorney as you’re meeting with or speaking to him or her. You should feel confident that the lawyer you’re discussing your case with knows what they are talking about, fully and completely listens to not only your side of the story but also understands and appreciates what your goals and objectives are. Our focus is not building the largest client base we possibly can; we’re trying to build the strongest relationships with our clients so that once you decide to hire us, you are confident that you have made the right choice.

Finally, it’s always a good idea to check the law firm or lawyer’s reviews from places like Google, Facebook, and Avvo to see what previous clients have to say about their experience working with that lawyer or law firm. We pride ourselves in making every client we represent feel like working with us with a positive experience and that they received exceptional service and exceptional results.

Why is Joyner Law different from other attorneys or law firms that could represent me in my case?

Our mission since our founding has been to provide exceptional legal representation at an affordable rate.

When we started, we felt that there was a disconnect between affordability and quality of legal representation among criminal and traffic defense in Virginia. There are a lot of people that were either paying too much for legal representation or couldn’t afford high quality legal representation and instead of going with the right attorney for them, their budget dictated who to hire. We asked ourselves, “why can’t there be someone charging affordable rates for top quality representation?” A lot of our answers came down to how these firms operate.

From there it became obvious what the solution was: optimize the process and make the operational aspects of the firm much more efficient. We built a proprietary back-end process from the ground up to eliminate the need for a bloated staff, and made many of the tasks that we do for every case automated. That did two things: 1. it allows us to have a smaller staff and pass that cost savings on to you; and 2. it frees up the staff and attorneys to put more effort into doing the things that make us better and more efficient at the things that matter to you, like every case being reviewed multiple times over the life of the case to make sure we’re best equipped to defend you when your court date comes around and freeing us up to spend time researching the most up-to-date ways to defend you in court.

Once we figured that out, it became clear that we could cut out an enormous amount of waste and pass those savings along to you. Because of that, we can provide the exceptional service you expect when you hire a quality attorney to represent you in court at a rate that you can afford.

What happens during our initial consultation and how much does that conversation cost?

A consultation about your case with Joyner Law is absolutely free!

We hope to cover as much as we possibly can about your case and give you a fair and honest assessment of your case, what defenses you might have, set expectations about the outcome, go over what your ultimate goals are, and learn as much as we can about each other.

Sometimes those conversations are quick, sometimes they are not. Often the length of the consultation is dictated by what you are charged with and where you were charged. At the end of that call, we’ll get some contact information to send you a Fee Agreement and some other helpful information tailored to your case that will be useful for you whether you hire us or not.

Our consultations are completely confidential and there is no obligation on your part to retain us once it’s over. We won’t pressure you to hire us when you call and unless there is some sort of urgency like a court appearance within the next couple of days, we’re always going to give you time to continue to do your due diligence on finding the right attorney for you.

How much do you charge?

We charge affordable flat rates for virtually all of our services and we believe that cost shouldn’t be prohibitive for top quality legal representation.

Our fees largely depend on what you are charged with and where you are charged. A DWI in Brunswick County is handled differently than a DWI in Henrico County. The judges, prosecutors, local rules, and prosecutor policies are different everywhere.

That being said, we don’t believe a lawyer should charge $500 for a speeding ticket or traffic offense, or that a Reckless Driving charge should cost $2,500 to defend. We also think DWI / DUI charges typically shouldn’t run up to $10,000, and all but the most serious of criminal charges ought not to require a second mortgage to come up with tens of thousands of dollars to pay your legal fees.

We have honest, upfront pricing that we feel confident is affordable for everyone.

I spoke to other attorneys and they charge a lot more or a lot less than you, why is that?

There could be a lot of reasons for that, and some of it could just be their pricing model. Other reasons could be that some detail was mentioned to us that wasn’t mentioned to them, or vice versa, that may have an enormous impact on the complexity of the case.

Every law firm or lawyer has their own way of pricing their services and it would be imprudent for us to speculate on why a specific firm or lawyer charges what they do. What we can certainly promise you is this: we are going to give you the time in our consultation to fully explore the case before quoting you a price so you don’t have to worry about that changing down the road, and we’re going to make that quote fair and affordable.

One reason for someone else offering a lower price might be that we are unwilling to cut corners in the quality of your representation to increase our case load and ultimately our top line revenue. That’s not a great way to run a business and it is certainly not the way a law firm should uphold it’s professional responsibility to represent their clients with diligence and competence.

The law firms that charge more than us may not be responding to the changing landscape of legal fees in Virginia for criminal and traffic defense. The old way of just answering the phone and trying to milk out as much money as possible from an unsuspecting potential client is coming to an end. Potential clients are more informed of their options than ever, demand is more elastic than it has ever been, and the inventory of ready and willing attorneys to take your case is higher than ever.

We read the market for legal services for criminal and traffic defense on a macro level and independently assess our fee schedule. We want you to hire us to represent you because we feel that we are the best attorneys to handle your criminal or traffic case in Virginia. That said, we don’t want to lower our prices to the point that our case load impacts our ability to represent you the way you want and deserve to be represented and we don’t want to raise our prices because the foundational principle upon which our firm was established was and still is to provide excellent service at a reasonable cost.

Do you guarantee results?

No, we do not guarantee results. Our interpretation of Virginia Rules of Professional Responsibility Rule 7.1, which prohibits false and misleading communication, is that attorneys are prohibited from guaranteeing a result and we caution against hiring an attorney willing to do so.

We have represented tens of thousands of clients across Virginia and can give you a very good idea of what the outcome in your case may be based on the facts you provide about what happened, but to guarantee a particular outcome may create an unjustified expectation that wouldn’t be fair to you and we believe would constitute the exact kind of conduct that the Virginia State Bar made Rule 7.1 to protect the public against.

What we can guarantee is how much effort we will put forth in defending you in your case, how thoroughly we will work to protect you, and how much we will care about you and your case.

What is your success rate in court?

Similarly to our hesitance to make guarantees, we don’t believe in advertising our success rates and outcomes.

Cherry-picking our best outcomes and advertising those to you seems to us to be clearly misleading. Picking out a case where we got a 100/70 Reckless Driving charge reduced to Defective Equipment is clearly not a reasonable expectation in most cases and to show you that creates an unreasonable expectation that the same is likely to happen in your case. Highlighting where a client charged with several felonies had all of the charges dropped is also not providing you with any helpful information about your case. The same could be said with cases where DWI trials have resulted in Not Guilty verdicts.

We also don’t like the idea of advertising that a certain percentage of the cases we handle are reduced or dismissed. Advertising a number in the high 90% range of cases that are reduced or dismissed also feels wrong in that it makes it sound like we are almost guaranteeing an outcome or at the very least, using information you have no way of verifying to lead you to believe that there is a 90-something percent of getting your case dismissed.

Every case, even seemingly straightforward cases like speeding tickets or reckless driving charges, are unique and the facts and circumstances surrounding them are different. We feel that best barometer for measuring the results an attorney or law firm has gotten for clients is to read reviews online from previous clients.

Is the lawyer that I speak with about my case going to be the one representing me in court?

For all non-traffic criminal cases, the answer is absolutely yes. The attorney that you speak with and believe that you are hiring when you hire us will be the attorney representing you in your case.

For traffic cases, it would disingenuous for us to guarantee that you will be represented by the attorney that you initially spoke with. We certainly will do our best to accommodate any request you have about which attorney within the firm will represent you, it’s often a scheduling challenge to make sure it’s always going to be the exact person you initially spoke with. What we can guarantee is that every attorney at Joyner Law is going to be very intimate with your case file prior to court and that it will absolutely be a fully trained, very experienced attorney representing you in court. We don’t hire bad attorneys here, we don’t accept bad results, and we make sure that every single person that we represent is comfortable with their representation. We try to make our schedule two to three weeks in advance so you will know and have an opportunity to speak with the exact person representing you prior to your hearing.

Every case here is reviewed by every attorney at the firm both before and after your case. We are all as equipped and knowledge about your case as everyone else here. Our proprietary intake process makes it impossible for each attorney to not be up to speed about your case.

One other thing to note: it has become fairly common in Virginia for attorneys to “outsource” your case to another attorney outside of their practice to help ease their scheduling burden. We absolutely despise this practice. When you hire Joyner Law to represent you in court, Joyner Law is going to represent you, not some random attorney you’ve never heard of. Sometimes it ends up being an attorney you already spoke with and decided not to hire, just for the attorney you actually retained to fax your file to that first attorney to handle the afternoon before your hearing. That flies directly in the face of what we’re all about. You deserve the best attorney possible for your case, 100% of the time. Outsourcing to another lawyer to handle what you hired us to do is something we will never do.

Questions About Speeding and Traffic Violations*

If I am not from Virginia, will a speeding ticket affect me?

Generally yes. The points typically will transfer to your home state via the Driver’s License Compact. Always check with your state’s DMV or DMV equivalent.

