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 my reckless driving conviction be expunged in Virginia?

    Reckless driving is a Class 1 misdemeanor in Virginia, and you will have a permanent criminal record if convicted. Unfortunately, you only have a very limited right to get a reckless driving conviction expunged from your criminal record. Here, we explain when this may be possible.

    When Can Your Reckless Driving Conviction Be Expunged?

    Criminal Record That Is Being Expunged

    When a conviction is expunged in Virginia, all records of your arrest and court case are removed from your criminal record. This can be a huge benefit to you because it cannot be accessed by employers, state agencies, educational institutions, and others. It would also allow you to treat the charge as if it never happened.

    However, it is very difficult to get a reckless driving conviction expunged in our state. Here are the limited circumstances when this may be possible:

    • Acquittal. If you were acquitted of the reckless driving charge by the judge, you may be able to get the arrest and acquittal expunged from your criminal record.
       
    • No prosecution. If the prosecutor decided not to prosecute your case, which is referred to as a nolle prosequi, you are eligible to petition for expungement of the case record. 
       
    • Otherwise dismissed. If the charge was dismissed without any finding of sufficient evidence to support a conviction and without any plea of guilty or no contest by you, then you may be eligible for expungement.
       
    • Amended charges. The Virginia Supreme Court has held that a person who is convicted of an amended charge that is not a “lesser included offense” is eligible to expunge the original charge. This means that if you were charged with reckless driving, but the prosecutor offers to amend the charge to failure to pay full time and attention, defective equipment, or a number of other charges that are not considered lesser included offenses, then the original charge of reckless driving may be expunged. However, the other elements of expungement must also be shown to the court. 

    Our Experienced Reckless Driving Attorneys Can Help

    If you are facing a reckless driving charge, or if your reckless driving charge has been dismissed or amended to another charge and you would like to expunge the original case record, our experienced attorneys can help you. We represent clients in Fairfax and throughout Northern Virginia. Call our Fairfax office or start an online chat to schedule your free consultation today.

     

  • What happens to a non-resident who gets charged with DUI in Virginia?

    Out-of-State Driver Being Charged With Virginia DUIBeing charged with DUI can be even more stressful if you are an out-of-state resident traveling in Virginia on vacation, on your way to work, or for business. Unfortunately, this is common because of the proximity of Maryland and Washington D.C. to our state and Virginia’s aggressive prosecution of DUI. If you are a resident of another state and have been charged with DUI in Fairfax or Northern Virginia, you need to retain an experienced local DUI attorney as soon as possible.

    Consequences of DUI Charges in Fairfax for Out-of-State Residents

    Under Virginia Code § 18.2-266, you may be charged with DUI if you have a blood alcohol content of 0.08 percent or higher or you are under the influence of alcohol. As a non-resident, you will still be required to attend any scheduled court hearings in Virginia. Your lawyer may be able to attend some of them on your behalf depending on the court and the type of hearing. DUI is a Class 1 misdemeanor, and you can face these penalties if convicted of a first offense:

    • You may be sentenced to up to 12 months in jail, but this may be suspended by the judge if you satisfy other conditions of your sentence. If your BAC was between 0.15 and 0.19 percent, there is a mandatory jail sentence of five days. This mandatory jail sentence would increase to 10 days if your BAC was 0.20 percent or higher.
       
    • You may be ordered to pay a fine of between $250 and $2,500.
       
    • You must complete the Virginia Alcohol Safety Action Program (VASAP) and may be sentenced to up to one-year probation.
       
    • Your driver’s license would be suspended for one year, but you may be able to obtain a restricted license allowing you to drive for certain approved purposes. In addition, you would be required to install an ignition interlock device on your vehicle in order to drive, even on a limited basis.
       
    • You would have a permanent criminal record.

    How a DUI Conviction Will Affect Your Driver’s License in Your Home State

    Almost all states are part of the Driver License Compact (DLC), which is an information sharing agreement to notify each other of traffic offenses and driver’s license suspensions or revocation. As a result, you may face the same loss of your driving privileges in your home state.

    Are you an out-of-state resident who has been charged with DUI in Virginia? Our experienced DUI attorneys have helped many non-residents facing these charges. To learn how we can assist you, call our Fairfax office to schedule a free consultation today.

     

  • Does Virginia have an open container law?

    Virginia's Open Container Laws Unlike many other states, Virginia does not have a law that expressly prohibits passengers in a vehicle from having an open container of alcohol. However, if an open container is found in your vehicle and you are driving, you may face severe consequences under Virginia’s open container law.

