Dismissal of Brandishing a Firearm

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

Mark Matney

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.

Not Guilty of DWI / DUI, 2nd Offense

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

Mark Matney

DUI - DWI Lawyer

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Not Guilty of DWI / DUI, 2nd Offense

Posted by Mark Matney
Matney Law PLLC 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.

 

Reckless Driving in the Juvenile and Domestic Relations Court

DUI DWI defense attorney Abigail Hockett

Abigail Hockett

Associate Attorney at Matney Law PLLC

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Reckless Driving in the Juvenile and Domestic Relations Court

Reckless Driving
Posted by Mark Matney of Matney Law PLLC Newport News, VA
www.matneylawpllc.com
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Two recent cases demonstrate that extra preparation by minors can have an extraordinary impact on their cases. The two clients, both age 17 when they were stopped, were charged with reckless driving at speeds over 100 mph. I have seen Circuit Court judges on the Peninsula sentence minors to active jail time at these speeds. However, both of these clients had their cases dismissed. No reporting to DMV, no demerit points, no misdemeanor convictions, no insurance rate adjustments, no suspended licenses, no jail. The charges were outright dismissed.

For the first case, the young lady was placed on house arrest with an ankle bracelet pending the trial date. She was only permitted to leave her home to go to school and work and was not permitted to drive for most of the pretrial period. In addition to all of these complications, she volunteered many hours of community service before her court date. After court she had to avoid any new violations pending a review date. The second client, a young man, completed two driver improvement classes and volunteered before court. After the court hearing the judge required a significant number of additional community service hours and the avoidance of any new charges before his review date.

These clients helped me and my associate attorney, Abigail Hockett, to achieve the best possible results by following our preparation instructions and then exceeding the judge’s expectations before their review dates.

 

Trial in Absence Blog

Matney Law - DUI Lawyers - Traffic Court Attorneys - Williamsburg, Newport News, Hampton, Yorktown

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Trial in Absence

Blog - Trial in Absence
Posted by Mark Matney of Matney Law PLLC Newport News VA
www.matneylawpllc.com


Often people contact me who do not live locally and they ask whether they need to appear for court. For traffic infractions that do not involve an accident, I can usually appear on behalf of my clients. However, for misdemeanors and accident situations we have to look at each individual case to evaluate whether the judge would permit the client’s absence and whether we would be likely to obtain the best result in the client’s absence.

I had three recent cases in which I appeared on behalf of clients in their absence.
10/07/19: Speeding 76/60, amended to defective speedometer, which carries no demerit points.
10/10/19: Reckless driving by speed, 85 / 65, amended to improper driving, avoiding the misdemeanor and reducing the demerit points and the length of time the charge will be reported by DMV.
10/15/19: Speeding, 64/45, amended to defective equipment with no demerit points.

Guilty of Reckless Driving

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

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Guilty of Reckless Driving

Reckless Driving
Posted by Mark Matney of Matney Law PLLC Newport News VA
www.matneylawpllc.com


Mark, why are you writing about someone who was found guilty of reckless driving? To warn you not to make matters worse when you see police lights!

My client was charged with reckless driving by speed at a speed where judges will often amend the charge from reckless driving to speeding. However, instead of stopping immediately for the state trooper, my client just kept driving. The trooper testified that he activated his lights for ¾ mile but my client kept driving, that he then activated his siren, but my client kept driving, that she stopped for a red light, but took off again when the light turned green, and that she then continued driving despite lights and sirens. Finally, my client stopped suddenly in the left lane. The trooper graciously refrained from charging my client with evading / eluding police or from arresting her at the scene and instead issued her a summons for Reckless Driving by speed. However, the judge was not impressed when my client had no explanation for the failure to respond to the trooper’s emergency equipment and refused to amend the charge from reckless driving.

