Attorney Mark Matney - Holcomb Law, PC - Traffic Court Attorney - Newport News Virginia

Attorney Mark Matney - Holcomb Law, PC - Traffic Court Attorney - Newport News Virginia

Not Guilty of DUI for Two Clients Who Refused Tests

Posted by Mark Matney of Holcomb Law, PC Newport News VA
www.matneylawpllc.com
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Two recent clients had their DUI charges dismissed in cases where they did not participate in testing.  One of these was achieved through a trial and the other was the result of a conversation with the prosecutor.

In the first case, my client was stopped for a minor traffic violation.  The officer noted slurred speech so he required the driver to exit the vehicle for a DUI investigation.  The driver denied consuming alcohol and declined all field sobriety tests, the handheld preliminary breath test and the formal breath test at the police station.  Without a BAC, there was no presumption against my client.  However, the driver’s appearance was a challenge.  The police video confirmed the officer’s notes describing the driver’s speech as slurred and his ability to stand and walk as swaying.  Because of this, the prosecutor insisted on a trial instead of agreeing to an amendment to a lesser charge.  In fact, the prosecutor played a portion of the video for the judge to show him the driver’s slow speech and swaying.

To deal with the officer’s observations, I had my client sworn in to testify.  It is unusual to call a client to testify, but we needed him to tell his story.  The goal was to show the judge that fatigue and other factors were affecting him instead of alcohol.  We walked through his day, describing in detail how he had worked his regular job, donated plasma, visited his mother, and worked a side job with his friend.  He described how he could not drink at work and that neither his mother nor his friend tolerated alcohol.  He also described not being able to consume alcohol before donating plasma and that he felt dizzy after the donation.

Ultimately, my closing argument emphasized the lack of evidence against my client.  There was no presumption against him, there were no field tests or BAC tests, and there was a detailed description of his day that provided an explanation other than alcohol for his appearance.  The clincher, however, was that the officer testified that he did not detect an odor of an alcoholic beverage.  The judge indicated that it was a close case due to the driving behavior, swaying and slurred speech, but he was not comfortable finding my client guilty in the absence of any other evidence against him.  The final result?  Not guilty of DUI.

The second case was dismissed after the prosecutor and I discussed the lack of evidence.  In this situation, the police officer was dispatched to an accident scene so he did not observe the driving behavior.  He acknowledged that it had been raining.  The officer’s report noted the odor of an alcoholic beverage, bloodshot eyes, slightly slurred speech and swaying while standing.  However, the driver denied drinking alcohol and declined field tests.  Instead, she requested transportation to the hospital due to the accident.  At the hospital, the driver was treated and released before the officer arrived to request a blood test.

On the morning of court, I was ready for a trial but hoping that the prosecutor would offer to amend the charge.  The prosecutor and I reviewed the case and the lack of evidence:  no indication that the driver’s conduct caused the accident, no field tests and no BAC.  It was also significant that my client’s appearance and behavior could have been affected by being in an accident and that the police video did not support the officer’s note that the driver was swaying.  After we reviewed the case, the prosecutor conceded that the evidence against my client involved little more than the mere odor of alcohol.  The DUI was dismissed by nolle pros, which is a prosecutorial decision not to pursue the charge.

 

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

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DUI - DWI Lawyer

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Attorney Mark Matney - Holcomb Law, PC - Member of DUI Defense Lawyers Association

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DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

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The Complete Guide to Expungement

Do I Need To File Expungement?
Posted by Mark Matney of Holcomb Law, PC Newport News, VA
www.matneylawpllc.com
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1. If my case was dismissed, why do I need to file for expungement?
The dismissal of a criminal charge leaves a blemish on the defendant’s criminal record. Dismissal does not in itself remove the charge. Anyone conducting a background check would see the charge and any arrest and the notation that the charge was dismissed. Depending on the charge, the mere fact of being charged, regardless of the outcome, may be enough to scare off a potential or current employer. For example, I represented an EMT who had outstanding credentials, even training other EMTs. However, every time he applied for a permanent position he was denied. Potential employers saw dismissed charges related to an ex-girlfriend and chose the candidates without the blemished records.