    Virginia’s Open Container Law

    Virginia’s open container law applies to the driver of the vehicle and not the passengers. Under Virginia Code § 18.2-323.1, it is illegal to consume alcohol while driving a motor vehicle. There is a rebuttable presumption that the driver was consuming alcohol if there is an open container in his automobile. An open container is defined as one without the original factory seal. The presumption arises if these three conditions are met:

    • An open container is located in the passenger area.
       
    • At least some of the alcohol in the container has been removed.
       
    • The driver’s speech, other physical characteristics, appearance, conduct, or odor of alcohol can be reasonably associated with the consumption of alcohol by him.

    The passenger area of the vehicle is broadly defined to include the following:

    • Area where the driver sits in a vehicle
       
    • Any area within reach of the driver, including an unlocked glove compartment
       
    • Areas designed for passengers to sit in

    However, it does not include a motor vehicle’s trunk or the area behind the last upright seat in a van, station wagon, or SUV.

    Although Virginia's open container law applies specifically to drivers and not passengers, allowing any passenger to consume alcohol or carry an open container of alcohol significantly raises your risk of facing an open container charge. The safest way to reduce your risk of facing this charge is to simply never have an open container in the passenger area of your car while driving.

    Penalties Under Virginia’s Open Container Law

    Violation of the open container law is a Class 4 misdemeanor offense. If convicted, you may face a $250 fine but will not be sentenced to jail. In addition, you may also face a separate DUI charge if there is evidence of driving under the influence of alcohol or drugs, or while intoxicated.

    Even though the fine upon conviction is relatively small, it would be a mistake to just plead guilty if charged with this offense. Doing so would result in a permanent criminal record that may affect many areas of your life, such as your career, immigration status, security clearance, and ability to obtain a loan. You need the assistance of an experienced DUI attorney in Fairfax to build a strong defense so that the charges are dismissed or reduced to a less serious offense. To learn how our skilled lawyers can help, call our office or start an online chat to schedule a free consultation.

     

  • What are Your Rights If You’re Pulled Over After Drinking?

    If you’re being pulled over and you’ve been drinking, you need to know what your rights are.  If you don’t know your rights, you may unwittingly harm yourself more than you realize. Read on to find out what you can and cannot do when interacting with the police after being pulled over.

    How to Respond When You're Pulled Over

    Man being pulled over by Virginia police after drinking

    First, after you’re pulled over, the officer will approach your car, ask you to roll down your window, and request to see your license.  Virginia law requires all individuals, whether they are driving or not, to accurately identify themselves to police. Failure to do so is a crime under Code § 19.2-82.1 (Giving false identity to law-enforcement officer).  While this law does not require you to hand over your driver’s license, failure to do that may lead to a charge of driving without a license, which can be a class 1 or 2 misdemeanor (Code § 46.2-300).  So, it’s best to be honest and upfront about your identity and give the police your driver’s license after being pulled over.

    During this first portion of the encounter, an officer may ask you seemingly innocent sounding questions.  Officers who suspect someone of drinking and driving will ask where that person is coming from, who they were with, what they were doing, where they are headed to now, and any other questions they feel appropriate.  You are NOT obligated to answer a single question posed by the officer. You may respond by telling the officer that you do not wish to talk about anything and that you wish to remain silent. That is your right under the United States Constitution.  However, do not lie to the officer, because then you could expose yourself to an Obstruction of Justice charge (Code § 18.2-460) and the Constitution does not give you the right to lie when you are faced with an arrest.

    Field Sobriety Tests

    If police suspect that you have been drinking, either while driving or beforehand, they may next ask you to step out of the vehicle.  Police are permitted to ask you to step out of your vehicle, and if you fail to comply, they can force you out. So again, best practice here is to exit the vehicle.  But, before doing so, you can also ask whether you are being told to get out or asked to get out. If the officer tells you it is a request and not a command, you can respond by saying you do not wish to exit the vehicle.  Once they command you to get out, you should follow their order. Otherwise, you may find yourself being dragged out of your car.

    Once out of the vehicle, the officer will either ask you to go somewhere or guide you to a specific place.  Again, if asked to do something, you can respond by saying you do not wish to do that or by clarifying whether you are being asked or told to do it.  If they command you to move to a location, do as they ask.

