The Answers You Need to Many Common Legal Questions

Often, our clients have little experience with the law, and they share many questions and concerns when faced with a legal matter. The attorneys at Greenspun Shapiro PC understand you need answers, and we offer many of them here. Hear our thoughts on issues relating to criminal charges, traffic charges, real estate transactions, civil litigation, personal injury cases, business disputes, administrative hearings, and more.

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  • Can I Be Charged for Drug Possession or Distribution if The Drugs Are Not on Me or in my Vehicle?

    Man nervous about being charged for drug posessionIf you have illegal drugs in your pocket, in your hand, or in a bag or other container you are carrying, you are considered to be in actual possession of the drugs.  However, the law also recognizes another principle called “constructive possession,” which allows suspects to be convicted of drug crimes even if they are not in actual possession of the drugs.  Thus, even if the suspect is across the street from an illicit substance, he may still be charged if the government can prove the drugs were constructively possessed.  
    There are two legal elements for constructive possession:
    • First, did the suspect have knowledge of the substance’s nature and character?  In other words, did the person know, or have reason to know, they were in possession of an illegal substance?  They do not need to know the exact type of substance, however. It would not matter, for example, that a suspect thought he possessed heroin but actually possessed cocaine. 
    • The second element is whether the suspect knowingly exercised dominion and control over the drug.  For this, the court asks whether the suspect could access or do something with the drugs he is accused of constructively possessing.  If he had no authority to use the drugs, move them, or do anything else with them, then the person does not have dominion and control over the drug. 
    In deciding whether constructive possession has been proved, all of the circumstances present must be considered.  If the government fails to prove either aspect necessary for constructive possession (i.e., dominion and control or knowledge of the illegal character of the drug), then the individual should be found not guilty.  The good news is that Virginia recognizes that a suspect’s mere presence in an area where drugs are is not enough on its own to prove the suspect is constructively possessing drugs.  This is pretty much where the good news ends, because the suspect’s presence in the area is still a factor in the overall analysis of whether the suspect constructively possessed the drugs.  
    In addition to the suspect’s presence, the court will consider things like whether the drugs were in plain view of the suspect or whether the suspect would have been able to detect the drugs because of an overwhelming smell or other obvious characteristic.  Courts will also look at the behavior and statements of the individuals.  Furtive movements, like the appearance of something being hidden in the vehicle or thrown out of the vehicle, are often strong circumstantial indicators of knowledge and dominion and control.  A suspect’s admission that they knew the drugs were present is extremely informative and will often seal the deal on the issue of constructive possession.  
    There are numerous factors other than the ones discussed here that play into the determination of whether a suspect is in constructive possession of a drug.  If you have been charged with a drug possession or distribution charge, but the drugs were not on you, then there may be a number of legal issues with the government’s case.  Our drug offense attorneys are experienced in evaluating and defending such issues and can help you fight your charge.  Give us a call today to see how we can help.

  • Drug Residue – Can I Still Be Charged?

    Lab test for drug residue on paraphernaliaDrug users often carry paraphernalia used to consume drugs.  Marijuana users may have wraps, bowls, bongs, or a host of other devices.  A cocaine user may have a bowl, bill, or straw.  Heroin users may have spoons and needles.  Most drug users also are not the most scrupulous when it comes to cleaning, disinfecting, and making sure there is no drug residue left on their paraphernalia.  So what happens if the police seize your paraphernalia, test the residue, and charge you with a misdemeanor or felony drug possession charge?

    You may be thinking, “But it was only residue!  I wouldn’t even be able to get high off that!”  Surely if you cannot use the drug for the intended purpose – getting high – you cannot be charged.  Unfortunately, that is not the case.  

    In Virginia and in federal court, that argument is not a good one.  Courts have handily rejected those types of arguments.  If a lab test is performed on the residue, and the residue is returned as a prohibited substance, then the charge would be proper.  However, just because there is residue, does not mean there is a prohibited drug present.

    The Virginia legislature has outlawed the possession of specific drugs.  Those drugs are defined by their chemical composition.  This means that if the residue that remains in the paraphernalia or elsewhere does not match, it may be that the government will not be able to move forward with the case and will have to dismiss the drug charge.  

    If you have been charged with marijuana possession or another drug charge, contact the attorneys at Greenspun Shapiro PC today to see what can be done.  Our attorneys are familiar with a wide range of drug charges and the legal issues that arise out of such cases.  Let us help you fight your drug charge.

  • How long do traffic convictions stay on my criminal record?