2. Grounds for Filing the Petition.
a. Terms. The result of the charge must be acquitted, nolle prosequi, or otherwise dismissed.
1) Acquittal is a dismissal based on innocence or lack of proof. This includes a not guilty result.
2) Nolle prosequi is a dismissal by the prosecutor. In this situation, the prosecutor chose not to proceed on the charge. Sometimes a nolle prosequi is triggered by a lack of evidence or difficulty getting a witness to court. At other times, a nolle prosequi may be result of an agreement for one charge to proceed while another charge is dismissed.
3) Otherwise dismissed. A petition based on an “otherwise dismissed” result is the most likely to be litigated.

b. Not eligible for expungement.
1) Amendment to a lesser included offense. For example, if the charge is amended from the felony of Grand Larceny to misdemeanor of Petit Larceny, then the charge would not qualify for expungement. This is so because the elements of each offense are the same.
The Virginia Supreme Court described this situation by stating, “the misdemeanors of which Necaise was convicted were lesser included offenses of the felonies with which he was charged, all of the elements of the offenses of which he was convicted were subsumed within the felony charges and they form[ed] the sole bases for the convictions.” Id. at 669, 708 S.E.2d at 866. Therefore, we held that “Necaise, having been found guilty of offenses charged within the warrants upon which he was arrested, was not an ‘innocent citizen’ entitled to the benefit of the expungement statutes.” Id. at 670, 708 S.E.2d at 866. Dressner v. Commonwealth, 285 Va. 1, 6, 736 S.E.2d 735, 737 (2013), explaining its decision in Necaise v. Commonwealth, 281 Va. 666 [708 S.E.2d 864] (2011).
2) Dismissal after completion of a first offender program. First offender programs result in dismissals and permit people to avoid convictions, but are not eligible for expungement.
3) Evidence sufficient for a finding of guilt. If the judge indicates that there was enough evidence for the person to be found guilty but dismisses the case, then the defendant receives the benefit of not being found guilty but not the benefit of expungement.

c. Eligible for expungement.
1) Amendment of the charge to a separate offense that is not a lesser-included offense of the original charge.

For example, a marijuana possession charge being amended to the unrelated charge of reckless driving.
“The possession of marijuana charge in the instant case, however, was amended to the completely separate and unrelated charge of reckless driving in violation of Code § 46.2–852. Reckless driving is not a lesser-included offense of possession of marijuana. Compare Code § 46.2–852, with Code § 18.2–250.1. In other words, ‘the elements of the offense [ ] of which [Dressner] was convicted’ were not ‘subsumed within the [possession of marijuana charge]’ and did not ‘form the sole bas[i]s for the conviction[ ].’ Necaise, 281 Va. at 669, 708 S.E.2d at 866. Thus, the possession of marijuana charge was necessarily ‘otherwise dismissed’ within the intendment of Code § 19.2–392.2(A)(2).” Dressner v. Commonwealth, 285 Va. 1, 6, 736 S.E.2d 735, 737 (2013).

2) Plea of not guilty or no plea with no finding of sufficiency of the evidence. The Virginia Supreme Court has determined that a petitioner is eligible for expungement where a charge is dismissed without a guilty or no contest plea and without a finding of sufficiency of the evidence.

For example, where the petitioners did not enter pleas and performed certain requirements set by the judge before dismissals were entered, the Virginia Supreme Court “liken[ed] the dismissals ... to a nolle prosequi or accord and satisfaction; each dismissal took place without a determination of guilt, without a finding of evidence sufficient to establish guilt, and without penalties or [285 Va. 7] conditions imposed by judicial authority.” The petitioners occupied the status of innocent and were persons whose charges had been ‘otherwise dismissed’ under the expungement statute. Dressner v. Commonwealth, 285 Va. 1, 6-7, 736 S.E.2d 735, 737 (2013) explaining the decision in Brown v. Commonwealth, 278 Va. 92, 677 S.E.2d 220 (2009).

d. Absolute Pardon and Wrong Person Convicted. There are also provisions for expungement based on an absolute pardon from the governor for a crime that the petitioner did not commit [19.2-392.2(G)] and for a dismissal in which the court found person arrested or charged was not the person named in the charging document [19.2-392.2(H)].

3. Manifest Injustice Requirement. To be successful, the petitioner must also show “that the continued existence and possible dissemination of information relating to the arrest of the petitioner caused or may cause circumstances which constitute a manifest injustice to the petitioner.”

