When Should I Seek a Protective Order?

In any family law situation, whether it’s a divorce, child custody, or support case, emotions can run high and can even turn violent. Family violence has a broad definition and can include physical violence, emotional abuse, threats, threatening behavior, or harassment. If you find yourself on the receiving end of these acts; there are several things that you should do right away; you can call the police and/or seek a protective order.

First, you should try to document the situation. It may not be possible to actually record the situation but once you feel safe you can memorialize what happened through writing it down or texting friends or family. You should also decide if police intervention is necessary. If you are in fear for your safety, your first call should always be to the police.

Calling the police can be an extreme step in these types of matters as it may end up with one party being arrested and criminally charged.

If the police believe that the incident warrants further intervention, they will usually remove one party from the home and give the victim advice about seeking a protective order, and some will go so far as helping the victim get an emergency protective order. Either way, the police will make an incident report with the date, time, location, and responding officers to the scene. This will create a record that can be used later in your case, if necessary.

If you do not call the police at the time of the incident, and you have a continuing fear of the other party, you can still seek a protective order on your own. You will have to go to your local magistrate and swear to the facts of the situation that lead you to seek the protective order. You must show there is a credible fear and a continuing fear of other party. If you have children, you may want to add your child to your request for a protective order. If the magistrate believes that a credible threat exists, you will be awarded a preliminary protective order which will last until the court is able to have hearing, usually two weeks.

If you are afraid of your spouse, it is best to not wait to seek a protective order. The more time that you let lapse between the incident and seeking the protective order, the less likely it is that you will get the relief that you are seeking.

Frequently, we receive phone calls from people who will discuss what their significant other did a few months ago, or even years ago, and then want to know about seeking a protective order. If you have waited a significant amount of time and have continued living together, the court will not grant your request for a protective order. If there has been a recent incident, you may want to bring up prior incidents in the hearing to show the court the pattern of behavior and risk to your safety. If you move out as a result of a violent incident, you should remain out of the home until your protective order case can be heard. With all protective orders, you can request the court dismiss it in the future if necessary, but it’s hard to get it back once it’s gone.

Family violence is very serious and if you have been a victim or have been accused of family violence it is very important to contact one of our experienced attorneys at Melone Hatley to help you through this process. Contact us for a phone consultation today.

I’ve Been Served With A Protective Order, What Do I Do Now?

Protective Orders can be one of the most alarming and hard to understand aspects of family law. A spouse can get a protective order against you and have you removed from the home within a matter of hours. Then you will have to stay out of the home, having no access to your belongings, until the court is able to have a full hearing, which can take up to two weeks. So, if you find yourself in the position where a protective order has been taken out against you; it is imperative that you do the following:

  • When the police make contact to remove you from the home make sure to grab clothes, cell phone chargers, work items, car keys, and anything else that you may need for the next two weeks. Generally, you will only have a few minutes to grab everything that you need, and you are almost always caught by surprise; so this part can be difficult.
  • Make sure to keep the paperwork that the police give you. This part is important because it will have the relevant court dates.
  • DO NOT contact your spouse under any circumstances; even if your spouse is texting/calling/emailing you, do not respond. Further, do not have anyone you know reach out to your spouse to speak with them. You can get a protective order violation that sticks with you even if the overarching protective order is dismissed. Any violation of a protective order can be a misdemeanor, which carries additional criminal penalties.
  • Frequently a protective order will cover your spouse and not your children. This means that there are no restrictions on you seeing your children, but you will not be able to contact your spouse to coordinate visitation.
  • Generally, if you are served a protective order there will be hearing that will follow. It is imperative that you are able to protect your rights during this hearing—a protective order can last up to two years; during those two years you may have to continue to pay all bills for your spouse as well as support yourself.

Protective orders are very serious and can have a large impact on your rights. If you have been served a protective order, contact one of our attorneys today so that we can discuss how to preserve your rights.

Get the Facts about DUI Laws in Virginia

Drunk driving offenses are aggressively prosecuted in the commonwealth of Virginia. Even a first-time offense can result in harsh financial penalties, loss of driving privileges, and even jail time, as well as several other negative consequences. If you have made a bad decision which resulted in a DUI arrest, don’t compound your error by neglecting to secure knowledgeable and skilled legal representation. Those who speak to an experienced Virginia DUI attorney as soon as possible have a much higher likelihood of a successful outcome in their case.

