How Do I Get Dash and Body Camera Recordings?

Dash and body camera recordings have changed policing and criminal prosecutions.  The recordings can resolve credibility contests between officers and the public, while also creating new legal issues and evidentiary questions. Beginning December 15, 2016, the City of Fairfax police department will equip all patrol and motor officers with body cameras.  Video of police incidents will be stored on a cloud-based server, where officers will have read-only access.  

What does this mean for you?  In all traffic and criminal matters, case preparation should include issuing a written request and/or subpoena to law enforcement for any dash and body camera footage.  The same should be issued to county 911 call centers, the Virginia Department of Transportation and local businesses to obtain any audio and video recordings of your incident.  At the very least, a letter should be sent to the proper government agency immediately after an incident to ensure that relevant recordings are preserved in case of future prosecution.

What Is the Difference Between Speeding and Reckless Driving?

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In Virginia, driving 1 to 19 miles per hour over the speed limit is speeding.  The penalties for this traffic infraction are a fine and the application of negative points on your Virginia driving record:

  • 3 points for driving 1 to 9 miles per hour over the speed limit.
  • 4 points for driving 10 to 19 miles per hour over the speed limit.
  • 6 points for driving 20 or more miles per hour over the speed limit.

Reckless driving is a criminal misdemeanor that occurs when driving 20 miles per hour over the maximum speed limit, driving over 80 miles per hour or, irrespective of the maximum speed limit, driving in a manner that endangers the life, limb or property of any person (including the driver).  Reckless driving carries a maximum punishment of 12 months of incarceration, a $2,500 fine, and a 6-month license suspension.  6 negative points will also be applied to your Virginia driving record.  

In September, 2016, the Virginia Department of Motor Vehicles added signs along Interstates 95 and 81 to remind drivers of reckless driving laws and penalties.  

When driving this holiday season, keep these regulations in mind.  If you unfortunately receive a citation, contact Melinda VanLowe to discuss an effective defense.

 

 

 

 

Virginia's School to Prison Pipeline

It is critical for students and parents to become informed about the school disciplinary process and the unfortunate nexus between education and the criminal justice system.  For more information on this topic, please review the September 12, 2016 broadcast of "Inside Scoop," moderated by Catherine S. Read.  During her segment, (14:59), Melinda VanLowe discusses how parents and students should respond when school administrators and school resource/police officers request to question/investigate your student. 

48 Hours

Within 48 hours, police officers in two distinct jurisdictions – Louisiana and Minnesota – fatally shot two young black men in the context of routine investigative stops.  These incidents occurred within weeks of the United States Supreme Court’s opinion in Utah v. Strieff.  The Court upheld what all parties characterized as the illegal seizure of a man merely because an officer observed him leaving an apartment under surveillance for alleged drug activity.   Writing the opinion of the Court, Justice Clarence Thomas identified two “good-faith mistakes” made by the officer that led to the illegal seizure: (1) the officer lacked any basis to assume Mr. Strieff was present in the apartment for a drug transaction and (2) the officer illegally seized Mr. Strieff to investigate activity in the apartment.  While the Court condoned forgiveness of these “good-faith mistakes,” the shootings in Louisiana and Minnesota exemplify the critical importance of constitutional protections and what can occur when these rights are violated.  Justice Sonia Sotomayor’s dissent in Strieff  best discusses why constitutional violations by police should not be excused by courts as mere “good faith mistakes:”

 

[f]or generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. . . . By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. . . . They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.  579 U.S.  _____ (2016) (external citations omitted)

 

Investigations of both shootings will hopefully produce accurate and substantive details of what occurred before these shootings and lead to necessary reform.

VOTE!

Election Day is Tuesday, November 3, 2015. Many people vote in elections for President but ignore local elections.  This is unfortunate as government officials at the local level can have a greater impact on you and your community.  For example, on Tuesday, Fairfax County residents will elect the Chairman of the Board of Supervisors, members of the School Board and the Commonwealth’s Attorney.  Officials elected to these positions have substantial power to determine any number of issues including local tax rates, how schools operate and how criminal cases are prosecuted and punished.  Certainly residents of Rowan County Kentucky learned about the function of a clerk of court after Kim Davis halted the issuance of marriage licenses to gay couples.