    Traffic Violations May Result in a Criminal RecordMany people do not realize that traffic violations—even minor infractions—can have long-term consequences beyond just paying a ticket. In Virginia, traffic violations can affect your driving record and your criminal record if the violation is a misdemeanor. Because of this, you do not want to make the mistake of not taking a traffic violation seriously. With the help of an experienced traffic law attorney, you may be able to get the charges dismissed or reduced to an offense with lesser penalties.

    Common Traffic Violations That Result in Demerit Points on a Driving Record

    There are many minor infractions in Virginia that may not result in a permanent criminal record but will result in you being assessed a fine and demerit points on your driving record. This can also result in dramatic increases in your automobile insurance costs. The demerit points will generally come off your record in two years—but the infraction can remain on your driving record for 3 to 11 years depending on the severity of the infraction. Here are some common traffic violations that you may be charged with:

    • Driving too slowly. Virginia Code §46.2-877 makes it illegal to impede traffic by driving too slowly and comes with a fine and three demerit points.
    • Improper turn. Virginia Code §46.2-846 provides that it is a violation to make a right turn from other than the right-hand or turn lane or to make a left turn from other than the lane nearest the center lane. The penalty is a fine and three demerit points.
    • Failing to yieldVirginia Code §46.2-820 through 829 makes it a violation to fail to yield the right of way in a variety of driving situations, such as failing to yield the right of way to oncoming traffic when making a left turn. The penalty is a fine and four demerit points.
    • Failing to obey a traffic signal. Virginia Code §46.2-833 requires drivers to obey traffic signals. Failure to do so may result in a fine and four demerit points.
    • Failing to obey a highway sign. Virginia Code §46.2-830 requires drivers to obey high signs. Failure to do so may result in a fine and three demerit points.


    • Speeding. Virginia Code §46.2-870 through Virginia Code §46.2-875 sets the speed limits on highways and other Virginia roads. Depending on how fast a person is speeding, he may be assessed up to six demerit points and have the conviction remain on his driving record for 11 years.

    More Serious Traffic Violations That May Result in a Permanent Criminal Record

    Some common traffic violations are misdemeanor offenses in Virginia that carry more severe penalties and the risk of a permanent criminal record. A criminal record may affect many aspects of your life, such as your ability to obtain a job, to keep a professional license, to obtain or maintain a security clearance, and to obtain a loan. These violations are serious enough that you must attend court and cannot simply prepay a ticket to avoid appearing in court. Here are some common traffic violations that are misdemeanors:

    • Driving without a license or with a suspended license. Virginia Code §46.2-300 prohibits driving without a license, and Virginia Code §46.2-301 makes it illegal to drive on a suspended or revoked license. This may result in a Class 1 misdemeanor—the most serious misdemeanor—with a penalty of up to one year in jail, $2,500 in fines, and suspension of a driver’s license. Subsequent violations may result in felony charges.
    • Reckless driving. Virginia Code §46.2-852 provides that regardless of the posted speed limit that it is a violation of the law to drive recklessly or in a manner that endangers a person. Virginia code §46.2-862 provides that a person may be charged with reckless driving for driving 20 miles per hour or more over the posted speed limit or over 80 miles per hour. This is also a Class 1 misdemeanor that may result in jail time, significant fines, and/or suspension of your driving privileges.
    • Hit and run. It is a violation of Virginia Code §46.2-894 for a driver to leave the scene of an accident without stopping to provide contact information and to give help to any injured victims of the wreck. Passengers can also face criminal charges for not reporting the accident when the driver fails to do so, and both the driver and passenger may be charged with other offenses for leaving the scene of an unattended vehicle accident. This can result in a Class 5 or 6 felony or a misdemeanor charge depending on the severity of the accident. Penalties can include a prison or jail sentence, fines, or both.
    • Driving under the influence. Virginia Code §46.2-266 prohibits driving under the influence (DUI) of alcohol, driving with a blood-alcohol level of .08 percent or higher, or driving under the influence of marijuana or a drug or other intoxicant. A first offense is a Class 1 misdemeanor, but under Virginia Code §46.2-270, a third or subsequent conviction can result in a Class 6 felony conviction with a maximum prison sentence of five years and a $2,500 fine. Virginia law also imposes mandatory minimum sentences for certain subsequent convictions, as well as in cases with an elevated blood alcohol level.