4. Procedure. Strict compliance with the procedures is required. Any imperfection in the petition or the process can result in dismissal of the petition.
a. File the petition in the Circuit Court of the city or county where the charge was brought and dismissed. The petition must include specified information about the charge: date of arrest, name of arresting agency, the charge to be expunged, date of the final disposition, petitioner’s date of birth, petitioner’s full name at the time of the arrest. A copy of the charging document must be filed with the petition or the petition must explain why a copy is not reasonably available. [19.2—392.2(C)].
b. Serve a copy of the Petition on the Commonwealth’s Attorney for the jurisdiction where the petition is filed. [19.2-392(D)].
c. After filing the petition, the petitioner must take a copy of the petition to a law-enforcement agency and have that agency take fingerprints. The agency must submit the fingerprints and the copy of the petition to the Central Criminal Records Exchange (CCRE). The CCRE must then provide the Circuit Court with the petitioner’s criminal history, copies of the source documents that resulted in the CCRE entry, and the petitioner’s fingerprints. The fingerprints are provided to the petitioner after a hearing. The court may also destroy the fingerprints if an order is entered without a hearing. [19.2-392(E)].
d. If the expungement petition is granted, then the court will refund the filing fee to the petitioner. However, the cost of serving the petition on the Commonwealth’s Attorney is not refunded.

5. Is a hearing required? The court may enter the expungement order without a hearing if the Commonwealth’s Attorney provides written notice that he or she does not object to the petition. For a felony, the Commonwealth’s Attorney must also agree that “the continued existence and possible dissemination” of the charge “causes or may cause …a manifest injustice to the petitioner.” [19.2-392.2(F)].

6. Result. Upon entry of the expungement order, the court will promptly remove the record from the court’s website. The Virginia Department of State Police will issue a letter a few months after the entry of the expungement order that confirms removal of the petitioner’s charge from their records.

 

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DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

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DUI & Traffic Court Lawyer

Two ASAP Non-Compliance Cases Dismissed This Week

Two ASAP Non-Compliance Cases
Posted by Mark Matney of Holcomb Law, PC Newport News, VA
www.matneylawpllc.com
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This week judges in two different cities dismissed ASAP show cause violations against my clients.  Both cases involved someone who triggered an ignition interlock violation soon after the machine was installed.  They completed six months with no new interlock problems before their court dates and remained in full compliance with respect to classes and payments.  It is important when dealing with an ASAP violation of any type to be straightforward with the ASAP case manager, to avoid any new issues, and to maintain strict compliance after the incident.

DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

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DUI & Traffic Court Lawyer

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Dismissal of Brandishing a Firearm

Defending against a charge of brandishing a firearm requires carefully evaluating the language of the Virginia Code and comparing it to the facts and circumstances of the case.  The brandishing code section applies whenever someone points or handles a firearm in a manner that reasonably induces “fear in the mind of another.”  There is a exception for self-defense.  In our case, my client was charged with brandishing a firearm by the police officer who arrived and saw him pointing a gun at his friend.  At the trial, the friend was not called as a witness.  After cross-examining the police officer and questioning two neutral witnesses, it became clear that the person who the gun was pointed toward had been asked to leave the property twice and that one of the witnesses had actually escorted him from the property.  It was also evident that he supposed victim had continued to advance toward my client despite being told to stop and to leave the property.  The officer and the witnesses did not provide any statements that indicated that the gun had actually “induce[d] fear in the mind of another of being shot or injured.”  In fact, the continued advancing toward the weapon showed that he was not afraid.  Other factors that the judge considered were the intoxication of the supposed victim and that my client was the one who had called the police.  Brandishing is not to be taken lightly, but this charge can be successfully defended by analyzing the facts and challenging whether the officer or prosecutor has proven the elements set forth in the Virginia Code.

Virginia Code § 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

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Is driving over 80 MPH still considered Reckless Driving by Speed in Virginia?

Driving Over 80 MPH
Posted by Mark Matney of Holcomb Law, PC Newport News, VA
www.matneylawpllc.com
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Yes and No. On July 1, 2020, Virginia changed the Reckless Driving statute to raise the presumptive speed for reckless driving from 80 mph to 85 mph regardless of the speed limit.  However, the legislature kept the language that speeding 20 mph over the limit is considered Reckless Driving (e.g., driving 55 mph or more in a 35 mph zone).  The result is that if you are driving at 85 mph or more, you can be charged with reckless driving even in a 70 mph zone.  However, you can also be charged with reckless driving if your speed is more than 20 mph over the limit no matter what the speed limit is.

Reckless Driving is a serious criminal charge.  It is a class 1 misdemeanor which means that there is the possibility of a jail sentence, a significant fine and even a license suspension. We would gladly help you achieve the best possible result for your situation.

The Code section for Reckless Driving by Speed is:  § 46.2-862. Exceeding speed limit.

A person is guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of 20 miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of 85 miles per hour regardless of the applicable maximum speed limit.

Submitted by attorney Abigail Hockett.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

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DUI - DWI Lawyer

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Expungements of Trespassing, Public Intoxication & Petit Larceny Charges.