Visit www.fairfaxcounty.gov/elections/upcoming.htm to find your polling place and get information about the candidates.  Whether you want to maintain the status quo or make a change, Tuesday is your chance to be heard!

Alert! New Red Light Camera Active in Fairfax City.

Cameras are poised to document drivers running red lights at four locations in Fairfax City.  Fairfax  Boulevard (Route 29) and Plantation Parkway is the latest intersection to add a photo red light enforcement camera.  Other intersections are:

  • University Drive and North Street
  • Main Street (Route 236) and Pickett Road, and
  • Fairfax Circle.  

Tickets for alleged red light violations are mailed and drivers are able to pay tickets online.  Alternatively, tickets may be challenged in the Fairfax City General District Court.  Pursuant to section 15.2-968.1 of the Code of Virginia, defenses to challenge a red light violation are asserted by (i) filing an affidavit by regular mail with the clerk of the General District Court if you were not the operator of the vehicle at the time of the alleged violation, (ii) testifying in open court under oath if you were not the operator of the vehicle at the time of the alleged violation, or (iii) filing a certified copy of a police report with the Fairfax City General District Court before the hearing date, showing that the vehicle had been reported to the police as stolen prior to the time of the alleged violation.  In addition to these defenses, there are potential evidentiary challenges to red light citations if the evidence used to support a citation is not gathered pursuant to the statute.  

 

The State of the Law: Key Supreme Court Rulings and Virginia Legislative Changes.

     The Supreme Court concluded the October 2014 term. Some notable cases  are:

  • Obergefell v. Hodges:  Strikes down state bans on same-sex marriage as unconstitutional and requires states to issue marriages licenses to same sex couples and recognize lawful out-of-state marriages between same sex couples.

  • Glossip v. Gross: The Court determined that Oklahoma's use of the sedative midazolam as the first part of the lethal injection protocol does violate the Eighth Amendment prohibition against cruel and unusual punishment.  

  • King v. Burwell:  Upholds section 36B of "Obama Care," or The Patient Protection and Affordable Care Act Section, which makes tax credits available to individuals who purchase health insurance on an exchange created by the federal government.

     Amendments to the Code of Virginia have also taken effect in 2015.

  • 18.2-250.1:  In prosecutions for possession of marijuana in the form of cannabidoil oil or THC-A, defendants can now assert as an affirmative defense that they possessed such oil pursuant to a valid written certification issued by a practitioner in the course of her/his professional practice pursuant to treatment or to alleviate the symptoms of (i) the individual's intractable epilepsy or (ii) if such individual is the parent or legal guardian of a minor, such minor's intractable epilepsy.  If the defendant files the valid written certification with the court at least 10 days prior to trial and causes a copy of such written certification to be delivered to the attorney for the Commonwealth, such written certification shall be prima facie evidence that such oil was possessed pursuant to a valid written certification.

  • 18.2-50.3:   Makes it a separate and distinct class 6 felony for a person to entice, solicit, request, or otherwise cause another to enter a dwelling house if the person intends to commit certain specified crimes, including capital murder, first and second degree murder, murder of a pregnant woman, abduction with intent to extort money or for immoral purposes, aggravated malicious wounding, robbery, rape, forcible sodomy, or object sexual penetration, within the dwelling house.

  • 19.2-310.2:  Adults convicted of the following offenses must now give a sample of her/his blood, saliva or tissue for DNA analysis:  §§ 16.1-253.2 (violation of a protective order), 18.2-60.3 (stalking), 18.2-60.4 (violation of a stalking protective order), 18.2-67.4:1 (infected sexual battery), 18.2-102 (unauthorized use of animal, aircraft, vehicle, or boat valued at less than $200), 18.2-121 (entering the property of another for purpose of damaging it), 18.2-387 (indecent exposure), 18.2-387.1 (obscene sexual display), and 18.2-479.1 (resisting arrest).  The offenses are added to five misdemeanor sex offenses that already a DNA sample to be provided: (i) § 18.2-67.4 (sexual battery), (ii) § 18.2-67.4:2 (sexual abuse of a child 13 years of age or older but under 15), (iii) § 18.2-67.5 (attempted sexual battery), (iv) § 18.2-130 (peeping), and (v) § 18.2-370.6 (penetrating the mouth of a child under 13 with the tongue). 