    Let Us Help You Fight Your Traffic Charges

    If you just pay your ticket, you need to realize that this is an admission of guilt and has long-term consequences on your driving and criminal record. Even if you believe you are guilty, you may have defenses that may result in the dismissal of the charges or the reduction to a less serious offense. Lack of probable cause to stop you, improper administering of DUI-related tests, and violations of your constitutional rights are a few of the defenses you may have. To learn how we can help you achieve the best possible outcome, call our office today to schedule a free consultation.


  • How long will it take to settle my personal injury case?

    Personal Injury Claims and When They SettleIf you are like most personal injury accident victims, one of the top questions that you have is about the length of time it will take to resolve your personal injury claim. There is a very practical reason for needing to know this. You want to get on with your life, and you need the settlement proceeds to pay for the expensive medical treatments and replace your wages while you were off work recovering from your injuries. Unfortunately, even an experienced personal injury attorney cannot tell you exactly how long it will take to settle your claim—but he can give you an idea by considering how certain factors impact your case.

    Factors That Will Affect How Long it Takes to Settle a Personal Injury Claim

    While it is impossible to predict a firm date for the resolution of your case, you can get a good sense of the time that will be needed to resolve your case. You do this by looking at the factors that influence the time period it takes to resolve a personal injury claim and how they play out in your case. Here are some factors that affect how quickly your claim may be settled:

    • Maximum medical recovery. You are entitled to compensation for your injuries. Therefore, the length of time it takes to recover from your injuries will affect how long it takes to resolve your claim. If you want to be fully compensated for your injuries, you have to know how much your medical bills will be and how long you will be unable to work. You will know this information until you reach your maximum medical recovery or your doctor gives you a final prognosis. Until you know this, you cannot realistically settle your claim.
    • Documentation of your claim. Your attorney will need to collect all the documents related to your medical care, your medical bills, your lost wages, and any other out-of-pocket expenses to determine the value of your claim. He may also include some of this information in a demand package to the insurance company that outlines your claim and what you would accept in settlement. It can take time to obtain these documents from medical providers and your employer, and some documents cannot be obtained until you reach your maximum medical recovery.
    • Disputes in your case. When there are disputes with the insurance company about liability or the seriousness of your injuries, it can delay the settlement of your claim. In some cases, an attorney can resolve these arguments relatively quickly by providing the adjuster with additional documentation to support your position. In other cases, the insurance company may not back down—your attorney may need to hire expert witnesses and file a lawsuit to get the insurance company to offer a reasonable settlement amount.
    • Negotiation process. Even in a claim where the negligent party’s liability for a victim’s injuries are clear-cut, the negotiation process can take time, and the insurance company may raise some initial arguments as to why it should not pay the full amount requested. Once your attorney sends the insurance company a demand package, you must wait for the insurance company to respond either in a letter or telephone call. There are usually a series of communications between your attorney and the insurance adjuster during negotiations.
    • Amount of your claim. If you suffered catastrophic injuries or there is a wrongful death claim, the value of your claim may be larger. When claims are worth more, insurance companies will investigate the claim more thoroughly and fight harder to deny or reduce a claim. This may result in your claim taking longer to settle, and it may require your attorney to litigate your case before it can be resolved.
    • Insurance company. Some insurance companies have a reputation for being harder to work with when settling personal injury claims—at least for what the claim is worth. This may be a major factor that causes your claim to take longer to settle.

    It is important to realize that you want to wait, if necessary, to settle your personal injury claim so that you receive the compensation that you deserve. Once you settle your claim, the settlement is final—you cannot go back to the insurance company later and demand more money.

    Were you injured in a personal injury accident caused by another person’s negligence? Call our Fairfax law office today to schedule a free consultation to learn how our experienced personal injury attorneys can help you file your claim and get the compensation that you deserve.


  • What are the pros and cons of agreeing to entering into a plea bargain in my criminal case?

    Pros and Cons of a Plea AgreementThe reality is that most criminal cases are resolved through a plea agreement between the prosecutor and the defendant. If you face criminal charges, you will most likely have to decide at some point in your case whether or not to accept a plea agreement. This is a very important decision in your criminal case since a criminal conviction can have long-term consequences. An experienced criminal defense attorney can help you make this important decision.

    What Is a Plea Agreement?

    A plea agreement is an agreement between the prosecutor and the defendant to resolve the criminal case where the defendant agrees to plead guilty or no contest to a certain crime and the prosecutor agrees to provide the defendant a benefit for doing so. Plea agreements come in many different forms. In some cases, no actual "plea agreement" is reached with the prosecutor, but the prosecutor agrees to recommend a certain sentence to the judge in exchange for the defendant's agreement to plead guilty either to the original charged offense or to a lesser offense. In other cases, the prosecutor may agree to reduce the charged offense to a lesser offense in exchange for the defendant's agreement to plead guilty. There may or many not also be an "agreement" on a specific sentence, or an agreement by the prosecutor to recommend a specific sentence to the court. 