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News VA
www.matneylawpllc.com


I recently obtained expungements for four clients with prior charges of trespassing, public intoxication, and petit larceny. Sometimes people ask why they should seek expungement when the charge was dismissed. When your criminal history is searched, everything you have ever been charged with appears in the record. It does not matter whether you were found guilty or not guilty - the fact of being charged will continue to appear. This means that you could have to explain the dismissed charge to a potential employer. An expungement removes dismissed charges from your criminal record and avoids the awkwardness of having to explain these charges to employers or others who are interested in your record.

Many employers believe that where there is smoke, there is fire. If they have to choose between a potential employee with a clear criminal history and someone who was charged with a misdemeanor, then they select the person whose record is clear.

To qualify for an expungement, the charge must have been dismissed. The dismissal can be accomplished by not guilty, nolle prosequi or other dismissal. However, dismissals after a first offender program or a finding that the evidence was sufficient are not eligible.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

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DUI - DWI Lawyer

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Not Guilty of DWI / DUI, 2nd Offense

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News VA
www.matneylawpllc.com


This month I helped a client charged with DWI 2nd offense and Refusal 2nd offense. To achieve a not guilty decision, we had to show that the evidence was not sufficient for the judge to find my client guilty beyond a reasonable doubt. In this case, my client made good decisions during his contact with the police that helped me win his trial.

The police approached my client due to an accident. He cooperated with the police, but refused to participate in any field sobriety tests and declined a handheld preliminary breath test (PBT). A driver is not required to complete these tests. He also refused to submit to the formal breath test on the Intoxilyzer EC/IR II at the police station. Refusing a breath test results in an additional charge of Refusal. However, it also avoids a presumption of being under the influence. Additionally, the lack of a blood alcohol level and field tests meant that the officer was limited to testifying about my client’s appearance. When combined with a detailed timeline of my client’s activities and a description of his medical issues, the judge concluded that there was a lack of evidence that my client was under the influence at the time of the driving.

The dismissal of the 2nd offense DWI avoided 20 days mandatory minimum jail, three years license suspension, $500 minimum fine and completion of ASAP. Although refusing the breath test helped him avoid the DWI conviction, it did result in a refusal conviction that he appealed.

 

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

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What happens if the officer does not appear for court?

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News, VA
www.matneylawpllc.com


It depends. If the officer is on a list for an approved absence, then the judge will usually continue the case to the officer’s next available date. This applies to officers who are in training, called up for military duty, or sick.

However, sometimes a judge will dismiss a case even when the officer is on an approved absence list if the officer was not available for court previously. For example, in one Newport News case this month the judge dismissed the charge of reckless driving by speed, 56/35, when the officer was on sick leave for two separate court dates.
When police officers leave their police departments, their cases are usually dismissed. This week a Hampton officer’s departure resulted in the dismissal of Reckless Driving – Accident and a Newport News officer’s resignation resulted in the dismissal of Reckless Driving - Parking Lot.

What if the officer doesn't have the
calibration certificate for the radar or lidar?

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News VA

www.matneylawpllc.com

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The law enforcement officer must provide a certificate of accuracy that is dated within six months preceding the date the motorist was stopped. Otherwise, the speeding or reckless driving by speed may be dismissed. The officer is not required to show the certificate to the judge unless the motorist or his lawyer requests it.

I regularly review the law enforcement officer’s calibration certificates as part of representing my clients. The officers are professional and usually have their documents, but in the past two weeks two clients have benefitted from dismissals when officers did not having the necessary certificates. In one case, speeding 38/25 in Newport News, the officer did not have his lidar certificate. In the other case, speeding 45/30 in Hampton, the officer’s radar certificate was outdated.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

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DUI - DWI Lawyer

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Attorney Mark Matney - Holcomb Law, PC - Traffic Court Attorney - Newport News Virginia

Attorney Mark Matney - DUI Lawyers - Traffic Court Attorneys - Williamsburg, Newport News, Hampton, YorktownReckless Driving by Speed, 43 in 30

Posted by Mark Matney of Holcomb Law, PC Newport News VA
www.matneylawpllc.com
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This morning my client’s speeding case was dismissed! The officer was operating stationary Lidar (laser) in a 35 mph zone just past the point where the speed limit changed from 35 mph to 30 mph.

When I asked the officer for the certification for his lidar equipment, I found that he did not have a certificate that covered the date when my client was stopped. The Virginia Code provides that “no calibration or testing of such device shall be valid for longer than six months” (Sec. 46.2-882). The officer’s certificate must be dated during the six months preceding the date of the stop. It cannot be dated after the stop or more than six months before the stop.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer

Call Attorney Mark Matney at
(757) 703-4556