If you see police lights, then you are required to yield. Move promptly to the right lane or shoulder to permit the police to pass you. If you realize the police lights are for you, then pull off of the road as soon as possible. You may proceed to a safe place to pull over if there is no shoulder or no light, but do it quickly and do not pass reasonable places to pull over.

Where’s the beef

Charged with a DUI call Matney Law PLLC 757-784-3507

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Where’s the beef?

Posted by Mark Matney of Matney Law PLLC Newport News VA
www.matneylawpllc.com
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Where's The Beef...  Do you remember the Wendy’s commercial with the three ladies sliding around in the back seat of car as the searched for the beef in the competitors’ hamburgers?  Sometimes I face the situation of “Where’s the officer?” Often people ask me if their case will be dismissed if the police officer does not show up for court. The answer is … maybe! It depends on the reason the officer is not present, the type of case, and the judge.  Matney Law PLLC is a law firm located in Newport News Virginia, that specializes in DUI and Traffic Court defense.  Check out or Avvo Reviews...

If The Charge Has Been Less Serious

This morning a state trooper was not present for court and the judge announced that the trooper was working at an accident scene and would not be able to arrive within a reasonable period of time. Since the trooper had contacted the court with an explanation for his absence, the judge continued his cases. My client today is facing a very serious reckless driving charge that could result in jail time and license suspension, so he was glad to have the court date continued to a new day. However, if the charge had been less serious, such as a speeding ticket or a low speed reckless driving case, the judge may have been willing to permit us to proceed in the absence of the trooper.

Matney Law PLLC - DUI Attorney - Newport News VA

DUI/DWI Defense Lawyer - Newport News Virginia

In two other recent cases, however, the charges against my clients were dismissed when the police officer did not appear for court. These cases involved a trooper who did not appear and did not notify the court of an excused absence, such as training or illness. Both clients avoided Reckless Driving by Speed.  At other times, it is a witness who is missing. A client’s accident case (unsafe lane change) was dismissed last week when the officer’s witness did not arrive. Sometimes judges will give the police a continuance in this circumstance. However, I spoke with the officer and showed him my client’s driver improvement course certificate and other court preparations and the officer agreed to the case being dismissed instead of moved to a new date.

Not Guilty Your Honor!

Attorney Mark Matney - Newport News Virginia - DUI & DWI attorney

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Not Guilty, Your Honor!

Posted by Mark Matney of Matney Law PLLC Newport News VA
www.matneylawpllc.com
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A plea of Not Guilty is usually the best way to proceed in accident cases! Often accidents result in charges of Reckless Driving, Failure to Maintain Lane, or Following Too Closely. At trial, my goal for an accident case is dismissal of the charge unless there was a rear end collision (in which case my goal is improper driving). Matney Law PLLC serving Newport News, Hampton, Yorktown, Williamsburg.   Avvo Lawyer Reviews...

Involve Testimony

Accident cases often involve testimony from witnesses who are not police officers. These witnesses, whether other drivers who were caught up in the accident or bystanders, help the police explain to the judge the reason for the charges. The problem for the police officer is that as soon as his witness describes the accident differently than my client, the judge has to question which version to believe. Judges grade according to the standard of Beyond a Reasonable Doubt. My role is to emphasize the differences among the various explanations so that the judge has enough doubt to dismiss the charge.

Matney Law PLLC - Newport News - accident case dismissal

DUI/DWI Defense Lawyer - Newport News Virginia

Importance of Going to Trial

One August accident trial illustrates the importance of going to trial. My client was charged with Unsafe Lane Change after her car and the other vehicle collided side to side. Two descriptions of the accident could hardly have been more different. The other driver said that my client moved from the far left lane into the center lane where he was driving and caused the accident. My client and her witness stated that the other driver was in the far right lane and cut them off when he moved into the center lane. What?! Were they even describing the same accident? The judge dismissed the charge against my client and explained that he could not find her guilty because the testimony was conflicting and the vehicle damage was consistent with the statements of both parties.