    Once the police determine you are in a safe location, they typically will ask you to do field sobriety tests (FSTs) or question you, if they have not done so already or wish to ask more questions.  If you have told the officer that you do not wish to answer any questions, make sure you tell them that again. As for FSTs, most people believe they are required to do them. That is simply not the case.  You can decline to do FSTs. Additionally, the police cannot command you to do FSTs.

    Even if you decline to do FSTs, the police may still ask you to do a preliminary breath test (PBT).  The PBT is a little machine that officers carry with them and measures a person’s blood alcohol content (BAC).  These machines can be inaccurate, and a driver is NOT required to take the PBT. Police also cannot command you to take the PBT, so if you decline to do so, they have no other option at that point but to either arrest you or let you go.

    What to Expect If You Are Arrested for DUI

    If you are arrested, you will be brought to the police station and subjected to a breathalyzer test at the jail.  You are REQUIRED to take this test.  If you decline to take the test, you will be charged with Refusal, which can be a civil penalty or criminal charge, depending on the circumstances.  Thus, you must take the breathalyzer test when told to do so by the police. Alternatively, if you are unable to take the breathalyzer test, either because you are unconscious or have weak lung capacity, the police can seek a warrant to draw your blood and obtain your BAC that way.  Refusing this test can also lead to a Refusal charge.

    What you do during each of the above steps determines the strength of the case the police have against you.  Even if you decline to do all the tests and say nothing, there still may be sufficient evidence to prove your guilt.  Alternatively, even if you do all the tests and make statements, there may be insufficient evidence to prove you’re guilty.  

    You will need an experienced DUI attorney who knows the procedure for alcohol-related prosecutions to come up with the best strategy for your case, and we can help you do that.  Call us today if you are facing an alcohol-related charge to find out what defenses you may have.

  • What Are DUI Maiming Charges?

    Woman facing DUI maiming charges after DUI car accident in Fairfax, VA

    As many people quickly find out, Virginia’s DUI laws are strict and harsh.  Virginia also has a specific and separate charge when someone is driving under the influence of alcohol and consequently causes an accident with injuries.  This charge is called “DUI maiming” and can be found in Virginia Code § 18.2-51.4.  Unlike a standard DUI charge under Virginia Code § 18.2-266, which is a misdemeanor, this charge is a felony offense.  Therefore, it is much more serious and the consequences may be worse.

    DUI Maiming Statute in Virginia

    Specifically, the code states that, “any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment shall be guilty of a Class 6 felony” (emphasis added).

    Penalties For DUI Maiming in Virginia

    A class 6 felony can carry punishments of one to five years in prison and up to $2500 in fines.  There is also a mandatory license suspension, requirements for completion of an alcohol/substance abuse program, and the required installation of an ignition interlock if a restricted license is granted.

    Similar to a DUI, there are a variety of elements that the prosecutor must prove to obtain a conviction, especially since it is a car accident case.  If you have been charged with DUI maiming, it is important that you contact the experienced DUI lawyers at Greenspun Shapiro PC immediately so that we can walk you through your defenses and make sure you receive the best representation possible.

  • Will a reckless driving conviction in Virginia affect my security clearance?

    A Reckless Driving Conviction Can Cause Problems With Your Security ClearanceA security clearance is often required when a person works in the military, is a government employee, or is a government contractor. In addition, some employees in the medical, telecommunications, education, and financial industries may need a security clearance for their job. A security clearance allows these individuals to access different levels and types of classified information.

    If you are charged with reckless driving in Fairfax, you may be worried about how a conviction may affect your security clearance. Since reckless driving is a misdemeanor offense in Virginia, a conviction can result in a permanent criminal record. Will this stop you from getting or keeping a security clearance?

    How a Reckless Driving Conviction May Affect Your Security Clearance

    There are three levels of security clearances: confidential, secret, and top secret. The top-secret level is further classified into more specialized security classifications. If you are required to have a security clearance, you must apply for it and undergo a reinvestigation process, which typically occurs every five years. The good news is that a reckless driving conviction will not automatically preclude you from obtaining or keeping your security clearance.

    However, a reckless driving conviction is a red flag that can affect the decisions as to whether you should have a particular level of access to sensitive information. Factors that will be considered when reviewing your application include:

    1. Your position within your company or agency,
       
    2. What of security clearance you currently have,
       
    3. Whether this is your first reckless driving charge or a subsequent one, and
       
    4. What other types of convictions or charges are on your record.

    Do You Need to Report a Reckless Driving Conviction to Your Employer?

