Common Criminal Defense Questions
What Should I Do if I Get a Call that a Relative or Friend Has Been Arrested?
If you get a call from a relative or friend stating that they have been arrested, try to obtain as much information as possible. Useful information includes any information about the arrest, the name, birth date, and social security number of the person that was arrested, the name of the offense or offenses that the person has been charged with, the law enforcement agency that made the arrest, where the person is being held, whether any bail has been set, and if so, what the amount is.
What Are my Rights if I Have Been Arrested or Accused of a Crime in Virginia?
Those accused of crimes have certain rights guaranteed by the Virginia Constitution and the United States Constitution. These rights include, among others, the right to remain silent in order to avoid self-incrimination, the right to legal counsel, the right to reasonable bail, right to a jury trial, the right to be informed of the charges against you, the right to confront any witnesses against you, as well as numerous other rights.
Moreover, a criminal defendant is also presumed innocent until proven guilty. This means the government has the burden of proving a defendant guilty beyond a reasonable doubt. A defendant does not have to do anything or say anything to prove he is innocent. Also, a defendant cannot be forced to testify against him or herself at their own trial.
There are also laws and constitutional protections concerning search and seizure which require police to obtain a search warrant before they are allowed to search a specific place.
How Can I Get the Charge Taken Off of My Record (an Expungement) In Virginia?
In Virginia, in order to be eligible for an expungement, you must have been acquitted (found not guilty by a judge or jury), the prosecutor must have moved for a nolle prosequi (dismissal without prejudice), or the charge must have been "otherwise dismissed," which includes dismissal by accord and satisfaction.
The procedures that must be followed to expunge a charge that is properly subject to expungement are as follows: (1) File a Petition for Expungement. A petition must be filed setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge. The petition should state why the continued existence of the charge on your record is prejudicial to you. The petition must be filed in the circuit court of the county or city where the case was disposed of. You must include the date of arrest and the name of the arresting agency. The petition should also include the specific criminal charge to be expunged, the date of the final disposition of the charge as set forth in the petition, your date of birth, and the full name used by you at the time of arrest. (2) Attach a Copy of the Warrant or Indictment to the Petition. This can easily be obtained from the clerk of the General District Court or Circuit. (3) Serve a Copy of the Petition Attorney for the Commonwealth of the City or County in Which the Petition is Filed. The attorney for the Commonwealth is technically a party so they must be served or the court will not go forward with your petition. Also, the attorney for the Commonwealth may file an objection or answer to the petition within 21 days after it is served on him. (4) Obtain from a Law-Enforcement Agency One Complete Set of the Petitioner's Fingerprints and Shall Provide that Agency with a Copy of the Petition for Expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of your criminal history, a copy of the source documents that resulted in the CCRE entry that you wish to expunge, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to you. (5) Go to the Hearing. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to your arrest causes or may cause circumstances which constitute a manifest injustice to you, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if you have no prior criminal record and the arrest was for a misdemeanor violation, you shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall direct the manner by which the appropriate expungement or removal of such records shall be effected.
What is the Difference Between a Misdemeanor and a Felony Charge in Virginia?
Crimes are divided into two categories, based on the seriousness of the crime: misdemeanor and felony. In general, a misdemeanor is a crime where the maximum penalty is one year or less. A felony crime is a more serious crime that can result in jail time for much more than one year. Felony charges can also bring a number of other consequences if the defendant is convicted.
In some circumstances, a crime can be considered a misdemeanor or a felony, depending on the specifics of the case. For instance, theft can be either petit larceny (a misdemeanor) or grand larceny (a felony). The only element which separates the two offenses is the amount alleged to have been stolen. If the amount is $200 or more, the offense is a felony, if the amount is less than $200 then the offense is a misdemeanor. A skilled defense attorney can improve your chance that your crime will either be charged or reduced to a lesser offense.
What is a Summons and Why Did I Have to Sign It?
In a misdemeanor case, the officer or magistrate may issue a summons instead of a warrant when there is reason to believe that the person being charged will appear in court. A summons commands the person charged to appear at a stated time and place before a court of appropriate jurisdiction. The person being charged is asked to sign the summons. By signing, you are agreeing that you will appear at the stated time and place for court. If you refuse to sign, the officer is required to arrest you. After arresting you, the officer will take you before a magistrate so that the magistrate can set the conditions of bail that are appropriate to ensure your appearance at court.
What Should I Do if I Have Been Arrested?
If you have been arrested, answer questions about your identification, such as name, address, and birth date truthfully. While you have the right to refrain from answering incriminating questions, lying is not a good idea and may very well constitute a separate offense that you can be charged with. Moreover, giving officers a hard time during the arrest process will not be helpful to you, but will make the process of resolving the case much more difficult.
What is Entrapment?
A person is 'entrapped' when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit. The law, as a matter of policy, forbids conviction in such a case. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the person. So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded, and that government officers or agents did no more than offer an opportunity.
On the other hand, if the evidence leaves a reasonable doubt whether the person had any intent to commit the crime except for inducement or persuasion on the part of some government officer or agent, then the person is not guilty.
For example, even though someone may have sold drugs, as charged by the government, if it was the result of entrapment then he is not guilty. Government agents entrapped him if three things occurred: First, the idea for committing the crime came from the government agents and not from the person accused of the crime. Second, the government agents then persuaded or talked the person into committing the crime. Simply giving him the opportunity to commit the crime is not the same as persuading him to commit the crime. Third, the person was not ready and willing to commit the crime before the government agents spoke with him.