  • 46.2-816:  Now cars shall not follow more closely than is reasonable behind bicycles, electric assistive mobility devices, electric power-assisted bicycles, and mopeds.

  • 20-124.2:  Courts may now order child support to be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 (b) unable to live independently and support himself; and (c) resides in the home of the parent seeking or receiving child support.

Please consult The Law Office of Melinda L. VanLowe, PC, to discuss how these new laws may impact you.

 

 

 

 

Fairfax County Police Department Training: Mental Illness.

Training and policy allow police officers to arrest and charge people experiencing symptoms of severe mental illnesses.  The procedures, however, do not appear to incorporate effective methods to diffuse mental health incidents and seem to stem from the notion that criminal prosecution is an effective vehicle for mentally ill citizens to "get help."  This flawed process temporarily incarcerates individuals but often fails to deliver the desperately needed permanent treatment, care and community support.  At its worst, these procedures have led to police shootings of mentally ill citizens.  Fatal shootings in Quincy, Massachusetts and Dallas, Texas are well publicized recent examples.   

On June 8, 2015, the Fairfax County Criminal Justice Academy conducted training titled "Hearing Voices."  This sensitivity training initiative is part of a 40-hour Crisis Intervention Team training course.  The Fairfax Times detailed officer responses to the training, which consisted of listening to recordings that purportedly replicate the daily, invasive hallucinations heard by citizens suffering from schizophrenia.  

This training is a positive step toward implementation of severely needed substantial reforms to the treatment of Virginia citizens suffering from mental illness.       

How Do I Fight School Suspension or Expulsion?

To maintain safe schools, alleged violations of school rules or state laws are rigorously investigated to find the student or students deemed to be dangerous or sources of bad behavior.

At the beginning of the school year, students receive a rights and responsibilities manual,  and take a test to examine comprehension of the regulations.  Oftentimes, this is the first and only review of the manual until your child is facing disciplinary action.  Recently, the Fairfax County School Board made changes to the disciplinary code.  Despite parent protests in 2012, the Fairfax County School Board voted to reject a request that administrators call students’ parents before questioning students and obtaining a written statement admitting to prohibited behavior. 

How can you protect your child from suspension or expulsion?  Because the disciplinary process can lead to negative consequences for your child, at the beginning of the school year, it is important to read and understand what actions are prohibited by the school and the disciplinary process.  Then, discuss with your child steps to take if a teacher, principal or school resource officer pulls your child out of class to talk about a potential violations of school rules or laws.  Students should: 

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1.      Ask to speak with a parent immediately.

2.      Exercise the right to remain silent.  Do not answer any questions or provide a written or oral summary of what happened until you consult with a parent or attorney.  While your instinct may be to cooperate with the school and provide a statement, this will not help avoid expulsion.  Rather, the statement will be used as an admission if your behavior violates school rules or state laws.

3.      Consult with an attorney.  

 

Why takes these steps?  A school investigation can expose your student to serious consequences.  Now school resource officers are posted at almost every middle and high school in Fairfax County.  These are county police officers stationed in the school.  When investigating incidents, school administrators work together with school resource officers.  If your student makes statements to an administrator, those statements can, and often are used to file a criminal charge if the behavior violates state law.  For example: if an administrator finds marijuana in your student’s locker.  Not only can your child be suspended or expelled, the police can also charge her with a criminal misdemeanor.

A disciplinary action can also lead to your child’s removal from school and will certainly limit choices when applying to college.   

What can you do if your child is facing suspension or expulsion?  If the school makes a decision to recommend suspension or expulsion, your student has rights.  To protect those rights, immediately contact the office of the superintendent in your county and request the suspension/expulsion disciplinary packet.  This packet contains your student’s disciplinary, academic, and attendance records as well as statements from your student and other witnesses about the incident.   The superintendent’s office will review this packet and use it, in part, to decide whether to suspend or expel your child.