    In cases where there is no actual "agreement" between the parties regarding sentencing but only a recommendation by the prosecutor of a particular sentence, the court may or may not follow the prosecutor's recommendation. It is important to keep in mind that the judge's decision not to follow a "recommendation" on sentencing following the entry and acceptance of a guilty plea is generally not a basis to withdraw the guilty plea.

    On the other hand, when the prosecutor and defendant enter into a plea agreement, the judge must first approve it. There would be a court hearing where the parties present the terms of the plea agreement to the judge. The judge would then question the defendant to be certain that he fully understood the terms of the agreement and voluntarily agreed to it. Then the judge would decide whether or not to approve the plea agreement.

    What Are the Pros and Cons of Entering Into a Plea Agreement?

    As with any agreement between parties where there is a dispute, a plea bargain involves a compromise. For the prosecutor and the judge, there are clear benefits of resolving a case through a plea bargain, including judicial economy and efficient resolution of their caseloads. In addition, prosecutors may gain the cooperation of the defendant as part of a plea agreement, which may assist their investigation or prosecution of other individuals. Judges have a similar incentive for wanting a criminal case to be settled—reduction of an already congested docket of court cases.

    For you as the defendant, the decision whether to accept a plea agreement is more complicated and has more long-term ramifications. Here are some of the benefits of entering into a plea agreement:

    • Remove uncertainty. One of the benefits of entering into a plea agreement is removing the uncertainty of the outcome of the case, which may result in you being found guilty of a more serious offense at trial. 
    • Lesser sentence and charges. A plea agreement may either result in a reduction in the charges against you, or a less severe sentence. This could affect more than just the penalties that could be imposed. For example, if you hold a professional license, you may risk its revocation if you are convicted of a felony. However, if you plead guilty to a misdemeanor offense, you may reduce the risk the losing your license and your job.
    • Cost and time. Taking your case to trial can be time consuming, expensive, and very stressful. You must pay your attorney to thoroughly investigate the crime, prepare for trial, and conduct your trial. In addition, you may need to pay expert witness fees for the experts you might need to help prove your innocence. You avoid these costs when you enter into a plea agreement. More importantly, you avoid the stress and anxiety of trial.

    There are also disadvantages to entering into a plea agreement. You should consider the disadvantages as well as the benefits when making your decision. Some of these include:

    • Innocence. Unfortunately, being completely innocent of committing the offense you are being charged with does not guarantee a not guilty verdict at trial. When you are innocent and feel you must plead guilty to a lesser offense, it can feel unjust and immoral that you are being forced to do this for practical reasons.
    • Coercion. You could face strong pressure from the prosecutor, the judge, and possibly your attorney to accept a plea agreement. You may feel unreasonable pressure to enter into the plea agreement that you are not certain is in your best interests. If this is how you feel, you should take a step back, reevaluate your options, and consult with an experienced attorney who will properly advise you on your options and the best path forward for you.
    • Lack of investigation. Because police officers, prosecutors, and defense attorneys know most cases are settled through a plea agreement, there may not be sufficient investigation of the crime by the police or even your own attorney. This could result in an important defense that may result in dismissal of the charges against you being overlooked. You need to retain an experienced attorney who understands the importance of conducting a thorough investigation and fighting the charges when doing so is in your best interest.
    • Loss of constitutional rights. When you enter into a plea agreement, you give up important constitutional rights, such as the right to have a jury decide your case, the right to plead not guilty and persist in that plea, the right to confront and cross-examine witnesses against you, and the right to testify in your own defense or to remain silent.
    • Sentence. By entering into a plea agreement, you would be pleading guilty or no contest to some offense that will result in the imposition of a sentence of some sort, even if it is probation or the payment of fines.
    • Criminal record. If you plead guilty to any charge, even a misdemeanor, you will have a permanent criminal record that may affect your ability to obtain employment, a loan, security clearance, and more.

    If you have been charged with a crime, let our experienced criminal defense attorneys investigate the charges against you, build a strong defense, and help you decide whether a plea agreement is in your best interests. To schedule your free case evaluation, call our office or fill out our convenient online form today.


  • Will I go to jail if I am convicted of a crime in Virginia?