Some states may even impose harsher penalties than the court or the Virginia DMV would. Other states may not care at all about your ticket in Virginia. We have tried our best to be as up-to-date as possible on the transmission of points and convictions between Virginia and other states so feel free to give us a call to discuss. If you live in a state that likely won’t care about your Virginia ticket, we’re going to tell you very early on in the conversation.

Do I have to come to court?

It depends, but generally for traffic infractions you do not have to appear in court, whether you live in Virginia or not. That being said, there are certain judges that will require your presence if you want some sort of relief from the conviction so it’s important to speak with an attorney familiar with the jurisdiction where your case will be heard to make sure you are fully aware of the local rules.

How can I be charged with speeding if I was just going with the flow of traffic?

Speeding offenses in Virginia are more or less strict liability offenses, subject to very few defenses. That means that if the officer clocked you going in excess of the speed limit, you are largely in violation of the law, regardless of whether another vehicle was also going the same speed or even faster than you were traveling.

Many law enforcement agencies in Virginia have switched from RADAR to LIDAR devices to determine speed, which allows them to zero in on one specific vehicle. In those cases, they may not even see other cars around you and you were the unlucky person that clocked.

Does a mistake on the ticket matter?

Typically not. In most cases, these mistakes are considered harmless clerical errors that can be amended at trial.

If the officer doesn't show up, will my case be dismissed?

Sometimes, but it is very uncommon. Judges typically allow for continuances on the first court date or if the officer is responding to some other work related duty. Other times, the officer may have been injured between the ticketing date and the court date and is unable to appear in court. It’s not likely that the officer won’t be there for your hearing, but it does happen on occasion and the judges are pretty lenient about continuances for good cause.

If the officer doesn’t appear on subsequent court dates and doesn’t have a reason to not be there or failed to communicate his absence with the court, the judge is much more likely to allow you or us to enter a Not Guilty plea in his absence. That is incredibly uncommon, but it’s possible.

How much discretion does the officer have in issuing me a ticket for speeding?

Not a lot, especially now that most officers wear body cameras. Typically, if you are pulled over, expect to receive a ticket and be as polite and cooperative with the officer as you can.

Often, officers will cut you a break on the side of the road and write the ticket for less than the speed they actually clocked you. We see a disproportionate number of tickets that are for 9-over the speed limit, which we’ve only seen given for actually going 9-over a handful of times in the years we’ve been handling traffic offenses. We also see a lot more 80/70 speeding tickets because the officers don’t want to write a ticket for Reckless Driving by Speeding in Excess of 80mph.

We also see a lot of Following Too Closely tickets or other non-speed related traffic infractions when the appropriate charge might have been Reckless Driving-Improper Brakes or Reckless Driving-Generally because the officer does not want to give you a criminal charge.

Officers are people, but they are also sworn to enforce the law. If you are pulled over by an officer, it usually best to accept that you are probably going to receive a ticket and your best course of action is to be as polite and cooperative as possible and understand that your opportunity to defend yourself is in court, not on the side of the road.

Should I sign the ticket when the officer pulls me over and if I do, is that an admission of guilt?

Signing the ticket is not an admission of guilt. It’s basically a promise that you are making to deal with the ticket in some way. You are basically agreeing to answer for the summons. In traffic tickets, the officer should also indicate to you that you are not agreeing or even required to appear.

If you don’t sign the ticket, the officer can arrest you and take you before a magistrate. It’s ridiculous, and you won’t spend any time in jail, assuming you otherwise behave yourself, but it’s within the officer’s authority to do so under the Virginia Code. Basically, it’s always in your best interest to sign the ticket, take the summons, and deal with the officer in court, not on the side of the road.

I didn't realize I was speeding, does that matter?

Speeding in Virginia does not require the specific intent to be speeding, so it doesn’t matter if you weren’t paying attention, your speedometer was inaccurate, or you otherwise didn’t realize how fast you were going.

What is a speedometer calibration and how can it help me?

A speedometer calibration is used to determine if there is a technical issue with your speedometer that causes it to incorrectly report how fast you are going.

Sometimes it helps to have a speedometer calibration performed on your car prior to court. Your best bet for finding someone to perform the calibration is searching online for mechanics in your area that provide this service. Using the search terms “speedometer calibration (your location)” is usually the best place to start.

This isn’t always necessary so make sure to discuss with us whether you need to go this route.

When you have the calibration performed, make sure that you receive an actual certificate of calibration that shows exactly how off your calibration is. Judges won’t find it helpful if the mechanic just writes on an invoice, “Customer complained about speedometer accuracy, removed instrument panel and replaced speed cluster.” If your speedometer is inaccurate, the Judge will want to know to what extent.

Should I attend a driver improvement clinic or driving school course before my court date? What about after court?

Sometimes proactively completing a driving school course or driver improvement clinic prior to your hearing is a prudent decision. Other times it is completely unnecessary. It really depends on the facts of the case and the judge that’s likely to hear it.

If you are going to take the class in advance, it’s important to understand that there are several different types of driving school options and not all of them are accepted by every judge in every jurisdiction. Some judges require in-person classes, other judges are accepting to online courses. If you show up to court with an online certificate in a jurisdiction where the judge accepts only in-person classes, you will have wasted time and money on the online course.

In other cases, you may show up to court with a certificate only to find out that the judge doesn’t consider driving school classes at all. Sometimes a person will take a class hoping to get the insurance benefit as well as using the certificate in court, only to find out that the judge is wise to that practice and holds it against you. Other cases may require an aggressive driving school class rather than a regular 8 hour class.

All of that is to say, the only way to truly know what course of action is best in your case is to contact an attorney familiar with the court and the judge and find out what you should do.

What can I do to best prepare myself for court on my speeding ticket or traffic violation charge?

Call an attorney familiar with that jurisdiction and that type of charge. At minimum, you can use the free consultation to gain better insight in how the court operates and what the judge usually does.

Can I represent myself? Should I represent myself?

You always have the right to represent yourself in any case in Virginia. For speeding tickets and traffic infractions, you are not entitled to an attorney, but it’s usually best to have one represent you. A common quote used by attorneys as reason for why they won’t even represent themselves in cases is, “a man who is his own lawyer has a fool for a client.”

An attorney in your case is beneficial for several reasons: first, they are familiar with the judge, the court rules, and the prosecutors and know how to handle your case to get the best possible outcome. In some cases, the prosecutors won’t speak to or work out deals with unrepresented defendants. In other cases, there might be a substitute judge that you won’t know isn’t the regular judge and not realize that’s the reason all of the attorneys have tried to continue all of their cases.

You also might run into the issue of having to navigate defending yourself while still protecting your rights. Or you might not know that what the officer is testifying about is generally inadmissible. Or when the officer finishes his testimony, you might not be aware that there is an opportunity to move the court to strike the case based on the lack of evidence and when you start talking about your side of the story, the gaps in what happened start to close.

In some cases, an attorney is completely unnecessary. In others, an attorney is worth their weight in gold. The only way to know for sure is to contact an attorney familiar with the court and your case who you can trust to give you the appropriate guidance on what is right for you.

Will the court give me an attorney if I can't afford one?

No. Infractions for speeding or other traffic violations are limited only to a fine. Because there is no possibility of jail time in a traffic infraction case, the court cannot appoint an attorney for you. If you want an attorney for your infraction, you will have to hire a private attorney to represent you.

In criminal cases, like Reckless Driving, DWI / DUI, etc., where jail time is possible, you may be appointed an attorney if you cannot afford one. Keep in mind that the guidelines for eligibility can be tough to meet. For someone with a household size of 1, if you make more than about $16,000 per year (or $310/week), you won’t be deemed indigident enough for a court appointed attorney.

How many points do speeding and traffic infractions carry if I am convicted and will those points appear on my out of state driving record?

Each state assesses it’s own point values for specific charges. Note that it is not the court that assigns points and it is only your home state that will put points on your license. Virginia’s point system is listed below, but if you are an out-of-state driver, these do not apply. Subject to a limited number of states and situations, your home state will treat the violation as if it occurred there and assign the appropriate number of points according to their point system.

The number of years that the conviction stays on your record is in parentheses beside the violation. An asterisk (*) indicates that the conviction remains on your record permanently.

