Marijuana isn’t legal in Virginia yet! | Sara Gaborik Lawyer VA

Marijuana laws Virginia

Slow down, Virginia, marijuana isn’t legal here yet!

August 29 2014

Although many states have taken the leap and legalized marijuana, it’s still illegal in the Commonwealth of Virginia. Unfortunately for many of our clients, the laws against owning, possessing, manufacturing, distributing, and selling marijuana are not only in effect, but rigorously enforced. The range of penalties for breaking Virginia’s marijuana laws range from fines and community service to months and years in jail.

If you are found in possession of less than a 1/2 an ounce of marijuana, that is considered ‘simple possession’ in the Commonwealth. It’s punishable by fines, loss of license, and up to 30 days in jail on a first offense and up to 12 months in jail on a second offense.

If you are found in possession of more than a 1/2 an ounce of marijuana, or possess your marijuana in such a way as to make law enforcement believe you intend to sell or distribute it, you can be charged with a felony. Felony possession of marijuana of more than one half ounce but not more than 5 pounds is punishable by fines, loss of license, and up to 10 years in jail. Someone found to be in possession of more than five pounds of marijuana is facing a felony punishable by imprisonment of not less than five nor more than 30 years.

The punishments for any marijuana offense typically increase with each subsequent conviction.

Notably, the marijuana possession laws in Virginia allow you to possess the drug if you have a valid prescription. The key word in the statute is “valid.”  Although many states allow citizens to obtain prescriptions for marijuana, which then in turn allow them to legally possess marijuana in that state, usually the prescriptions specifically say that they are not valid outside of whichever state it was issued in.

For those charged with possession of marijuana for the first time, they may be able to take advantage of one of Virginia’s first offenders programs. These programs typically require participants to take random drug screens, complete substance abuse classes and community service, as well as other tasks. Successful completion of the program can result in significant reductions in sentencing and may even lead to ultimate dismissal of the original charge. The programs and their applicability vary from court to court, but are aimed at helping first time offenders recognize whether or not they have an addiction to narcotics and, if so, begin treating that addiction. Clients of ours who have taken advantage of the first offender programs have reported that the information they received in the program helped them to realize their addiction and start making significant strides towards sobriety.

With so many serious consequences, it pays to know how police can charge you with marijuana possession and related offenses. If you are traveling the highways of the Commonwealth, it is surprisingly easy for a routine traffic stop to turn into a full scale search of your person and car. Under current Virginia law, if a police officer has pulled you over for a legitimate traffic offense and, during the course of the stop, smells what he thinks might be marijuana, the officer has a right to search you, your car, and most of your belongings inside the car. This is true even if they have only pulled you over for a relatively minor infraction. We have encountered many serious drug possession cases that started with the client being pulled over for anything from speeding to a malfunctioning brake light.

The laws for searching you, your belongings, and your home when police officers smell marijuana are substantially similar to the rules that apply during traffic stops.  The particularly harmful part of these laws is that regardless of whether police actually find marijuana, you can still be charged and held criminally responsible for whatever they find during the search. It is not uncommon for a police officer to think he smells marijuana, conduct a search, and find something other than what he thought he smelled. So long as he can convince the court that he originally smelled marijuana, the results of the search will likely be admissible in court.

It is important to remember, though, that even with the standard for searches based on the odor of marijuana being as low as they are, you still have rights. If a police officer is asking for your permission to search you or your car, you ALWAYS have the right to deny him that permission. This is a right that you shouldn’t be afraid to exercise, and always should exercise, no matter what’s in your car, pockets, or elsewhere. By agreeing to a search, you make it much easier for police to invade your privacy, and you likely also eliminate several good defenses to any criminal charges that might result from a search. Believe me, if the officer thinks he has the right to search you, he’ll search you whether or not you give consent. We always tell our client that if a police officer asks, instead of simply searching, it’s because they don’t have the authority to search you. Be polite but firm in denying him permission to conduct the search. FYI–Your refusal to let officers search you can’t be used against you!

Another right you always have–and should always use–is the right to remain silent. If officers do search you and/or your car and ultimately find something illegal, you do NOT have to tell the police ANYTHING. Anything you say at that point can and will be used against you. The best course of action in this kind of situation is to keep quiet and ask for  a lawyer. Usually, once officers suspect you of a crime, there isn’t anything you can say or do to convince them otherwise. So be quiet and ask for a lawyer.