Blood Alcohol Concentration Limits

Virginia refers to drunk driving as DUI or driving under the influence, and measures DUI by blood alcohol concentration (BAC.)  In the commonwealth of Virginia, the blood alcohol content limits for a person twenty-one years or older is .08%.  If you are younger than 21, the legal limit is .02%. For commercial drivers the BAC limit is .04%.  In addition to DUI charges, you can also be charged with other alcohol related crimes including:

  • Misrepresenting your age (using a fake ID)
  • Possessing alcohol on school property
  • Buying alcohol for someone under the age of 21

DUI Penalties

If you are younger than 21 years old and purchase, possess, or consume alcohol (above the legal limit of a 0.02% BAC), you face the following consequences:

  • License suspension for up to 1 year from your conviction date.
  • Minimum $500 fine, or minimum 50 hours of community service.
  • Possible Alcohol Safety Action Program.
  • Possible restricted driver’s license

Virginia DUI penalties for drivers 21 years or older vary depending on whether this is a first offense or if you’ve had previous DUI convictions. If you’ve been convicted of a DUI offense in the past, the court will consider the number of convictions, the time period in which they occurred, and the BAC at the time of arrest. A first DUI offense is considered a Class 1 misdemeanor and punishment will include the following:

  • Administrative license suspension for 7 days
  • $250 – $2500 fine
  • Up to 12 months in jail
  • License revocation for 1 year
  • Court-ordered restitution (if applicable)
  • Possible Alcohol Safety Action Program
  • Installation of an ignition interlock device
  • Possible restricted driver’s license

Subsequent DUI convictions will include all first offense penalties outlined above, but may also include additional mandatory jail time, significantly higher fines, and longer license suspensions or revocation, and may also include felony charges with seizure and forfeiture of your vehicle.  An extremely high BAC of .15% or above, or driving under the influence with a minor in the car will automatically incur additional jail time.

Should You Take a Breathalyzer Test?

Many people believe that by taking a Breathalyzer test you have willingly provided the state with evidence to use against you at trial. While this is essentially true, Virginia operates under the implied consent law. This means that if you refuse to take a chemical test, blood or breathalyzer, after you have been arrested, you will be charged with Refusal in Virginia and you could be subject to an automatic license suspension.

The Implied Consent law in Virginia states that any Virginia driver, regardless of which state he or she is licensed in, impliedly consents to a Breathalyzer or blood test just by driving on a Virginia highway.  The Implied Consent law in Virginia applies after a driver has been arrested and the arrest must occur within 3 hours of the alleged offense.

Call & Speak to an Experienced Virginia DUI Defense Attorney

Being charged with DUI is a serious offense that carries harsh penalties that can affect your freedom and your bank account. Additionally, a DUI conviction may impact your ability to find a job or maintain employment, especially if a clean driving record or the absence of a criminal record is a job requirement. You can expect your car insurance rate to increase, or you may even be dropped by your insurer or have difficulty obtaining auto insurance coverage.

If you’re looking for a law firm that will fight for your rights throughout the DUI criminal process, contact Melone Hatley Our attorneys have successfully represented individuals throughout Virginia who have been arrested and charged with a DUI. Contact us today at 703.995.9900 to discuss your case.

Open Container Laws in Virginia

Many Virginians are surprised to learn that the Commonwealth does not currently prohibit passengers in a motor vehicle from having open alcohol containers. Several attempts from the Virginia General Assembly to codify a provision against open containers have failed. Possession of an open container by a driver, however, is prohibited.

The statute that governs drinking alcohol in a motor vehicle is Va. Code § 18.2-323.1. “Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.

  1. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.
  1. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.
  1. A violation of this section is punishable as a Class 4 misdemeanor.”

This statute only applies to the driver of the vehicle, not the passengers. However, if an officer notices an open container during a routine traffic stop, it creates a rebuttable presumption which allows the officer to pursue investigating the driver for potentially driving under the influence. The container is presumed to be in the possession of the driver until demonstrated otherwise.

Under state law, passengers in cars could also potentially be written a citation under Va. Code § 4.1-308. “Drinking alcoholic beverages, or offering to another, in public place; penalty; exceptions.

  1. If any person takes a drink of alcoholic beverages or offers a drink thereof to another, whether accepted or not, at or in any public place, he shall be guilty of a Class 4 misdemeanor.”