Three Point Offenses

Speeding

Speeding 1-9 mph above the posted speed limit (5 years)
Impeding traffic, slow speed (5 years)

Passing/Driving

Improper passing (3 years)
Improper passing on the right (3 years)
Improper driving (3 years)
Improper stopping on highway (3 years)
Changing course after signaling (3 years)
Coasting with gears in neutral (3 years)
Failure to give way in favor of overtaking vehicle (3 years)
Failure to give way when abreast of another car (3 years)
Driving through safety zone (3 years)
Driving over fire hose (3 years)
Unauthorized use of crossover on controlled highway (3 years)
Driving/riding on sidewalk (3 years)

Turning/Backing

Improper turn (3 years)
Improper U-turn (3 years)
Violation of right turn on red (3 years)
Violation of left turn on red (3 years)

Signs/Signals

Failure to obey highway sign (3 years)
Evading traffic control device (3 years)

Lights

Driving without lights/excessive lights (3 years)
Failure to dim headlights (3 years)
Parking without proper lights displayed (3 years)
Inadequate hazard lights (3 years)

Licenses/Permits

No Virginia driver’s license (3 years)
No Virginia license plate (3 years)
Failure to obtain a driver’s license (3 years)
No driver’s license – vehicle/motorcycle (3 years)
Failure to have license revalidated (3 years)
Learner’s permit violation (3 years)
Permitting unlicensed person to drive (3 years)
Driving in violation of restricted license (restrictions related to physical limitation, such as mechanical control device) (3 years)

Commercial Motor Vehicles

Driving commercial motor vehicle with alcohol in blood (*)
Driving commercial motor vehicle without license (3 years)
Driving commercial motor vehicle with more than 1 driver’s license (3 years)
Driving commercial motor vehicle without endorsement(s) (3 years)
Driving commercial motor vehicle without license in possession (3 years)
Commercial driver’s license/commercial learner’s permit violation (3 years)
Driving commercial motor vehicle in left lane of interstate (3 years)
Driving in excess of 13 hours in a 24-hour period (3 years)
Driving public passenger-carrying vehicle under age (3 years)
Driving bus transporting school children without a safety belt (3 years)
Driving school bus without license (3 years)
Driving school bus under age (3 years)
Vehicle height exceeds limit for tunnels (3 years)
Texting while driving in a commercial motor vehicle (5 years)

Other Violations

Failure to stop at the scene of a crash, unattended property (3 years)
Failure to leave the scene of a crash at the direction of officer (3 years)
Failure to report a crash, unattended property, less than $250 damage (3 years)
Following/parking within 500 feet of fire apparatus (3 years)
Emergency vehicle violation (3 years)
Drinking while driving (3 years)
Improper driving/riding motorcycle (3 years)
Driving with TV screen visible to driver (3 years)
Driving while using earphones (3 years)
Passenger restriction violation (3 years)
Curfew violation (3 years)
HOV violation, second or subsequent offense – Northern Virginia planning district 8 (5 years)
Texting while driving in a non-commercial motor vehicle (3 years)

Four Point Offenses

Reckless Driving/Speeding

Reckless driving – failure to stop before entering a highway (11 years)
Speeding (5 years)
Speeding 10-14 mph above the posted speed limit (5 years)
Speeding 15-19 mph above the posted speed limit (5 years)
Speeding 10-19 mph above the posted speed limit (5 years)

Passing

Passing when unsafe (3 years)
Passing to the left of approaching vehicle (3 years)

Stopping/Yielding

Failure to drive to the right and stop for police/fire/emergency vehicle (3 years)
Failure to stop for pedestrian (3 years)
Failure to stop and yield right-of-way (3 years)
Failure to yield right-of-way (3 years)
Failure to yield when turning left (3 years)
Failure to yield to funeral procession (3 years)

Keeping to the Right

Failure to drive on right half of highway or street (3 years)
Failure to keep to the right when crossing an intersection (3 years)
Driving to the left of rotary traffic island (3 years)

Following/Signaling

Following too closely (3 years)
Failure to signal before moving from curb (3 years)
Improper signal (3 years)

Railroad Crossings

Failure to obey railroad crossing signal (3 years)
Failure to stop at railroad grade crossing (3 years)
Failure to keep to the right at a railroad crossing (3 years)
Failure to stop passenger-carrying vehicle at railroad grade crossing (3 years)
Railroad crossing/stopping (3 years)
Improper operation of crawler-type tractor over railroad crossing (3 years)

Railroad Crossings (Commercial Motor Vehicle Drivers)

Failure to slow down/stop at a railroad crossing (*)
Failure to have sufficient space to drive through a railroad crossing (*)
Failure to obey traffic control device or enforcement official at a railroad crossing (*)
Failure to have sufficient undercarriage clearance at a railroad crossing (*)

Other Violations

Operating a motor vehicle while suspended/revoked/restricted with a blood alcohol content of .02% or more (11 years)
Failure to stop at the scene of a crash, unattended property, damage in excess of $500 (11 years)
Passing stopped school bus (non-reckless) (3 years)
Failure to stop at the scene of a crash, property damage (3 years)
Emergency vehicle violation – property damage (5 years)
Emergency vehicle violation – injury (5 years)
Aggressive driving (5 years)
Failure to obey traffic signal (3 years)
Failure to obey lane directional signal (3 years)
Failure to obey highway lane markings (3 years)
Improper backing, stopping or turning (3 years)
Driving the wrong way on one-way highway or street (3 years)
Impeding/disrupting funeral procession (3 years)
Disregarding police officer’s signal to stop (3 years)
Disregarding crossing guard/officer’s signal (3 years)

Six Point Offenses

Reckless Driving (Felony or Misdemeanor)

Reckless driving – speeding in excess of 80 mph (11 years)
Reckless driving – speeding 20 mph or more above the posted speed limit (11 years)
Reckless driving – racing (11 years)
Reckless driving – passing or overtaking an emergency vehicle (11 years)
Reckless driving – passing a school bus (11 years)
Reckless driving – passing on the crest of a hill (11 years)
Reckless driving – passing at a railroad crossing (11 years)
Reckless driving – passing two vehicles abreast (11 years)
Reckless driving – driving two vehicles abreast (11 years)
Reckless driving – driving too fast for conditions (11 years)
Reckless driving – failing to give a proper signal (11 years)
Reckless driving – faulty brakes/improper control (11 years)
Reckless driving – on parking lots, etc. (11 years)
Reckless driving – with an obstructed view (11 years)
Reckless driving – generally (11 years)
Speeding 20 mph or more above the posted speed limit (5 years)

Driving Under the Influence

Driving while intoxicated (11 years)
Driving under the influence of alcohol or drugs (11 years)
Driving under the influence of drugs (11 years)
Driving after illegally consuming alcohol (persons under age 21) (3 years)
Driving while intoxicated – maiming (11 years)
Involuntary manslaughter/alcohol (11 years)
Refusing blood/breath test (11 years)
Driving while your license is suspended or revoked for driving while intoxicated (11 years)
Driving while your license is revoked for driving while intoxicated – maiming (11 years)
Driving while your license is revoked for driving while intoxicated – involuntary manslaughter (11 years)

Manslaughter

Manslaughter (11 years)
Involuntary manslaughter (11 years)
Involuntary manslaughter/aggravated (11 years)

Habitual Offenders

Driving after being declared a habitual offender (11 years)
Authorizing person suspended for habitual offender and/or driving while intoxicated to drive (3 years)

Licenses/Permits

Driving on suspended license (11 years)
Driving while your license is suspended or revoked (11 years)
Driving under suspension or revocation before giving proof of financial responsibility (11 years)

Commercial Motor Vehicles

Driving commercial motor vehicle while disqualified (*)
Driving commercial motor vehicle with blood alcohol .04 or more (*)
Driving commercial motor vehicle with blood alcohol .08 or more (*)
Driving commercial motor vehicle under influence of drugs (*)
Driving commercial motor vehicle under influence of drugs/alcohol (*)
Refusing blood/breath test while operating commercial motor vehicle (*)
Violating out of service order (11 years)

Other Violations

Speeding 20 mph or more above the posted speed limit (5 years)
Injuring person while racing – felony (11 years)
Failure to stop at the scene of a crash – injury (11 years)
Failure to stop at the scene of a crash – death (11 years)
Failure to stop at the scene of a crash – property damage of $1000 or more (11 years)
Emergency vehicle violation – death (11 years)
Vehicular assault or willful stopping, impeding or damaging vehicle (11 years)
Blocking access to service facility (11 years)
Attempting to elude police
- felony offense (11 years)
- misdemeanor offense (3 years)
Operating unsafe vehicle (3 years)

Will a speeding ticket or traffic infraction affect my CDL (Commercial Driver's License)?

Almost universally yes. Federal regulations require that states not “mask” convictions for commercial drivers, whether the offense occurred in a commercial vehicle or not.

Masking occurs when a court allows the conviction of a CDL holder for a traffic violation to be deferred, dismissed, or go unreported. Because of this, in Virginia, the state legislature prohibits courts from allowing CDL holders to go to driving school, or otherwise dismiss or not report your ticket.

Some offenses are more penalizing than others and it’s especially important for commercial drivers to contact an attorney to assist in defending a traffic violation or speeding ticket in Virginia.

What are the penalties that the court can impose for a speeding ticket or traffic violation and are there any other consequences that I should be aware of?

In almost all cases, the court is limited to only imposing a fine of up to $250 for speeding and traffic violations in Virginia. The court does not impose points, suspend your license, or impose jail time on traffic infractions.