Obviously the best defense to marijuana possession (or any other crime) is to follow the laws. However, if you (or a loved one) do find yourself in the wrong seat of a police car or holding a court summons, remember your rights and then give us a call here at the Law Offices of Sara M. Gaborik. We will be happy to discuss your case and our services with you.

 

Police Brutality in Virginia Doesn’t Have to be the Norm | Sara Gaborik

Police Brutality virginia

Police Brutality Doesn’t Have to be the Norm in Virginia or Anywhere

August 15th 2014

by Sara Gaborik

In light of recent events in Ferguson, Missouri, many are seeking ways to safeguard their community against police brutality.  Sadly, there are members of law enforcement who abuse their power and use excessive force.   In over a decade of practice, I have seen countless cases involving police brutality but as a whole, most officers do not take advantage of their position.  However, officers who do are typically habitual offenders.  The number one solution is to demand that all law enforcement wear body cameras when on duty.  Studies show that when encounters with the public are recorded, incidents of police brutality become almost non-existent.  In Rialto, California, a year-long study showed an 88% decrease in complaints filed since their police force instituted body cameras.   Just this week, in response to recent cases of brutality and an opinion from a Federal Court case suggesting this as a solution to 4th Amendment violations as well, NYC officials proposed all law enforcement wear body cameras.

Law enforcement and prosecutors alike should be banging down the doors of City Hall demanding funding for this valuable tool.   Imagine how effective a prosecution could be with the judge, jury, and Defendant seeing firsthand the actions that led to a stop and arrest.  Yet neither side is pushing for officers to wear cameras – in fact,  some localities are vocally against the practice.  But why?  The only answer is that both are fully aware body cameras would end the practice of effectuating arrests using illegal tactics.  Using cameras would mean no more 4th Amendment violations swept under the rug, no more falsifying alleged statements, no more exaggeration of alleged actions by the Defendant, and no more downplaying the use of force in used to make the arrest.

If we want communities to trust those who are there to protect and serve, then there needs to be transparency in everything that they do.  Incidents like the one that occurred in Ferguson would no longer occur at the alarming rate they are now, and if things do happen, there would be no question whatsoever about who did what.  Officers should welcome this technology as a tool in combatting false claims of police brutality or in instances of officer-involved shootings.  My brother-in-law was recently involved in such a scenario and was completely cleared of any wrongdoing by his body camera, which he voluntarily opted to wear.  His rationale in requesting the camera in the first place was he had nothing to hide.  He is extremely thankful for his foresight and continues to wear his camera daily.

In the long run, body cameras will create a stronger support of law enforcement within the communities they police and be a cost effective tool for the prosecution of crimes.  As a Nation, we should demand that all law enforcement be required to wear body cameras and that all law enforcement vehicles be equipped as well.  Once we develop this kind of transparency, we can rebuild trust in those sworn to protect and serve and begin to have a true system of Justice that holds everyone involved responsible, no matter which side of the aisle they sit on.

 

Avoid Weekend Holiday DUI, Speeding, and Reckless Driving in Virginia

“Tips for a Safe Fourth of July Celebration in Virginia”

Or, “How to Avoid a Reckless Driving, Speeding, DUI, or Other Driving-related Offense in the Commonwealth of Virginia this Holiday Weekend.”

Being arrested on a weekend Holiday for a DUI in VA should be avoided at all costs. Because the Fourth of July is finally here, and many of us are already looking forward to a long weekend full of cookouts, fireworks, and celebrations with friends, we hope you enjoy your holiday. And we want to share with you a few tips to help keep your weekend be safe and worry-free.

  • Checkpoints: You aren’t the only one who knows this weekend will be full of parties and celebrations. Your local police force knows this, too. They also know that the number of people driving under the influence will be high because of all of that celebrating. To fight this increase in unsafe driving, many police departments will set up DUI checkpoints this weekend. In the Commonwealth of Virginia, checkpoints must be registered and the details of a checkpoint must be published ahead of time. So take the time to check your local newspaper or social media sites and be on the look-out for an increased police presence throughout the long weekend.