    If you are facing reckless driving charges, it is important to understand whether you have a duty to report your conviction to your employer. You need to consult your employee handbook or policies concerning this obligation. Some employers only require the reporting of a felony conviction, while others require disclosure of any offenses.

    Since a reckless driving conviction may have serious penalties and long-term consequences on your security clearance and job, you need to retain an experienced reckless driving attorney to help you build a strong defense to the charges you face. This may result in the charges being dismissed or reduced to a less serious offense. Schedule a free consultation with a member of our legal team by calling our Fairfax office to set your appointment today.

     

  • What is a wet reckless charge in a Fairfax DUI case?

    What You Need to Know About a Wet Reckless Charge in VirginiaWhen you are charged with a first offense of driving under the influence (DUI) in Virginia, you are facing a possible misdemeanor conviction that could carry sentence of jail time, fines, court costs, and loss of your privilege to drive. In addition, a DUI conviction would leave you with a permanent criminal record. However, you may be able to avoid some of the harsh consequences of a first DUI by entering into a "wet reckless" plea.

    What Is Wet Reckless in Virginia?

    Wet reckless is a term that refers to a reckless driving charge where alcohol is involved. There is no statutory offense in Virginia called “wet reckless.” However, under Virginia Code § 46.2-392, if a judge believes the reckless driving is alcohol-related, a person who is convicted of reckless driving may be required to enter and successfully complete the Virginia Alcohol Safety Action Program (VASAP). Here are some important things you need to know about a wet reckless plea:

    • There are no laws that require the government to offer you a wet reckless. It is solely within the discretion of the prosecutor handling the case. That means there are no guarantees that someone can get a wet reckless, regardless of how good their driving record is, how nice they were to the officer, or anything else.
    • Not all jurisdictions will permit a wet reckless plea. In fact, many jurisdictions have moved away from this practice.
    • A wet reckless outcome is usually reserved for first time offenders who were close to the blood alcohol content (BAC) legal limit. In Virginia, a BAC of .08 or greater creates a permissive inference that the accused was intoxicated at the time of operating the vehicle. If someone is at or below a .08, there is a greater likelihood that a wet reckless plea could be offered by the prosecution.
    • You may be required to enter into and successfully complete VASAP. Whether VASAP will be required will depend on the deal struck between you and the prosecution.
    • You will face similar penalties for wet reckless as for DUI. These can include a possible jail sentence, fines, and a suspended driver’s license for up to six months.

    A wet reckless conviction has less of a stigma than a DUI conviction. It also means that enhancements that would otherwise apply if convicted of a DUI, would not apply if only convicted of a wet reckless.

    Were you charged with DUI in Fairfax or the surrounding areas? We’re here to help you build a strong defense and consider all of your options. To learn more about our extensive experience and how we can help, start an online chat to schedule your free initial consultation.

     

  • Can I get a restricted license after being convicted of driving under the influence (DUI) in Virginia?

    Restricted License Requirements After a DUI in VirginiaIf you are convicted of DUI in Virginia, one of the penalties will be the suspension of your driver’s license for one year for a first offense DUI—and longer for a second or subsequent conviction. This can make it extremely challenging to get to your job, take your children to activities, and do everything else that you rely on driving to get to. However, you may be able to obtain a restricted license that gives you limited driving privileges.

    What Is a Restricted License in Virginia?

    A restricted license is a temporary license that permits you to drive to specific locations and at certain times of the day. The judge granting the restricted license will set the specific times and places allowed under the restricted license. Here are some of the circumstances where driving may be permitted:

    • To and from your job
    • To and from school
    • To and from necessary doctor appointments
    • To and from a child’s daycare or necessary doctor appointments
    • To and from court-ordered visitation with your child
    • To and from a religious place of worship

    When Can You Request a Restricted License If You Have Been Convicted of DUI in Fairfax?

    You must file a motion to request a restricted license, and there is no guarantee that the judge will grant your request. It is best to retain an experienced DUI attorney to file the motion on your behalf. In order to obtain a restricted license, you must enroll in the mandatory Virginia Alcohol Safety Action Program (ASAP) and, in some cases, you may be required to successfully complete the program before a restricted license is granted. In addition, you will most likely need to have an ignition interlock system installed on your vehicle.