That being said, the consequences for traffic violations and speeding tickets in Virginia are usually felt after court, once the DMV and/or your insurance provider is made aware of the conviction. The DMV will then assess points on your record which then may impact your insurance rates. If you have too many points on your record within a certain amount of time, the DMV can then suspend your privilege to drive.

While a speeding ticket, by itself, is often not incredibly concerning, it can have long lasting financial implications on your insurance premiums and potentially your ability to drive to, from, and for work. That’s why it’s important to speak with an attorney about what you can do to avoid some of these consequences.

Are speeding ticket penalties different for minors and teen drivers?

Yes. Minors must have their cases heard through the Juvenile and Domestic Relations Court where judges often impose more creative consequences for teen drivers. Also, parents must typically appear with their child in cases where the driver is under 18 years old.

On top of that, the DMV imposes some additional penalties for young drivers if they are convicted of a speeding ticket in Virginia.

What happens if I just pay the fine?

Prepaying the fine is admitting guilt and having the court impose the standard fine and court costs upon you as well as having the DMV assess the point value for whatever is that you are convicted of.

Prepaying the fine is rarely the right way to deal with your speeding or traffic violation case, but in some circumstances it might be the right move for you. The situations are rare, but the only way to know for sure is to contact an experienced and knowledgeable traffic attorney to discuss your options.

Can I appeal the judge's decision in a speeding or traffic infraction case?

Yes, in Virginia you always have an absolute right to appeal the decision of a General District Court or Juvenile and Domestic Relations Court judge to the Circuit Court. Initially filing an appeal is an easy process, but it must be done within 10 days of the conviction for the Circuit Court to hear the case.

There are a lot of considerations in determining whether an appeal is right for you. We’ll want to look at what the original judge’s decision was, consider the costs associated with the appeal, including the increase in court costs, how likely a better result is in Circuit Court, whether the Circuit Court judge is likely to impose a harsher penalty, and whether the totality of the circumstances make appealing your decision a wise one.

Can I get my speeding ticket or traffic infraction expunged?

Typically not. Expungements are largely limited to crimes, and the state legislature has deemed traffic infractions to be violations of public order and not criminal in nature.

That being said, even if traffic infractions were eligible for expungement, expungements are very narrowly tailored in Virginia and would require you to either be acquitted or for the charge to be withdraw or otherwise dismissed. That dismissal can’t come from a deferred disposition like driving school where the facts are found to be sufficient but for a reason like having a good driving record the judge allowed you to complete driving school to dismiss the charge.

What defenses are available to me in a speeding or traffic violation case?

There could be quite a few, some on the merits, some more technical. The only way to know what defenses you may have is by thoroughly discussing your case with an attorney well versed in the law surrounding speeding and traffic violations.

In a speeding case, we’ll typically focus on the sufficiency of the officer’s evidence rather than our own defenses. Unless you had some life-threatening medical emergency, there’s really no defense to speeding so we’ll want to focus on keeping as much evidence out as possible.

For other traffic infractions that aren’t related to speeding, we may have a few other options at our disposal to help defend your case.

Questions About Reckless Driving*

What is considered Reckless Driving in Virginia?

The Code of Virginia includes over 20 sections of law on what Reckless Driving is and how it can be punished. Anything from driving in excess of 80mph regardless of the posted speed limit, to getting into a single vehicle car accident can be charged as Reckless Driving.

That doesn’t mean you’re going to get convicted as charged, but it shows you the breadth of what Virginia can charge as Reckless Driving.

What are the penalties for a Reckless Driving conviction?

The maximum penalties for Reckless Driving in Virginia can mean:

Conviction of a Class 1 Misdemeanor, which is a criminal offense that can stay on your record for years;
Up to 12 months in jail;
Up to a $2,500 fine;
Up to a 6 month license suspension;
Increased insurance premiums and demerit points on your driving record.

It’s very uncommon for the maximum penalties to be imposed on most Reckless Driving cases, but even the low end of these penalties can be significant.

Are the penalties for Reckless Driving different for minors and teen drivers?

The consequences for a Reckless Driving conviction are largely the same for teen drivers. However, the DMV will also require them to complete an in-person driver improvement clinic and put them on probation until they are 18 years old.

A second conviction of any type will result in an additional 90 day suspension, and a third results in the suspension of his or her license until he or she is 18 or one year, whichever is longer.

I am not from Virginia, will a Reckless Driving charge affect me?

Generally yes. Criminal convictions follow you wherever you are and the points typically will transfer to your home state.

Some states also impose harsher penalties related to license suspensions than Virginia will once they are made aware of the conviction. North Carolina and Massachusetts, for example, may suspend your license there even if the judge in Virginia did not.

What happens if I just pay the fine for Reckless Driving?

Prepaying the fine is essentially admitting guilt and the judge will find you guilty of the Class 1 Misdemeanor and impose a fine and possibly a license suspension.

It is never advisable to prepay a criminal offense unless and until you have spoken with a knowledgeable and experienced attorney about your case.

In some cases, our clients have prepaid Reckless Driving offenses thinking it was simply a speeding ticket and have called us after the appeal window is up and there’s very limited avenues for relief at that point. We’re limited largely to filing a Motion to Reopen that may or may not be granted.

Do I have to appear in court?

For Reckless Driving cases, it really depends on what code section you are charged with and where the case will be heard.

Typically, we can appear on your behalf if it is the type of case that the judge normally does not impose jail for. For example, in most jurisdictions the judge will not require your presence if you are charged with Reckless by Speed but the speed alleged is below 100mph or below 30mph over the posted limit. There are, however, many jurisdictions with lower thresholds or others judges that require your presence for any Reckless Driving charge.

If you are charged with Reckless Driving in Virginia, it is always a good idea to speak with an attorney that is familiar with the jurisdiction and case type prior to your court date.

How can I be charged with Reckless Driving if I was just going with the flow of traffic?

Reckless Driving by Speed offenses in Virginia are more or less strict liability offenses, subject to very few defenses. That means that if the officer clocked you going in excess of the speed limit by whatever amount the threshold for Reckless Driving is for, you are largely in violation of the law, regardless of whether another vehicle was also going the same speed or even faster than you were traveling.

Am I really at risk of going to jail for Reckless Driving?

It depends. For a charge like 86/70 Reckless Driving, no. For anything above 100mph, yes, the judges in Virginia will absolutely consider an active jail sentence. Some judges have lower thresholds than that for an active sentence, but it’s less common, especially in the more rural areas of Virginia.

For non-speed related Reckless Driving charges, it really depends on what happened. If you are scheduled for an arraignment for your Reckless Driving charge, you should assume that jail is a possibility until the prosecutor or judge waives jail time.

Is it a defense if I am from out-of-state and didn't know how strict Virginia's Reckless Driving laws are?

No, it is not a defense to Reckless Driving that you were unaware of the laws of Virginia. It doesn’t matter if you are from Virginia or not.

It’s pretty much the rule anywhere that you must abide by the laws of the jurisdiction you are in, whether you are a resident or not. Where this becomes a problem, is that what’s not criminalized where you are from but criminalized here, will follow you back as a criminal offense. That’s why it is important to contact an attorney about your options well before your court date to fully understand what you are charged with and how to fight it.

How can I be charged with Reckless Driving if my brakes failed or I was in an accident for reasons that were not my fault?

Often an officer will respond to an accident and not really knowing what happened, will issue a Reckless Driving summons. It happens all the time. They may stylize the charge as Reckless Driving-Improper Brakes, Reckless Driving-Failure to Maintain Control, Reckless Driving-Generally, etc., but it all amounts to basically the same thing.

We can’t go back in time and revoke what you said at the time of the accident, but often the officers will just assume the accident was because you were sleeping, not paying attention, driving too fast, texting, etc. It’s not your job or mine to craft a credible explanation for what happened. The officer has prove beyond a reasonable doubt that the reason for the accident was due to your negligence or willful conduct.

The deer that ran into the road, or the car that swerved into your lane, or the nut that drove you off the road are long gone by the time the officer arrives and the officer is left with little other than an (incorrect) assumption that they are obligated to write a ticket because an accident occurred and someone must be at fault. Don’t worry, just call us and we’ll go over how we’re going to defend your case.

If you ever are charged due to an accident, the best course of action is to remain silent. All too often trying to talk your way out of a ticket results in defenses we may have been able to use evaporating.

Are there any other enhancement penalties for things like having my kids in the car, someone was hurt or killed while I was driving, or texting while driving?

Yes, and the enhancements are severe. Texting while driving isn’t going to raise this from a misdemeanor to felony but the judges are going to hate that fact. It’s rare that someone actually admits to that when the officer arrives, but if he sees you doing it while you’re driving, the judge will certainly view that as an aggravating factor. The same goes if someone is injured as a result of your Reckless Driving.

If your kids are in the car when you are charged with Reckless Driving there is a possibility that if the officer doesn’t arrest you on the spot for child endangerment the prosecutor will amend the charge to that felony at some point. Please keep in mind that if you’re charged with a low speed Reckless Driving charge (for example, something below 90 mph), that this possibility is remote.