  • Cruise Control: When travelling on the highways to and from your get-togethers this weekend, keep your cruise control set on 79 miles per hour in 70 miles per hour zones. Although speed limits across the state have increased, the threshold for reckless driving by speed—80 miles per hour—has not changed. This means that even if the posted speed limit is 70 miles per hour, you can be ticketed for reckless driving by going 81 miles per hour—just 11 miles over the speed limit. Keeping your cruise control set at a speed of no more than 79 miles per hour while travelling in 70 miles per hour zone will keep you from getting a charge that can cost hundreds of dollars more than a speeding ticket and could have a negative effect on your driver’s license points and insurance rates.

  • Stay hydrated and well-rested: Symptoms of fatigue and dehydration can often times be confused with signs of intoxication. So even if you’re driving poorly due to being over-tired or because you didn’t drink enough water at the barbeque, a police officer can still pull you over on suspicion of DUI. To combat this, make sure you drink plenty of water and only drive if you are fully rested, sober, and feeling good.

  • Mopeds: Beginning on July 1, 2014, Virginia law requires that all mopeds operated within the Commonwealth to be registered and titled. This change gives police officers a new crime to charge Virginia drivers with, so make sure your paperwork for your scooter is up to date before travelling around town this holiday. Visit the DMV’s website to see a list of fees for titling and registration. (Link: http://www.dmv.state.va.us/webdoc/pdf/dmv201.pdf)

  • Moderation is key: Cookouts and get togethers, especially over the holidays, can some times lead people to over-indulge. Although an extra piece of pie or a second hot dog doesn’t usually result in criminal charges, keep in mind that having an extra beer or a second margarita certainly can. Consuming too much alcohol can not only put you at risk for a DUI conviction, but may also lead public intoxication (or “drunk in public”), assault, and destruction of property charges. Also remember that when the temperatures rise, our bodies lose more liquids and nutrients, which can heighten the effect of alcohol. Too much alcohol can change your decision-making processes, so be careful with what you drink and always err on the side of moderation. (And if you want a criminally-good spin on apple pie that you definitely won’t be able to enjoy in moderation, check out http://bloghungry.typepad.com/blog/2010/04/brie-and-apple-tarts.html)

  • Your right to refuse: The best defense is often a good offense—which is why we tell our clients that they should never drink and drive. That is especially true on holidays where there are more drivers on the road. However, if you do find yourself stopped and accused of drunk driving, don’t forget your right to refuse. You have an absolute right to refuse to participate in any and all field-sobriety tests, and you also have a right to refuse to take a breathalyzer test. While refusing a breathalyzer carries a penalty in Virginia—a fine and a suspended license for one year on your first offense—that penalty is much less severe than the consequences of a DUI. A DUI carries with it the possibility of jail time, fines, enrollment in substance abuse treatment, loss of license, and the requirement that you install an ignition interlock system in your car. Although you can still be convicted of a DUI even if you refuse to take a breathalyzer, it is much more difficult for the Commonwealth to prove its case against you if they don’t have proof of you blood-alcohol content (BAC). So if you are stopped this weekend (or any time!), don’t forget that you have the right to just say “no.”

  • Be polite, but know your rights—We hope that you can enjoy your weekend without having any interactions whatsoever with your local police force. But if you are accused of a crime this holiday, remember that being polite and cooperative does NOT mean you have to give up your rights. Any time you are stopped by police, your first question should be, “Am I under arrest?” If the answer is no, then politely gather your belongings and leave. A police officer has the right to stop you on the street and ask you questions, but you also have the right to politely decline to answer those questions. If you are placed under arrest, the only thing you should ever say to law-enforcement is, “I want to speak to my lawyer.” Attempting to explain your situation—even if you’re attempting to deny the charges—will usually not work out well for you. They can (and will) use your words against you in court. The best way to avoid this, and to avoid them misquoting you or taking your statements out of context, is not to make statements in the first place. Besides, if an officer has arrested you and accused you of a crime, your explanation will likely not change his mind. So exercise your right to be silent, and don’t explain the situation to anyone except your lawyer.

The Fourth of July can be a fun, relaxing, and enjoyable start to the summer season. We hope that your weekend will be full of nothing but good times, but if you or someone you know encounters a problem with law-enforcement—from speeding and reckless driving tickets to DUI’s, drug charges, property crimes, or violent offenses—don’t hesitate to give us a call here at the Law Offices of Sara M. Gaborik. We always provide aggressive, personalized representation, and are happy to provide discounts for seniors, students, and members of the Armed Forces.