    If this is your first DUI offense, you can request a restricted license on the date of your conviction or guilty plea, although you will not be able to actually drive on the restricted license until you enroll in ASAP. However, if this is your second DUI conviction within 10 years, you will need to wait four months to receive a restricted license. The wait is one year if you were convicted of a second DUI within the last five years.

    Have you been charged with DUI in the Northern Virginia area? Our experienced DUI attorneys have decades of experience successfully representing our clients in DUI cases in Fairfax and Northern Virginia. We will aggressively fight the charges you face. Start an online chat or call our Fairfax office today to schedule your free consultation.

     

  • What can I expect to happen at my arraignment for DUI in Virginia?

    DUI Arraignments in VirginiaWhen you have been charged with driving under the influence (DUI) or driving while intoxicated (DWI) in Virginia, you need to understand what happens in these criminal cases so that you know what to expect. Your first court hearing is usually an arraignment. Here, we explain what happens at an arraignment.

    What Occurs at DUI Arraignments in Virginia

    An arraignment can be conducted on the day of your arrest or a few days later. If you were released from jail on your own recognizance—your promise to return to all court hearings—or by posting bail, it is more likely that the hearing will be set at a later date. Your arraignment may be conducted by video conferencing if you are still in jail. At the hearing, the judge will do the following:

    • Read the criminal charges to you.
       
    • Ask you if you have retained an attorney and advise you of your right to a court-appointed lawyer if you cannot afford to pay for one. If you are requesting an attorney, the judge will most likely ask you questions about your financial situation before appointing one.
       
    • Advise you of future court dates.
       
    • In some cases where bail has not been set, the judge may set the amount of your bail. However, it is very rare to receive bond at your arraignment hearing. Therefore, it is important to retain an attorney as soon as possible so you receive a bond motion promptly.

    It is best to retain an attorney as soon as possible after your arrest and have him attend the arraignment with you. In some cases, he may be able to file paperwork with the court advising of his representation so that you do not need to attend your arraignment.

    Contact Us for Help

    If you were arrested for DUI or DWI in Northern Virginia, our experienced DUI attorneys are here to build a strong defense to the charges you face so that they are dismissed or reduced to a less serious offense. Call our Fairfax office or fill out our online form to schedule your free consultation today.

     

  • Is texting while driving considered reckless driving in Virginia?

    Reckless Driving Charges and Cell Phone UseIf you are texting while driving, you can be charged with and convicted of reckless driving or illegally using a handheld personal communications device, which is a traffic infraction. All forms of reckless driving are treated as class 1 misdemeanor offenses, which are the highest level of misdemeanor in Virginia. A conviction of any type of reckless driving can result in a jail sentence, fines, suspension of your driver’s license for up to six months, and a permanent criminal record. There are approximately 15 different offenses that are considered reckless driving. Traffic infractions, on the other hand, carry far less penalty, because only fines and court costs can be imposed. Before you prepay your ticket or appear in court on your own, consider calling us to explore what defenses you may have and to see how we can help.

    What Is the Offense of Texting While Driving in Virginia?

    Virginia Code § 46.2-1078.1 makes it illegal to use a hand-held device while driving in Virginia. It prohibits the following actions:

    • Manually entering multiple letters or text in the device to communicate with another person
       
    • Reading any email or text that is transmitted or stored in the device

    There are exceptions for drivers operating emergency vehicles, calling in an emergency, reading a caller id number, or using a factory-installed or aftermarket GPS. The infraction of texting while driving is a "primary offense," which means a police officer can stop a driver if he suspects that the driver is violating the anti-texting laws. Texting while driving is a traffic infraction. The penalty for a first offense is a $125 fine, and for a second or subsequent offense, it is a $250 fine. Three demerit points are also assessed against the driver by the Virginia Department of Motor Vehicles (DMV).

    Reckless Driving Offenses in Virginia

    A person can be charged with both texting while driving and reckless driving if the person is engaging in one of the unsafe driving practices that are considered reckless driving while also engaging in texting. A few of these offenses include:

    Reckless driving is a Class 1 misdemeanor. If you are convicted, you may be sentenced to up to one year in jail and a fine of up to $2,500 in addition to court costs. Also, your driver’s license might be suspended for up to six months, and six demerit points will be assessed by the DMV.

    Have you been charged with reckless driving for texting or for another reason? You may have strong defenses to the charges that you face even if you know that you are guilty. Let our experienced reckless driving attorney raise all of your defenses so that the charges you face are dismissed or reduced to a less serious offense. To schedule your free initial consultation, start an online chat or call our office today.