If someone is killed as a proximate cause of your Reckless Driving and your license is suspended or revoked, you may also be facing a felony charge.

Will a Reckless Driving conviction affect my job, my security clearance, my military service, or my school applications?

It is certainly possible, but you will be best for answering that question. If you have a security clearance, are in the military, have a job that does routine checks of your criminal record or driving record, or are in the process of applying for jobs or to schools, there will questions you will have to answer about your criminal record. You certainly shouldn’t lie and lose your clearance, job, or face other repercussions for failing to disclose a Reckless Driving conviction, but we can often help put you in a position where you can confidently say “no” when asked about prior criminal conduct.

How can the officer charge me with Reckless Driving when (s)he didn't see me driving?

Yes and no; it’s complicated.

An officer can make an arrest or issue a Reckless Driving summons for an offense that did not occur in his presence at the scene of any accident or at the hospital upon reasonable grounds to believe, based upon personal investigation, including witness statements, that a crime has been committed. So basically, yes, the officer can charge you with Reckless Driving if he did not see you driving and it’s resulting from an accident.

The officer can not, or rather should not, charge you with Reckless Driving by Speed if he didn’t see you driving. Sometimes this will happen where one officer clocks you going a certain speed and radios ahead to another officer to pull you over and issue a ticket. If that occurs, both officers would need to be in court to testify as to what happened.

How much discretion does the police officer have in issuing me a ticket for Reckless Driving?

Not a lot, especially now that most officers wear body cameras. Typically, if you are pulled over, expect to receive a ticket and be as polite and cooperative with the officer as you can.

Does a Reckless Driving conviction have an effect on my immigration status?

We don’t hold ourselves out as immigration attorneys and it’s dangerous to take any advice from anyone that is not an immigration attorney. Immigration law is complex and criminal and traffic defense attorneys often find themselves in hot water for improperly advising their clients about immigration issues as they relate to a criminal or Reckless Driving case.

If you have any concerns at all about the impact a Reckless Driving charge may have on your immigration status, it is imperative to contact an attorney that focuses specifically on immigration law. Too often, criminal attorneys know just enough about immigration law to be incredibly dangerous. If you speak with an attorney and they don’t touch on whether or not immigration issues may arise, you should absolutely move forward cautiously. We have great relationships with a few immigration attorneys in the area having worked closely with them in many cases whether immigration issues may cause concern and would be happy to point you in their direction.

Can I appeal the judge's decision in a Reckless Driving case?

What is an arraignment and do I really have to go? What happens at the arraignment?

Yes, if your case is set for arraignment, you must appear. In certain cases in a few jurisdictions, we may be able to appear on your behalf or have your arraignment waived altogether, but you should absolutely confirm with your attorney regarding your appearance at your arraignment.

An arraignment in Virginia is the first appearance an accused person will make before the Court. Not everyone charged with Reckless Driving is arraigned, but the procedure typically goes like this:

The Court will make sure that you are the person on the summons;
The Court will inform you of the allegation and make sure you understand what you are charged with;
You will be advised that the charge you are facing carries the possibility of a jail sentence;
You will be informed of your right to be represented by an attorney;
You will be asked if you intend on applying for a court appointed attorney, plan to hire your own attorney, or plan to represent yourself; and
The Court will inform you of your next court date.

Should I attend a driver improvement clinic or driving school class before court? What about after court?

All of that is to say, the only way to truly know what course of action is best in your case is to contact an attorney familiar with the court and the judge and find out what you should do.

What is a speedometer calibration and how can it help me?

A speedometer calibration is used to determine if there is a technical issue with your speedometer that causes it to incorrectly report how fast you are going.

This isn’t always necessary so make sure to discuss with us whether you need to go this route.

Will the court suspend my driver's license? Can the court suspend my out-of-state driver's license?

In some Reckless Driving cases the judge may suspend your driver’s license, but that is limited to your privilege to drive in Virginia.

If you are a Virginia resident and the judge suspends your driver’s license, you cannot drive anywhere, even outside of the state. If you are an out-of-state driver, the judge can only suspend your privilege to drive in Virginia, but your home state will likely uphold that suspension there as well. In some states, we have found that a judicial suspension in Virginia might not be upheld, but that does not mean you are free to ignore the suspension here.

Typically what happens is that you might not feel the suspension in your home state until you go to renew your license and find out that the suspension you received in Virginia is holding up your ability to renew your license. In any event, it is always advisable to discuss these possibilities with a seasoned criminal and traffic defense attorney that is experienced and knowledgeable in Reckless Driving cases to see what you might be facing.

What is a restricted license and can I get one if my license is suspended for Reckless Driving?

If your driver’s license is suspended in Virginia, you may be eligible for a restricted license in certain instances. First, the judge must approve your eligibility for a restricted license.

Then, you must file paperwork for the restriction indicating what you need to drive for. This is very limited, and includes things like getting to and from work, driving as required by your employer, driving your children to school or other visitation obligations, church, court requirements like VASAP and Community Corrections, to and from jail, and to the doctor. Things like going to the grocery store are prohibited, and driving outside of your restrictions can be its own criminal offense.

If you’re not licensed in Virginia, the judge cannot issue a restricted license for driving in other states, much like the limitation to suspending your privilege to drive to only Virginia. Most states have a mechanism through which you might obtain a restricted license but it’s a complicated procedure and often by the time it’s all worked out, the suspension in Virginia has already run its course.

What is Aggressive Driving and how is it different that Reckless Driving?

Surprisingly, Aggressive Driving is a less severe offense than Reckless Driving in that it’s a Class 2 Misdemeanor. That really just means the cap on the punishment is a bit less but the Courts in Virginia often treat it as a more serious charge than Reckless Driving.

In a nutshell, if you commit some traffic offense with the intent to harass, intimidate or obstruct another person, it’s Aggressive Driving. If you do that with the intent to injure another person, it’s a Class 1 Misdemeanor. Proving intent can often be a challenge here, but judges typically treat Aggressive Driving more harshly than Reckless Driving, often adding the requirement that you complete an aggressive driving program as part of it’s punishment.

What defenses are available to me?

The defenses are limited in Reckless Driving by Speed cases. Largely we’re focused on getting as much evidence as possible excluded during trial.

If the charge is unrelated to speed, there are other issues that can present themselves as viable defenses. The most important thing to do in cases like this is to make sure your attorney knows as much as possible about your case so that they have the full picture of what happened and can start working on all available avenues of defense.

Will the court give me an attorney if I can't afford one?

Typically yes, unless the judge or prosecutor waive jail. In less serious cases, that’s very common and the judge won’t appoint an attorney for your case and you’ll have to hire one.

If you are indigent, you may be eligible but the threshold is very low to miss out. If you are unsure if you may qualify, give us a call and we’ll give you an honest assessment of whether or not you’re going to be appointed an attorney. Keep in mind that court appointed attorneys aren’t exactly “free,” as their cost is simply added to your court costs on the back end of your case in the event you are found guilty of some offense.

What can I do to best prepare myself for court on my Reckless Driving charge?

Contact an attorney as soon as you can to get a good idea of what you’re facing and how best to prepare yourself for your Reckless Driving court date.

A lot of factors go into how a case might play out in the various jurisdictions where we handle Reckless Driving cases. In some court and with some charges, you might not need to do anything proactively. In other situations, it really is in your best interest to prepare as much mitigation as possible leading up to your court date. In other cases, we need to prepare for trial early to make sure any witnesses testimony we’d like to present or other evidence is preserved for a court date that could be months away.

Feel free to give us a call as soon as you can so we can get to work on how we’ll best put together a defense package for your Reckless Driving case.

Questions about Driving While Intoxicated (DWI) and Driving Under the Influence (DUI)*

Is there a difference between Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) in Virginia?

No, the terminology is often used interchangeably in Virginia and the basis of the offense is defined under Virginia Code Section § 18.2-266. Although some states may draw a distinction between the two and may make one less serious than the other, Virginia does not.

The language of § 18.2-266 encompasses both operating a vehicle under the influence of alcohol or drugs, specifically defining the act of driving while intoxicated as operating a vehicle while your blood alcohol content is 0.08 grams of more per 210 liters of breath; under the influence of alcohol, under the influence of any narcotic or other self-administered intoxicant, under the influence of some combination of narcotic and alcohol, or while the blood concentration of certain narcotics are at or above certain levels.

Is a DUI / DWI a misdemeanor or a felony in Virginia?

In most cases, a DWI / DUI in Virginia is classified as a misdemeanor offense. However, certain circumstances enhance the penalty to a felony. For example, a third offense within a 10 year period will result in the charge being a Class 6 felony, or if someone was injured or died as a result of your driving while intoxicated or driving under the influence the charge can be categorized as a felony.

What are the consequences for a DUI / DWI conviction in Virginia?

The consequences for a DWI / DUI conviction can be harsh. You can read more about them here.