    Alternative Sentences to Jail Time in VirginiaIf you are charged with committing a crime, your main worry is most likely the sentence that you could face and fears about being sentenced to prison or jail. However, the Commonwealth of Virginia has a number of sentencing alternatives to jail in many localities. These may allow you to continue in your employment or offer you drug or alcohol treatment options where appropriate.

    What Are Alternative Sentences to Jail Time in Virginia?

    Your eligibility for an alternative sentence will depend on many factors, including the crime that you were convicted of, your criminal record, and the specific circumstances of your case. An experienced criminal defense attorney will understand the available options and your eligibility for them. Some alternative sentences could include the following:

    • Suspended jail time. A suspension of jail time means that you do not have to serve your prison or jail sentence as long as you comply with the conditions set by the judge. You are placed on probation instead. You are placed on probation instead, which may involve active supervision or simply unsupervised probation. Conditions that are commonly set include not committing any other crimes, paying fines and court costs, completing a substance abuse treatment program, paying restitution to the victim of the crime, and completing community service. If you violate the terms of your probation, you will be required to attend a hearing where the judge could order you to serve some or all of the suspended sentence.
    • Jail served on weekends. Some jails permit people to serve their sentences on weekends so that they can remain employed. Each jurisdiction has its own requirements and application processes. Space can be limited. The Fairfax County weekend confinement program requires you to report by 6:00 p.m. on Friday and be released at 8:00 a.m. on Monday. You could be subject to random blood, breath, or urine tests. You must pay a fee of $2.00 per day for the program. If you fail to arrive by 6:00 pm on Friday, you are violating the terms of your sentence, and it could be reported to the judge. Not all defendants are eligible to serve their sentences on the weekend, and your attorney can advise you on whether you may be eligible to do so.
    • Work release. You may be eligible for a work release program by which you are released from jail to go to work each day. Like weekend jail programs, each county has its own program and qualification requirements. In Fairfax County, for example, the requirements are having 30 to 180 days remaining on your sentence, having no pending warrants or charges, no violent crimes, not being convicted of sex crimes or crimes involving children, never escaping from custody, and not violating a work program rule. You must live in Virginia, Maryland, or Washington, DC. You may also be required to complete a substance abuse treatment program first.
    • House arrest. This is also known as an electronic incarceration program and allows you to remain at home and continue your employment instead of serving your sentence in jail. In Fairfax County, the rules are similar to those of the work release program except for a few additional requirements. You must wear an ankle or other electronic device, pay a portion of the fee for the program, be subject to random home inspections, and live in Virginia. People who have committed certain felonies, such as murder, voluntary manslaughter, and felony sex crimes, are not eligible for the program. You should consult with your attorney regarding whether you may be eligible for home confinement.
    • Community service. In some cases, a person may be sentenced to perform community service instead of jail time. The judge usually sets a specific number of community service hours that the person must perform. Additional penalties, such as costs and fines, may be assessed as well.
    • Community Labor Force Offender Program (CLFO). People convicted of misdemeanors or traffic violations may be placed in this short-term program in Fairfax County. To avoid jail time, low-risk offenders perform manual labor, such as removing graffiti, cleaning streams and rivers, and participating in other revitalization projects.
    • Fines Option Program (FOP). This is another Fairfax County program that allows people to report to a pre-release center on weekend mornings to perform community service that is applied to court costs and fines that they owe. Work that may be assigned includes painting buildings, cleaning up litter, and moving furniture.

    If you are charged with a crime, you need the help of an experienced criminal defense attorney who understands the programs that you could be eligible for to avoid jail time if you are convicted or enter into a plea agreement. Call our office today to schedule a free consultation to discuss your situation and learn how our trusted attorneys can help you achieve the best possible outcome.


  • How will the jury be selected in a criminal case in Virginia?

    How Will the Jury Be Decided in My Criminal Case?Cases that cannot be resolved through a plea agreement are set for trial. Trials will be decided either by a judge in a bench trial, or by a jury. If your criminal case will be decided at a jury trial, it is important to understand how a criminal jury trial works so you know what to expect. Here, we discuss how jury selection works in Virginia.

    Who Can Be on the Jury?

    In order for a person to be eligible to be a juror in Virginia, he or she must meet certain requirements. Jurors must be at least 18 years old. In addition, a juror cannot be a convicted felon; however, if the juror was convicted of a felony, he must have had his voting rights restored and lived in the jurisdiction for at least two years in order to be eligible to serve as a juror.