“Public place” is defined in Va. Code § 4.1-100 as, “any place, building, or conveyance to which the public has, or is permitted to have, access, including restaurants, soda fountains, hotel dining areas, lobbies and corridors of hotels, and any park, place of public resort or amusement, highway, street, lane, or sidewalk adjoining any highway, street, or lane.” If your passengers drink while the vehicle is on a highway or street, they will be in violation of this provision.

While there is no state-wide provision prohibiting all open containers in vehicles, several towns have adopted ordinances that are more restrictive than the state law. You should research your jurisdiction before assuming any open containers are permitted in your vehicle.

CONCLUSION

Under Virginia state law, it is legal for automobile passengers to have open containers of alcohol. However, the possession of an open container creates a rebuttable presumption that the driver has been drinking, making it more likely that the driver will be cited with having an open container, or driving while intoxicated. Individual cities and counties also have adopted ordinances prohibiting open containers in vehicles altogether, so be sure to check your local jurisdiction, as ignorance of the law will not be considered a valid defense.

As a driver, you want to ensure you are not driving with open containers to prevent the cost and hassle of a potential citation. Bottles that are partially consumed and then closed are still considered “open” because the bottle is no longer sealed. If you decide to carry open bottles of alcohol, you should store them in the trunk.

Refusing a Blood Alcohol Test in Virginia

If you are arrested for a DUI and you refuse to take the blood or breath test at the police station, you might face serious consequences for that refusal. The law of implied consent in Virginia requires drivers to submit to blood or breath testing to determine their Blood Alcohol Content (“BAC”) when an officer

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Reckless Driving in Virginia

 

RecklessVirginia defines reckless driving as driving “recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person.” Va. Code 46.2-852. It is classified as a Class 1 Misdemeanor. A person convicted of a Class 1 misdemeanor may be sent to jail for not more than twelve months and/or fined not more than $2,500.

Along with the fines and penalties imposed by the court, drivers facing Reckless Driving charges will also lose 6 Safe Driver Points, and suffer higher insurance costs.

If you are facing Reckless Driving charges, you should contact an attorney right away.

Credit Card Offenses in Virginia

Credit Card LadyThere are three categories of credit card offenses in Virginia: credit card theft, credit card forgery, and credit card fraud.

Virginia classifies credit card offenses as a type of identity theft and treats these offenses as a serious crime. Each charge carries fines, penalties, and imprisonment.

Credit Card Theft

In order to win a conviction for credit card theft, the Commonwealth must be able to establish:
1) that the defendant took the credit card (or credit card number) from another person,
2) the taking was without the consent of the credit card holder,
3) the taking was with the intent to either use or sell the information.Mere possession of a stolen credit card is not a crime. The Commonwealth must also prove the credit card (or number) was taken wrongfully or was received with the knowledge that it had been taken wrongfully. Possession of several stolen credit cards can serve as prima facie evidence that the crime has occurred.A person found guilty of credit card theft can face up to 20 years in prison and $2,500 in fines. In addition, they generally must pay restitution to the victim. (Va. Code 18.2-192)Credit Card Forgery

In order to win a conviction for credit card forgery, the Commonwealth must establish:

1) that the defendant bought something of value from a merchant using the credit card,
2) that the defendant was not the cardholder or a person authorized by the cardholder to use the credit card,
3) that the defendant intended to defraud the issuer.Again, the Commonwealth cannot merely show that the defendant was not the cardholder and used the card. They must show the additional element of intent to defraud the issuer. This offense carries 1-10 years in prison as well as up to $2,500 in fines. Again, the convicted person generally will have to pay restitution to the victim. (Va. Code 18.2-193)

 

Credit Card Fraud

To win a conviction for credit card fraud, the Commonwealth must establish:
1) that the defendant took the credit card (or number) from another person,
2) the taking was with intent to use, sell, or transfer the number to someone other than the cardholder or issuer,
3) that the defendant used the credit card (or number) to buy something of value,
4) that the defendant had the intent to defraud.Other variations of this offense include using an expired or revoked card (or card number), false representation, fraudulent application for a credit card, possession of credit card forgery devices, and unlawful use of credit card scanners or re-encoders.If the value of everything obtained wrongfully by the defendant exceeds $200 within a 6 month period, the offense is a class 6 felony and carries 1-3 years in prison. Otherwise, the offense is treated as a class 1 misdemeanor, and carries up to 12 months in jail and up to $2,500 in fines. (Va. Code 18.2-195)If you are facing criminal charges for any credit card offense, you should talk to an attorney right away to discuss your options.

Photo by David Castillo Dominici. Published on 07 October 2011

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