Can I refuse to take a sobriety test when the officer pulls me over in Virginia?

Yes, and it’s often a good idea to exercise your right to refuse the field sobriety tests.

It is important to draw the distinction between refusing to perform field sobriety tests and refusing to submit to a breath or blood test once you have been arrested for suspicion of driving while intoxicated or driving under the influence. Much of the confusion is not knowing that there are typically two breath tests, the Preliminary Breath Test that is administered on the side of the road, and blood or breath test that is administered after you have been arrested.

It’s helpful to understand the chronology of a DWI / DUI arrest:

The officer pulls you over for whatever reason, whether it is because your driving behavior establishes reasonable suspicion that you are impaired or for some other traffic offense.
The officer asks you for your license and registration. While doing so, s/he is looking for clues as to your level of impairment. Are you emitting an odor of alcohol? Are you slurring your words? Are you having trouble understanding and following directions or unable to quickly produce the requested documents? You should not refuse to comply with these requests. You can remain silent, but you do have to provide your license, registration, and insurance to the officer when requested to do so.
The officer may then ask you to step out of your car. Again, this is not something you should refuse to do. The Supreme Court has been clear on this issue for years in ruling that the officer can require that you step out of your car when you are pulled over for allegedly violating a traffic law. Again, you can and probably should remain silent, but you must follow these instructions.
At this point, the officer may start asking you about alcohol consumption or just tell you that he suspects you may be impaired or intoxicated. Anything you say to him can be used against you. Miranda warnings are another issue, and the admissibility of these statements depend on the unique circumstances of the arrest. Most defense attorneys would argue that the stop itself is an arrest under Miranda and any statements you make prior to the Miranda warning are inadmissible, but that is a complex issue that warrants a separate discussion.
This is when the field sobriety tests start and you can refuse to perform these tests. These are completely voluntary and for all intents and purposes, performing these tests is allowing the officer to strengthen the evidence against you.
The standard field sobriety tests that are commonly accepted as providing a scientific correlation between your performance on the tests and impairment are the one-leg stand, the nine step walk and turn, and the horizontal gaze nystagmus test. Many officers will often ask you to perform non-standard tests that have no scientific correlation between performance and impairment or intoxication, but in most cases the judges are going to let them testify to their observations of your performance despite the lack of scientific correlation anyway. Again, these are all voluntary and refusal to perform them often puts you in a better spot to defend yourself. That being said, the Virginia Supreme Court has decided that refusal to perform the tests is circumstantial evidence tending to show your awareness that your consumption of alcohol would affect your ability to perform such tests, but does not show a consciousness of guilt. In virtually all cases, the consequences of performing these tests drastically outweigh whatever benefit you’re hoping to achieve by showing the officer that you are not impaired or intoxicated.
Often, the officer will now offer what is called a Preliminary Breath Test, which is not admissible in court and cannot be used against you. What is often left out is that this is not the test that triggers a § 18.2-268.2 (Implied Consent) or § 18.2-268.3 (Penalties for Refusal) violation for failure to submit to a blood or breath testing post-arrest. The sole purpose of the Preliminary Breath Test is to establish evidence of alcohol and probably cause to arrest you on suspicion of a DUI / DWI.
At this point, the officer will decide whether s/he has probable cause to arrest you. If you performed the field sobriety tests and preliminary breath test, you probably have given the officer enough evidence to warrant an arrest. At this point, you will likely be read Miranda warnings, handcuffed, and taken to the jail.
Once you are at the jail or even while you are in the police car, the officer will begin the post-arrest process of reading you implied consent and advising you that failure to submit to a breath or blood test will result in a separate charge and license suspension.
This second breath test is the one that has the consequence of a license suspension. Whether it is a good or bad idea to refuse this test depends on a wide variety of factors and the area is entirely too complex to fully expound here. Some attorneys feel that it’s always a good idea to refuse because there are enhancements in penalties for DWI / DUI convictions for elevated blood alcohol levels (for example, if your BAC is above .15 you face mandatory jail time and if you refuse at the jail then there isn’t a BAC level to trigger mandatory time), while others feel that refusing and getting charged with refusal gives the prosecutor a bargaining chip to use in obtaining a guilty plea to the DWI / DUI (for example, “I’ll drop the refusal and let the defendant get a restricted license on a guilty plea to the DWI / DUI.”). There isn’t a hard line piece of advice to give on this, as the facts and circumstances of each case are incredibly unique. If you are reading this and have already been charged with the offense, give us a call and we’ll go over what steps you can take now to best position yourself for court.

Are there any other enhancement penalties for things like having my kids in the car, having an accident, or injuring or killing another person while driving?

Yes, there are certain circumstances that can elevate a DWI / DUI charge into something much more serious.

If your kids are in the car with you and you are arrested for a DWI / DUI in Virginia, you may be charged with a felony for Child Endangerment. If you seriously injure or kill another person while driving under the influence or driving while intoxicated, you may also be charged with a felony.

If my license is suspended for a DUI / DWI, how will get to work?

The Virginia Code requires that the Court suspend the driver’s license of anyone convicted of a DWI / DUI in Virginia. That being said, the Court is authorized to permit a restricted license in certain circumstances. Possible restrictions include:

Transportation to and from work
Transportation to and form VASAP meetings
Transportation during working hours
Transportation to and from school
Transportation to and from medical appointments
Transportation for a minor child under your care
Transportation for child visitation
Transportation to and from court, probation services, or other court required programs
Transportation to and from a place of worship
Transportation to and from child support programs or appointments
Transportation to and from jail
Transportation to and from work release programs
Other restrictions as specified by court order

Keep in mind that the judge will require that you install an ignition interlock device for part or all of the time that you are operating with a restricted license and that failure to comply with or driving outside of your restrictions can result in a separate criminal charge and/or loss of your restricted privileges.

What is the legal presumption of impairment, what does that mean, and how will it affect my DUI / DWI case?

A blood alcohol level of 0.08% creates a rebuttable presumption that you were driving under the influence of alcohol. A rebuttable presumption of impairment can also be created when there is a certain amount of cocaine, methamphetamine, phencyclidine, or 3,4-methylenedioxymethamphetamine in your blood.

If your BAC is below 0.08% but at or above 0.05% there is no presumption of impairment, and if your BAC is below 0.05%, there is a presumption that you were not impaired.

The rules are even more stringent if you are underage or are a commercial driver.

The presumption here is not necessarily that you were impaired at 0.08%, but rather the presumption is that you had a BAC of 0.08% or above at the time you were driving. Remember that the actual test can often be administered an hour or more after you were actually operating the vehicle.

Once the BAC certificate is admitted into evidence and it creates a presumption of impairment, the presumption is very hard to refute. Most of the time, highlighting things like your performance on the field sobriety tests, good driving behavior, etc. is not enough to convince the judge to ignore the presumption. We can certainly make those arguments, and sometimes they do prove successful, but it’s not common that it will be effective.

It’s not about arguing that you were not impaired despite the BAC. Most judges feel that the language of § 18.2-266 makes illegal any driving with a BAC above 0.08% and the correct analysis for challenging the presumption is not to highlight that you were not impaired at the time of driving, but rather that your BAC was lower at the time of driving than the certificate would indicate.

What is Blood Alcohol Content and how is it measured? How does is that used against me in court?

BAC is your blood alcohol content and can be measured by either taking a sample of your blood or your breath.

Breath testing for alcohol is possible because alcohol is eliminated through the lungs in a small but measurable amount. The scientific process is complex and a thorough understanding of the equipment that is used, how it is maintained and calibrated, and how it actually works is paramount in best defending you in an alcohol related case.

Blood tests are less commonly used, but are still routinely found in accident cases or when the officer suspects that the substance that is causing impairment may not be alcohol but some other self-administered narcotic. In these cases, the blood tests can be processed from the state laboratory at the Department of Forensic Science or from hospitals. The practical considerations of defending either are unique and require an attorney with experience cross examining not just a law enforcement officer, but also toxicologists, doctors, nurses, and any other custodian that may have handled your sample.

The results of these tests are then used to determine your level of impairment and whether a presumption thereof is created in your case.

How can I be charged with a DUI / DWI when I hadn't had anything to drink or my Blood Alcohol Content was 0.00%

The Virginia legislature considered that not all impairment or intoxication may come from alcohol and criminalized all driving that may have been affected by the use of a self-administered intoxicant. If your BAC comes back to 0.00% in a breath test, it is very likely that you will be administered a blood test.

If you test positive for some intoxicant that is not specifically listed in the DWI / DUI statute, the Commonwealth will need to bring a toxicologist in to testify about the result. This is typically found in most marijuana related DWI / DUI cases.

Do I have to appear for my DUI / DWI court date if I live out of state?

Yes, you must appear in court for your DWI / DUI case whether you live in Virginia or not. There have been many instances of an arrest warrant being issued, your local law enforcement may arrest you and the process of extradition may occur.