    The jury commissioner for each jurisdiction will create a master jury list of eligible residents who reside in the jurisdiction of the court. This list, often generated from voter registration lists, is sent to the court clerk. Potential jurors are randomly selected from this list.

    How Many Jurors Are Selected?

    On the day of your trial, a randomly selected panel of potential jurors will be present. In Virginia, the number of jurors picked for trial will depend on whether your case is a felony or misdemeanor. Generally, the following rules apply:

    • In a felony case, 20 prospective jurors are called from those in the courtroom, and 12 members will be selected.
    • In a misdemeanor case, 13 prospective jurors are called, and the final jury will include 7 jurors.
    • One or more alternate jurors may be selected to be on the jury in case a juror becomes too ill to serve or is removed from the jury during the trial for other reasons.

    How Does Jury Selection Work?

    The process of selecting a jury is called voir dire. During this process the judge, prosecuting attorney, and criminal defense attorney ask the potential jurors, known as the jury panel, questions in order to pick appropriate jurors for the case. Often the judge will begin the process by asking basic questions to determine each individual's competence to serve on the jury and any obvious biases. Some of these questions will focus on the following:

    • Whether sitting on the jury would cause the person an undue hardship
    • Whether the person is related to the parties by blood or marriage
    • Whether the person is being represented by either attorney or their law firms
    • Whether the person has any preconceived opinions about the case
    • Whether the person has a financial stake in the case
    • Whether there is any other reason, such as a medical condition, that would prevent the person from sitting on the jury and making a fair decision

    The prosecuting attorney and criminal defense attorney will then have an opportunity to question potential jurors. Often the court will send a questionnaire to the jury pool to complete before the trial date in order to obtain basic information about the jury pool. The attorneys may have reviewed these questionnaires before the trial date. In some cases, attorneys will hire experts to review these questionnaires and assist in jury selection.

    The attorneys will question potential jurors more thoroughly than the judge. The prosecutor and the criminal defense attorney will ask questions to determine biases, backgrounds, and pre-existing knowledge of the case. They are looking for characteristics and experiences that could cause a prospective juror to side more favorably with either side. 

    How Challenging a Juror Works

    The attorneys have the right to remove a certain number of prospective jurors from deciding a case. There are two types of challenges:

    • Challenges for cause. An attorney can challenge a person’s right to sit on a jury for cause if he or she is not qualified to sit on a jury either because that person does not meet the basic qualifications, is not competent, or is biased and cannot be impartial. Bias can be actual bias if the juror admits in some way that he or she cannot be fair. Implied bias is where the juror has characteristics or prior experiences that make it unlikely that he or she can render an impartial decision. Generally, there is not a limit on for cause challenges.
    • Peremptory challenges. A peremptory challenge is used when there is no reason for cause to exclude a juror, but an attorney does not want the person to be seated as a juror. The attorney does not have to give any reason to excuse the juror when using this type of challenge. However, there is a limit to the number of peremptory challenges an attorney can make. Generally, an attorney is only allowed three peremptory challenges, but the precise number could vary depending on whether the case is a misdemeanor, felony, or death penalty case.

    When retaining an attorney to represent you in your criminal case, it is critical that you hire an experienced criminal defense attorney who has conducted criminal trials and has a track record of success. If you are facing criminal charges, review our case results to see how we have helped other clients and then call our office to schedule your free consultation.


  • How is my jail time determined in Virginia?

    Figuring Out Your Jail or Prison Time in VirginiaIf you have been convicted of a crime and you are sentenced to prison or jail, one of your major concerns after worry about surviving the ordeal is how much of your sentence you will need to serve. In Virginia, calculating the time that you must serve can be complicated. There are many factors that may affect your release date, and different counties calculate the time served differently. In addition, you may be entitled to time off for good behavior. Here, we discuss some of the basics of how your jail time could be calculated.

    Is There Mandatory Prison Time in Virginia?

    Some crimes in Virginia carry mandatory minimum prison sentences. This is the jail time that a judge must sentence you to, and he cannot suspend any portion of it. If you are sentenced to a mandatory prison sentence, you are required to serve it in active jail or prison. You are not entitled to have the minimum prison time reduced for good behavior. Common crimes that come with mandatory minimum prison sentences include:

    • Second, third, and fourth DUI
    • DUI conviction where the BAC was .15 percent or higher
    • Third offense of driving on a suspended license
    • Assaulting a police officer

    How Is Jail Time Calculated for Misdemeanors?