 

 

NOT GUILTY DOES NOT NECESSARILY MEAN INNOCENT IN VIRGINIA

Traffic tickets virginia

“NOT GUILTY DOES NOT NECESSARILY MEAN INNOCENT IN VIRGINIA”

June 14 2014

By Sara Gaborik

DISCLAIMER : Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case.

Q : If I’m guilty of a traffic or criminal charge in Virginia why wouldn’t I just plead guilty?

A : This question comes up a lot in my practice, and rightfully so. The difference between “not guilty” and “innocent” isn’t always obvious, but it’s important—“not guilty” does not have to mean (and usually doesn’t mean!) “innocent.”

The law requires a prosecutor who brings a case against you to prove every element of the crime alleged beyond a reasonable doubt. If the prosecutor fails to meet this burden, the only possible, legal, and right outcome is a “not guilty” verdict. We can reach this verdict in a variety of different ways.

First, though people are sometimes wrongly accused of crimes they did not commit, a far more common occurrence is someone being over-charged. Perhaps you did do something wrong, but the prosecutor and police are alleging that you did something far more serious than what actually happened.

Second, it can also happen that even if you did exactly what the government says you did, the prosecutors and police did not follow Constitutional laws and requirements when they obtained the evidence they want to use against you. Examples of this include searching you or your property without probable cause or reasonable suspicion, not following proper procedures when asking people to identify the perpetrator of an alleged crime, and obtaining a confession from you without letting you know about your rights beforehand.

[As a side note, this is the number one reason you should NEVER consent to a search or tell the police anything. There are many complicated, complex laws that protect you from searches and seizures by police. Law enforcement must follow these laws, and if they don’t, any and all evidence they find during their search and seizure of your person and/or property cannot be used against you in court. However, the police know that they can get around these laws by obtaining your consent to search or speak to you. Don’t do their job for them by agreeing to a search or agreeing to talk—your liberty is at stake!

A good rule to keep in mind is that if the police are asking to search you or your property, it’s because they know they don’t have the right to search you or your property. If a police officer asks to search you, there is absolutely nothing wrong with telling them to leave if they’re at your residence, or asking to be on your way if they’re at your vehicle. Keep in mind, once a police officer has decided to arrest you, there isn’t much you can say to change their mind, so keep your mouth shut! Police are trained in using interrogation tactics designed to make you talk and incriminate yourself. The only foolproof way to beat these interrogations is to politely decline to speak to them and to ask for your lawyer. Remember—you can be polite without cooperating and incriminating yourself! Law enforcement can never use your decision not to speak to them against you in court.]

Both of the scenarios discussed above—over-charging and failure to properly obtain evidence—can lead to not guilty verdicts, even if you did commit a crime. Simply because you aren’t innocent doesn’t mean you can’t walk away with a not guilty. But how?

In the first example, cases that are over-charged can sometimes be good ones to take to trial, before either a judge or a jury. As a seasoned trial lawyer, I know how to attack and weaken the prosecutor’s case, and how to show the fact-finder that the government hasn’t proven what they need to prove to convict you.

In the second example, there are several very specific motions that can and should be filed. After handling thousands of cases during my professional career, I’ve learned how to be creative, accurate, and precise with my motions. Good motions in cases where evidence was improperly obtained typically lead to the suppression of that evidence, and suppressed evidence typically leads to not guilty verdicts.

Now, certainly there are some cases where a not guilty verdict isn’t a realistic outcome. However, even in those cases, I know how to find weaknesses in a prosecutor’s case and exploit those weaknesses in order to obtain a favorable plea bargain.

So, just because there may be evidence against you, including your own statements, doesn’t mean you have to throw in the towel. I often say I specialize in tackling bad facts and turning negatives into positives. I take great pleasure in putting the government to the test and making them work hard to prove their cases. My philosophy has always been the harder I work for my client, the better the outcome—and fortunately for my clients, I like hard work and love good outcomes.

Call today for a free consultation and let’s talk about how I can work for your better outcome today.

 (804) 780-3083

An experienced and aggressive lawyer serving Richmond, Henrico, Chesterfield and nearby Central Virginia communities: THE LAW OFFICES OF SARA M. GABORIK WILL FIGHT FOR YOU.