Going that route may turn a situation where you were not likely to actually serve any jail time into a situation where you sit in jail for weeks waiting for Virginia to come get you, you will be charged with the separate offense of failing to appear for court, and any leverage we may have had in mitigation might be completely gone. It is always a bad idea to skip court.

What is an arraignment? What is going to happen and do I need to hire an attorney before I am arraigned?

An arraignment in Virginia is the first appearance an accused person will make before the Court, and the procedure typically goes like this:

The Court will make sure that you are the person on the summons;
The Court will inform you of the allegation and make sure you understand what you are charged with;
You will be advised that the charge you are facing carries the possibility of a jail sentence;
You will be informed of your right to be represented by an attorney;
You will be asked if you intend on applying for a court appointed attorney, plan to hire your own attorney, or plan to represent yourself; and
The Court will inform you of your next court date.

It is not typically necessary to hire an attorney prior to your arraignment, but it is always a good idea to at least consult with one before you go to court.

What defenses do I have to a DUI / DWI charge?

There are many. Which defenses might be best suited for your case depend entirely on the facts and circumstances of your specific case. Defense can range from a stop that lacked reasonable suspicion, an arrest that lacked probable cause, the chain of custody of your blood sample, the administration of the blood or breath test, technical issues with the machine(s) used to determine your BAC, the officer’s qualifications to administer the test, the lack of evidence, improper evidence, it really runs the full gamut.

Not every case has every defense available to it. Some cases have several different avenues to take and we want to narrow down to a couple of very stong issues. Other cases were handled perfectly by law enforcement from top to bottom and we want to focus more on mitigation. It really depends on your set of facts.

As with any case, we first start with filing discovery to see what evidence the Commonwealth has against you and let that guide our defense strategy. We start with everything at our disposal and as we get more information about your case, we let the strength of the evidence guide what opportunities are available to defend you.

Can I or should I represent myself on my DUI / DWI charge?

You certainly have the right to, but DWI / DUI defense is a complex area of law that is both fact intensive and is wrought with technical issues. There is also an incredibly depth of case law that you may not be aware of.

It is invaluable having a knowledgeable advocate with you throughout the process to make sure that the Commonwealth can actually prove its case against you and walk you through the process of best situating yourself for your case before the trial date, at trial, and navigating the post-trial process.

Can I get my DUI / DWI conviction expunged?

Expungements are very narrowly tailored in Virginia and practically speaking, convictions cannot be expunged except through a Governor’s pardon.

There are situations where you may be found not guilty or the charge is dropped or amended where we may be able to expunge part or all of your case, but it’s worthwhile to speak with an attorney seasoned in both DWI / DUI defense as well as expungements prior to starting that process. We can help guide you if you are interested in learning more about the expungement process.

Will the court give me an attorney if I can't afford one?

Typically yes, if you are eligible for a court appointed attorney, the judge can appoint one to you.

What can I do to best prepare myself for court on my DUI / DWI charge?

Contact an attorney as soon as you can to get a good idea of what you’re facing and how best to prepare yourself for your DWI / DUI court date.

A lot of factors go into how a case might play out in the various jurisdictions where we handle DWI / DUI cases. In some court and with some charges, you might not need to do anything proactively. In other situations, it really is in your best interest to prepare as much mitigation as possible leading up to your court date. In other cases, we need to prepare for trial early to make sure any witnesses testimony we’d like to present or other evidence is preserved for a court date that could be months away.

Feel free to give us a call as soon as you can so we can get to work on how we’ll best put together a defense package for your DWI / DUI case.

Questions About Criminal Cases*

Do you represent clients for all types of criminal cases?

Yes, we handle all types of cases in the areas of criminal and traffic law. We also offer services ancillary to those areas of law, like expungements.

No matter what you are charged with, we are here to help.

What should I expect from the attorney that represents me?

You should expect that your criminal defense attorney has the knowledge of the law and the experience defending the type of charge you are facing necessary to put you in the best position possible to defend you.

You should expect your criminal defense attorney to go over every possible scenario with you, both in evaluating your options for how to handle the case, risk assessment in going to trial, planning your defense, and giving you an honest pro and con analysis of every legal option available to you.

You should expect confidentiality in all of your communication, and you should expect that communication to be open and timely. You should know what’s going on in your case and you should be aware of everything that the attorney is doing and plans to do to best defend you. You should expect your attorney to contact you about developments in both your case and developments in how the attorney is preparing your case.

You should also expect your attorney to be good, utilizing creativity and effective communication with the prosecution to make sure that no stone is left unturned and every avenue possible of defense has been explored.

Will the court give me an attorney if I can't afford one?

Typically yes, if you are eligible for a court appointed attorney, the judge can appoint one to you. If the Commonwealth waives jail, the judge will not appoint an attorney to you and you will either have to represent yourself or hire a private attorney.

Do I have to talk to the police before, during, or after I am arrested?

No, the only information you are typically ever required to provide law enforcement is basic identifying information. It is usually best not to talk to the police but the facts and circumstance for each situation is entirely unique. The decision to speak with the police before, during, or after your arrest is an important one that should be carefully and fully evaluated with your criminal defense attorney as soon as possible.

What is the difference between a felony and a misdemeanor?

The primary distinction between felonies and misdemeanors is how they are punished. Misdemeanors are less serious than felonies are punished less significantly. Felonies and misdemeanors are subcategorized by class:

Felonies:

Class 1 Felony – death, or imprisonment for life, and a fine of not more than $100,000.
Class 2 Felony – imprisonment for life or any term not less than 20 years, and a fine of not more than $100,000.
Class 3 Felony – imprisonment of not less than 5 nor more than 20 years, and a fine of not more than $100,000.
Class 4 Felony – imprisonment of not less than 2 nor more than 10 years, and a fine of not more than $100,000.
Class 5 Felony – imprisonment of not less than 1 nor more than 10 years; or confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
Class 6 Felony – imprisonment of not less than 1 nor more than 5 years, or confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

Misdemeanors:

Class 1 Misdemeanor – confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
Class 2 Misdemeanor – confinement in jail for not more than 6 months and a fine of not more than $1,000, either or both.
Class 3 Misdemeanor – a fine of not more than $500.
Class 4 Misdemeanor – a fine of not more than $250.

Unclassified Crimes:

Crimes that do not fall into one of the classes described above are called unclassified.
The statutes that designate these types of crimes contain their punishments within the section or sections that create the offense.
Examples include robbery, grand larceny, money laundering, and distribution of a Schedule I or II controlled substances.

If you are unsure of what type of penalties are associated with your charge, or have any other questions about misdemeanors or felonies in Virginia, feel free to give one our experienced criminal defense attorneys a call today.

Can I or should I represent myself in my criminal case?

You always have the right to represent yourself in any case in Virginia. A common quote used by attorneys as reason for why they won’t even represent themselves in cases is, “a man who is his own lawyer has a fool for a client.” There is a reason that attorneys in Virginia are required to have a Doctorate of Jurisprudence and pass the State Bar Exam to practice law: the law is complex and unforgiving. This is especially so in criminal case where your freedom may be at stake.

The only way to know for sure is to contact an attorney familiar with the court and your case who you can trust to give you the appropriate guidance on what is right for you.

How does bail work?

The purpose of the bail bond system in Virginia is to allow an accused person to be released from jail while awaiting trial and to ensure their compliance with pretrial services and assure their attendance at court.

If you have been arrested for a criminal offense, the first thing you’ll consider is how am I going to get out of jail? In some cases there is a presumption against bail and we’ll need to schedule a bond hearing as soon as possible. In other cases, the judge or magistrate may set a bond using one of three options:

Personal recognizance – you sign a written promise to appear and no money will have to be promised or paid.
Unsecured bond – similar to a PR bond in that you will not have to pay any money to get out, but you will sign an agreement to pay a certain amount if you miss any required court appearances.
Secured bond – you will have to pay a certain amount in order to be released. If you appear at all of your scheduled court hearings, the money will be returned to you. In these cases, most people use a bail bondsman to front the money. Bondsman typically charge a nonrefundable fee in the amount to 10-15% of the bond amount.

The court may also require other non-monetary conditions of your bond that you must strictly follow, such as curfews, electronic monitoring, SCRAM bracelets, maintaining employment, or any other recommendations from Pretrial Services.

Failure to comply with any conditions of your bail will likely result in a revocation and you’ll be brought back into jail so it’s imperative that you discuss your bail situation with a seasoned attorney as soon as possible.

My loved one is currently held in jail awaiting trial, how do I help him hire a criminal defense attorney?

We are always going to need to speak with the person that’s actually charged with the criminal offense prior to beginning representation but that gets tricky when they are currently incarcerated.

In these cases, we will typically arrange a jail visit for a small fee. You can pay that fee and we’ll go to jail and meet with your loved one about their case. We will not conduct these consultations by phone from the jail line as they are actively monitored and recorded. While the jails do try to limit recording and monitoring of attorney calls, it happens and we certainly don’t want to risk it.