    The sheriff’s department is often responsible for calculating jail time for people convicted of misdemeanors. However, if you are sentenced for more than one year in jail, the Virginia Department of Corrections could calculate your time. Under Virginia law, sheriff’s departments must require inmates to serve 50 percent of their sentences unless there is a mandatory minimum sentence. In most Northern Virginia jails, people will only serve 50 percent of their sentence conditional on their good behavior.

    How Is Jail Time Calculated for Felonies?

    If your felony sentence is for less than a year, your jail or prison time would be calculated by the local sheriff’s department. For a sentence of more than a year, the Virginia Department of Corrections would calculate your time and release date. Under the law, you are required to serve 85 percent of a non-mandatory felony sentence. How much of the 15 percent credit you receive would depend on the policies of the individual jail. Many in Virginia will give an inmate the full 15 percent credit while a few may not give as much credit.

    Differences in How Jail Time Is Calculated

    Different jails calculate a day or month of jail time differently, making it more difficult for you to be certain their calculations are accurate. For example, in Fairfax County, your time would be calculated using a calendar day. If you were serving jail time in Prince William, your time would be calculated based on a 24-hour day. Here is how these systems work. If you were incarcerated at 4:00 pm, at 12:00 midnight, you would have served the first day of your sentence in Fairfax County. However, in Prince William, you would not have served a full day until 4:00 pm the following day.

    Do I Get Credit for Time Served?

    In Virginia, you are entitled to credit for any time that you served for the crime you were convicted of while in the jurisdiction. If you were arrested in another jurisdiction, you would not get credit for the time period you were waiting for extradition. In many cases, the credit is calculated automatically. If not, a judge may give the credit for time served if you file a motion requesting that he do so.

    What Should You Do If You Believe There Is an Error in Your Jail Time Calculations?

    It is important that you understand how your time served in jail or prison is calculated to ensure that you do not spend more time incarcerated than required under your sentence. You also want to get the credit that you are entitled to for good behavior. If you have questions about your jail time or believe an error was made in calculating your time, you need the help of an experienced criminal defense attorney. Call our Fairfax office today to schedule a free consultation to learn how our criminal defense team can assist you.


  • What are common grounds to suppress evidence in criminal cases?

    If you have been charged with committing a crime, you must raise all possible defenses you can and take any other helpful steps to fight the charges against you. You have too much at stake not to. One way to do this is to file a motion to suppress evidence. This can be an extremely useful strategy in your criminal defense. However, you cannot expect to successfully file these motions on your own. You will need the help of an experienced criminal defense attorney.

    What Is a Motion to Suppress Evidence?

    A motion to suppress evidence asks the judge not to allow certain evidence to be used against you by the prosecutor in your criminal case. In criminal cases, the police and prosecutors are not allowed to use evidence against you that was illegally obtained. This is known as the Exclusionary Rule and ensuresA Motion to Suppress Evidence Could Help Your Criminal Case that your Fourth Amendment rights against unlawful searches and seizures and other constitutional rights are not violated.

    Another helpful doctrine that also can result in the suppression of evidence is the fruit of the poisonous tree doctrine. Under this legal theory, evidence that would be otherwise admissible would be excluded if it was obtained through the violation of your constitutional rights. For example, a suspect may confess to a crime and tell the police where the murder weapon is. However, if the police did not inform him of his Miranda rights when required to or continued to question him after he asked for an attorney, the confession and the murder weapon may be suppressed and not allowed to be used against the suspect.

    What Are Common Grounds to File a Motion to Suppress Evidence?

    Even if you know you are guilty of the charges, you can file a motion to suppress evidence if you have proper grounds to do so. If the evidence is important enough to the police’s case against you, the charges against you may be dismissed. When the evidence is suppressed, but the case against you continues, you may have significantly weakened the prosecutor’s case, which could result in a favorable outcome down the road. Common grounds to file a motion to suppress include:

    • Unlawful search and seizure. The Fourth Amendment protects you against unlawful search and seizure of your property and yourself. The police must have a valid search warrant or arrest warrant or probable cause to believe a crime was committed in order to stop you and search for evidence. If evidence was illegally obtained, it cannot be used against you.
    • Failure to give Miranda warnings. When the police take you into custody, they are required to inform you of your Miranda rights. This includes informing you of your right to remain silent, that anything you say can be used against you, and that you have a right to an attorney. If the police fail to give you this warning, any statements or confession you made or other evidence the police obtained due to this failure could be suppressed.
    • Chain of custody errors. Chain of custody refers to the proper procedures the police must use in handling pieces of evidence from the moment it is collected until it is used at trial. For example, if evidence is mislabeled or mixed with evidence in another case, it could lose its credibility and not be admissible in your criminal court hearings.