The government must prove beyond a reasonable doubt that the defendant was not entrapped by government agents.
How Can a Person Get Out of Jail After an Arrest?
If bail has been set, the only way to get the person out of jail is to pay the bond for his/her release. However, in Virginia state court, the initial bail determination by a magistrate can be reviewed by a judge of the General District Court by way of a bond motion. Further, a ruling by a General District Court Judge can then be appealed and heard by a judge of the Circuit Court.
A bail bond is a little like insurance. A bail bond means that the suspect agrees to appear at all future legal proceedings. Failure to do so will most likely result in forfeiture of the bond, the issuance of an arrest warrant, and the loss of future bail privileges. In certain criminal cases bail may be denied. If the judge believes the suspect is a flight risk, or that the defendant is a danger to the public or himself, bail can be denied.
How Do I Know What Criminal Defense or Traffic Lawyer to Hire?
This is one of the most important questions that can be asked. Who you hire as an attorney can be the single greatest factor that will decide the outcome of your case. Many non-lawyers believe that all lawyers have the same training and skills, or that because an attorney advertises in a particular area, he has experience in that area. This could not be further from the truth. Please see the "Choosing a Trial Lawyer" page of this site for helpful information on this subject.
Do I have the Right to an Attorney?
A person absolutely has the right to an attorney; however, in Virginia unless a person is indigent, the state will not pay for the attorney. Moreover, even in situations where the state will pay, the attorneys only get paid a very small amount of money. Therefore, their incentive is to plead you guilty with the least amount of work. While some court appointed attorneys are good, most are not. It is almost always better to retain your own attorney. Is your freedom and future worth the small amount you may save by receiving a court appointed lawyer?
Do I Need an Attorney?
The answer to this question depends on the charge, but more often than not the answer is yes. However, there are circumstances where an attorney is not needed. We offer a free consultation. Feel free to contact us and discuss you case. Our services are in high demand; therefore, if you do not need an attorney, we will be happy to tell you so.
Did the Officer Need a Warrant to Arrest Me?
As long as the officer did not arrest you in your home, then an officer only needs probable cause to arrest you for a felony, whether or not the offense was committed in his presence. An officer can also arrest without a warrant for a misdemeanor committed in his presence. An officer can arrest for the following misdemeanors without a warrant even if not committed in his presence: (i) shoplifting, (ii) carrying a concealed weapon on school property, (iii) assault and battery, (iv) brandishing a firearm, (v) destruction of certain property. However, an arrest warrant is required, in the absence of exigent circumstances or consent, in order to enter a dwelling in which the suspect lives to effectuate an arrest.
Was My Arrest Illegal?
An officer needs probable cause to make an arrest. What constitutes probable cause is based on the totality of circumstances known to the officer at the time of arrest. Whether those facts add up to probable cause is a determination made by the judge upon an appropriate motion by defense counsel. The judge's decision will be guided by the thousands of written opinions issued by federal and state appellate courts. It is up to defense counsel to find the appropriate law and bring it to the judge's attention in the form of a motion. However, if the court finds that the arrest was illegal, the judge will likely suppress all the evidence obtained after the arrest, including physical evidence and confessions.
Did the Officer Have the Right to Search Without a Warrant?
A search warrant authorizes police to conduct a search of a specific, place such as your residence. In order for a warrant to be issued by a judge, "probable cause" to search must exist.
Probable cause to search means that: (1) It is more likely than not that the specific items to be searched for are connected with criminal activities; and (2) Those items will be found in the place to be searched.
The general rule is that warrants are required for searches. However, there are many exceptions to this requirement. In general search warrants are not required for the following:
• Searches incident to arrest: Police officers are permitted to search your body and/or clothing (and wingspan) for weapons or other contraband when making a valid arrest.
• Automobile searches: If you are arrested in a vehicle, the police may search the inside of the vehicle. If the car is impounded, a complete inventory of the vehicle can be conducted.
• Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
• Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
• Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You are not required to consent to a police search.
The exceptions to the warrant requirement are highly detailed and complex. There are thousands of court decisions setting forth the proper application of these exceptions and the law is in a constant state of flux. Each case must be analyzed based upon its individual facts and a detailed reading of the applicable case law.
Is My Confession Admissible?
To determine the admissibility of a statement or confession, you must first consider the person to whom the statement was given. Was the person a person of governmental authority (such as an officer or detective) or was the person a neighbor, friend, co-worker, boss, or loss-prevention officer? The laws governing the admissibility of statements depend on whom the statement was provided to. If the person to whom the statement was made falls into the second category, you generally are not protected by the Constitution as these people are not state actors. However, if the statement was provided to a person in authority, then the circumstances surrounding the confession must meet the requirements of the 5th and 6th Amendments or the statement will be inadmissible. These requirements are defined by thousands of written opinions from state and federal appellate courts.
Contact Attorney Kyle G. Manikas
To speak with a Northern Virginia criminal defense lawyer about state or federal criminal charges, contact Manikas Law LLC in McLean, Virginia (Tysons Corner) located in Fairfax County. To schedule a free consultation with attorney Kyle G. Manikas, call 703-873-7473 or toll-free at 888-503-8075. Feel free to contact us by e-mail as well.