If your loved one decides to hire us, we’ll credit the fee for representation with whatever the jail visit fee was.

What impact will this have on my immigration status?

If you are concerned about the potential impact your criminal charge may have on your immigration status, it is imperative to also consult with an immigration attorney about your case.

We frequently work closely with immigration attorneys in the area to make sure that you are best positioned to defend yourself in court, while working to minimize any immigration consequences that may arise from what you are charged with.

Immigration law is a rapidly changing and complex area of law that we have consciously chosen not to handle ourselves. We can’t be the best criminal defense attorneys for you if we have to spend time away from defending you to make sure we’re as up-to-date as possible with immigration issues, and most well-qualified immigration attorneys feel the same way about their practices.

If you have immigration issues, we can point you in the right direction to someone that can help.

What impact will this have on my job or education?

It really depends on what your career path is, who your employer is, and what your schooling situation is. It also depends on what you are charged with and the likelihood of incarceration.

To know for sure, we’ll need to discuss your case thoroughly so we can properly assess how to move forward.

If I get offered a plea bargain, should I take it?

Any plea bargain or offer from the Commonwealth should be carefully evaluated with your criminal defense attorney to make sure that your rights are protected and you know and understand fully what you are agreeing to.

In some cases, taking a plea is the best option, while in others, the offer may not be appreciably better or offer no real benefit over taking your chances at trial. Sometimes your defense is strong enough that we wouldn’t consider any offer other than a dismissal. It really depends on the facts and circumstances of your case.

It’s also important to consider what impact a plea offer may have on your ability to note an appeal and whether the short term benefit of the plea is worth the long term consequences associated with it.

The police called me and told me that there is a warrant for my arrest, what should I do?

If there is a warrant for your arrest, the first thing you should do is contact a criminal defense attorney experienced with your situation to go over your next steps.

Often, you’ll be unsure of the procedure of surrender and the questions surrounding what will happen in the event you turn yourself in. We can assist you in preparing how to deal with this situation and position you properly for the next steps after the warrant is executed.

The police called me and want to bring me in or meet with me for questioning regarding an ongoing investigation, what should I do?

It really depends on what’s going on in your case. Whether to speak to the police is a very fact dependent determination and one you shouldn’t navigate without an experienced attorney by your side.

All too often, speaking with the police to try and clear up a misunderstanding results in an arrest. Speaking with the police is not required and very frequently not an advisable option, but there are circumstances where speaking with the police while you are with your criminal defense attorney can help.

I was not read my Miranda Rights, does that help my case?

When you are arrested, typically the arresting officer will read you the Miranda Warning, advising you that you have the right against self-incrimination and the right to legal representation.

Where the situation gets murky is when you are not in custody and the officer asks you questions without reading you the Miranda Warning. This wasn’t a lapse in procedure, as you are free to politely decline, and the officer is allowed to ask you questions. Furthermore, the remedy to a Miranda violation is the exclusion of statements you made after you should have been advised of your Miranda Rights. Sometimes, there is enough evidence that the case against you is strong enough without the statements you made to the officer. Other times, failure to receive the Miranda Warning can prove fruitful in your case.

If you didn’t say anything, great, there’s no issue here. If you did, it’s important to contact a criminal defense attorney to go over the timeline of events and see how best to move forward in defending your case.

Can the officer just stop me and search my car? I wasn't even issued a ticket for traffic offense.

Yes, the officer only needs reasonable suspicion that you have committed a crime (a traffic violation counts) to stop you. Once you are stopped, the officer needs probable cause to initiate a search. There is a lot of nuance here, but basically yes, an officer can stop you and search your vehicle if they can establish an appropriate reason for doing it.

If the officer subsequently arrested you because they found something during the course of their search, they don’t have to issue you a citation for the underlying traffic offense. They can testify as to the reason for the stop and that testimony is sufficient evidence for establishing reasonable suspicion.

How does jail time or prison time work in Virginia?

It’s more apt to differentiate sentencing as misdemeanor time vs. felony time. Misdemeanor time is typically served as 50% of your sentence. For example, if you are convicted of a misdemeanor offense and are given 6 months, you will likely only serve 3 months before release. Felonies, on the other hand, are usually served at 85% of the sentence with the remaining 15% largely at the discretion of the jail or prison policies on giving you credit for good behavior.

There are a few important distinctions to note:

Mandatory time must be served fully, so if you are convicted of a misdemeanor and given a sentence of 6 months, and 30 of those days are mandatory, you will serve the full 30 days of mandatory time, plus 50% of the remaining five months, totaling 3 and a half months.
Felony sentences take precedence over misdemeanor sentences and are served first.
Jails and prisons typically calculate their time differently. For example, some jails use a calendar day versus other jails that use 24 hour days. Other jails may use calendar months, while some use a standard 30 days as a month across the board.

If you are unsure of how much time you may serve or how your sentence will be calculated, it’s important to discuss those issues with a criminal defense attorney that is familiar with that particular jurisdiction, jail, and/or prison to give you an accurate assessment of how your sentence will be calculated.

How does my case move through the courts in Virginia?

Misdemeanors largely begin and end in General District Court. Any appeal arising out of a conviction from the General District Court will be heard by the Circuit Court. There are some instances of a direct indictment in Circuit Court on a misdemeanor charge but it’s less common.

Felonies typically begin in General District Court with your arraignment, pretrial hearings, and preliminary hearing. They then may be certified to a grand jury in Circuit Court where the case continues. It’s also common for a felony charge to originate from a direct indictment in Circuit Court where it bypasses General District Court altogether.

The procedure for how criminal charges move through the Virginia judicial system is complex and navigating that process typically requires the assistance of a criminal defense attorney to make sure that you are properly represented at each stage and your rights are protected.

What is an arraignment? What is going to happen and do I need to hire an attorney before I am arraigned?

An arraignment in Virginia is the first appearance an accused person will make before the Court, and the procedure typically goes like this:

The Court will make sure that you are the person on the summons;
The Court will inform you of the allegation and make sure you understand what you are charged with;
You will be advised that the charge you are facing carries the possibility of a jail sentence;
You will be informed of your right to be represented by an attorney;
You will be asked if you intend on applying for a court appointed attorney, plan to hire your own attorney, or plan to represent yourself; and
The Court will inform you of your next court date.

It is not typically necessary to hire an attorney prior to your arraignment, but it is always a good idea to at least consult with one before you go to court.

Is there parole in Virginia, and how does a suspended sentence work?

There is no parole in Virginia. Discretionary parole was abolished in Virginia for felonies committed in or after 1995 and now Virginia requires offenders to serve at least 85% of their sentences with the ability to earn good-behavior credit toward an earlier release date.

Instead, Virginia courts typically will suspend portions of your sentence and condition that suspended time on probation, whether supervised or unsupervised, for a number of years with conditions.

For example, if you are sentenced to 5 years and the judge suspends 4 of those years, you will serve at least 85% of the 1 not suspended year and will be released after that time is served. Upon release, your suspended time will be conditioned upon you keeping the peace, being of good behavior, and complying with any other condition of the suspended time for some number of years after.

How do your fees work for criminal cases? Are they all flat rates?

Virtually all of our fees are flat rates for criminal offenses. We often allow for payment plans or more creative payment arrangements for certain criminal cases.

Payment Plans

For most payment plans, we require at least half of the fee paid upfront to being the representation. The remaining balance can be paid in partial payments or in full at any time prior to final hearing of your case but the fee must be paid in full prior to that date.

Limited Scope Arrangements

In certain circumstances, most commonly felony charges, we allow for smaller fees to be paid when we limit the scope to some extent. For example, if you are charged with something that we feel will likely be resolved prior to certification to Circuit Court or will otherwise likely not make it to a full trial in Circuit Court, we can agree to a smaller fee and limit representation just through General District Court and any representation in Circuit Court will require a new fee agreement.

We feel that some cases don’t warrant exceptionally high fees that encompass the possibility of a trial in Circuit Court. If we resolve your case favorably early on, you shouldn’t have to pay us as if we had a full blown jury trial in Circuit Court. We have found that is arrangement can be particularly helpful for a lot of our clients.

*These Frequently Asked Questions are some of the questions that we frequently get asked in some of our cases regarding criminal and traffic defense. The questions and answers are not intended to be exhaustive and do not constitute legal advice for your particular question, issue, or concern. These questions and answers are merely intended to be helpful and should not be deemed or construed as creating an attorney-client relationship, nor are they intended to be legal advice or a legal opinion upon which to rely.

Due to the rapidly changing nature of the law, Joyner Law makes no warranty or guarantee concerning the accuracy or reliability of the content contained. Furthermore, Joyner Law is licensed to practice law in the Commonwealth of Virginia and the questions and answers contained here are intended and catered specifically to the Commonwealth of Virginia.

We encourage you to contact us regarding the questions listed here, the questions you may have that are not listed here, and to further discuss your case.