    There are other reasons that your attorney may decide to file a motion to suppress evidence. Other common grounds for these motions include:

    • Field sobriety tests were not administered according to the National Highway Traffic Safety Administration (NHTSA) standards as required under the law.
    • DUI or drug test evidence was compromised in its testing, handling, labeling, transport, or storage.
    • Breathalyzer tests were inaccurate or the testing device was not maintained properly or malfunctioned.
    • The search warrant was invalid or was not specific enough.
    • Independent expert witness testimony raises reasonable doubts about a certain piece of evidence.
    • Evidence was acquired in another unconstitutional fashion.

    An experienced criminal defense attorney will be trained to spot the constitutional grounds that can be used successfully file a motion to suppress evidence. These motions often involve complex constitutional issues, and you want an attorney who has experience filing and arguing them on your side. If you have been arrested, call our Fairfax law office today to schedule a free consultation to learn how our legal team can help build your defense and fight the charges you face.


  • What are my rights to discovery in a criminal case in Virginia?

    If you have been charged with a crime, you have the right to certain kinds of evidence and other information before your scheduled trial. These materials are known as discovery. Each state has its own rules on what discovery must be provided by the prosecution and the defense. Unfortunately, Virginia’s rules on disclosing evidence favors the prosecutor. However, even with the limitations on what you can obtain through the discovery process, receiving and reviewing any information that you can obtain from the prosecutor is essential to building a strong defense.

    What Are Your Rights to Discovery in Virginia?

    Discovery is the process by which defendants find out about the prosecutor’s case against them. This information can be crucial for a criminal defense attorney to build a strong defense to the charges and to help the person charged with the crime decide whether entering into a plea agreement is in his interests. Discovery is an ongoing obligation. If you are a defendant in a criminal proceeding, the prosecution has a duty to provide you with the following:

    • Any statement made by you
    • Your prior criminal history
    • Information on any expert witnesses the prosecution intends to use at trial
    • The results of any scientific tests performed
    • Books, papers, documents, photographs, and other tangible evidence that the prosecutor has and that is material to your case
    • Exculpatory evidence

    The prosecutor has no duty to disclose his strategies, legal theories, and notes regarding your criminal case. This is known as his work product and is not required to be provided to you. Discovery is now reciprocal, which means that you as a criminal defendant have obligations to disclose certain information to the prosecutor. In general, the information that you are required to share is similar to what the prosecutor must provide to you.

    What Is Exculpatory Evidence?

    Under the U.S. Constitution, the prosecutor is required to provide the defendant’s attorney with any exculpatory evidence in his possession or control. This is known as Brady information and is named after a famous U.S. Supreme Court case that established the requirement that the prosecution turn over exculpatory evidence. It is usually defined as evidence that tends to dispute the defendant’s guilt or would suggest a lesser punishment. In addition, the evidence does not have to strongly suggest innocence. It must be provided if it provides significant aid to the defendant’s case, including providing any doubt as to the defendant’s guilt.

    In order to ensure that they receive this required information, criminal defense attorneys often formally request this evidence in a written request or motion early on in the criminal proceeding. In addition, the attorney may interview other parties that could be aware of other exculpatory evidence.

    If there are Brady violations by the prosecutor, the court could overturn a conviction and set a new trial date. The judge is more likely to find a violation if the defense counsel made a written request for the information. This is one reason a thorough discovery is so important to a defendant’s defense.

    Special Rules Regarding Discovery in Misdemeanor Cases

    In district courts in Virginia, which is where misdemeanor criminal cases are heard, there are special rules regarding discovery. The prosecutor is only required to provide the following information:

    • Any statement that the defendant has given to the police
    • The defendant’s criminal record

    Under this rule, criminal defense attorneys must make a formal request for this information at least 10 days before the trial date. In some instances, the prosecutor may not provide it until the morning of the trial.

    In the Commonwealth of Virginia, the discovery process can be slightly different depending on the jurisdiction where a criminal case is being heard. Different prosecutors can have a different interpretation of what they are required to disclose. In addition, having an experienced criminal defense attorney who has experience working with the prosecutor can make the discovery process in your case go more smoothly.

    At Greenspun Shapiro PC, our criminal defense attorneys have over 100 years of combined experience handling criminal cases for our clients, fighting for their rights, and working with prosecutors in many jurisdictions. If you are facing criminal charges, do not delay in scheduling your free consultation. Start an online chat today to schedule your appointment.