Finally it is important to contact a lawyer to assist with the disciplinary process.   The American Bar Association discussed the need for parents to retain an attorney for their children who are the subject of school discipline. 

Contact Melinda VanLowe and schedule an initial consultation to get quality advice and guidance based upon her years of experience representing students.

 

 

How To Survive a DWI Traffic Stop.

 “I’m fine.” “I’m almost home.”  “I can make it.”  These are common phrases used to justify driving after drinking.  When driving, if you realize that you are even the slightest bit impaired,

  1. pull over to a safe place immediately (preferably a parking lot),
  2.  remove the keys from the ignition and place them on the dashboard,
  3. call for transportation from a friend, family member, colleague, or cab.

These 3 steps may save your life and prevent a DWI conviction.  Here’s why: 

Section 18.2-266 of the Code of Virginia begins by saying, “[i]t shall be unlawful for any person to drive or operate any motor vehicle . . .”  Section 46.2-100 defines “operator [of a motor vehicle]” as any person who “is in actual physical control of a motor vehicle on a highway.”  So, in a DWI/DUI case, the prosecutor must prove that you “drove” or “operated” the car.  This may seem like a simple concept, but Virginia courts have been debating the definition of “operate” in DWI/DUI cases for years.

Presence in or around a car when stopped is not enough to prove operation.  BUT, operation can be proven by a driver’s presence plus starting the engine, or “manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion or engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.”  See Rix v. Commonwealth, 282 Va. 1 (2011).   

In the Rix case, an officer saw a vehicle “weaving” on the highway and stopped the car.  While doing so, he saw the driver exchange seats with the front-seat passenger.  The driver, who had been behind the steering wheel while the car was in motion, was in the passenger seat when the officer reached the car.  The former passenger was Ellen Marie Rix (the defendant) whom the officer found sitting in the driver's seat behind the steering wheel.  The keys were in the ignition and the engine was running.  At trial, the original driver admitted she was driving the car initially and switch seats at the last minute.  The Supreme Court of Virginia still concluded that because the officer observed Ms. Rix in the driver’s seat, with the keys in the ignition she “operated” the motor vehicle and was, therefore, guilty of DWI. 

In another 2011 case decided before Rix, police found the defendant slumped over the steering wheel of his car, parked in a residential neighborhood, asleep or unconscious.  The car's radio was playing but the engine was not running and the ignition key was turned to the position that allowed the radio to operate while the engine was not running.  The gearshift was in the “park” position.  The Virginia Supreme Court opined the defendant was “operating” the vehicle, even when unconscious because, by turning the ignition key to the “on” or “accessory” position, allowing the radio to operate, he had manipulated the electrical equipment of the vehicle.  281 Va. 212 (2011)

If driving after drinking, when in doubt of your sobriety, pull over, take the keys from the ignition and call for a sober ride home.

'Tis the Season

Holiday parties. New Year’s Eve. The Super Bowl. It’s a time of celebration. Most drivers make a plan to get home safely.  In reality, even the best laid plans can lead to a traffic stop.  Often, answers to seemingly simple, routine officer questions, pave the way to a criminal charge and conviction.  The top 5 questions, commonly-asked by police officers that, if answered by you, will likely lead to a criminal charge and conviction are:

  1. Do you know why I stopped you?
  2. How fast do you think you were going?
  3. Do you know the speed limit on this road?
  4. Have you had anything to drink/How much have you had to drink?
  5. Do you have anything in the car that I should know about/May I search your car?

These questions are designed to get statements for use against the driver in court.  As an example, if you are stopped because the officer suspects you are driving on a suspended license, the officer will ask if you know that your license is suspended.  Answering “yes” is enough to convict you of a misdemeanor crime.

When stopped by a police officer, exercise your right to remain silent when confronted with incriminating questions, while also interacting with the officer in a professional manner; do not argue with the officer, even if you are correct.  Your actions and statements during a traffic stop can make the difference between the judge finding you guilty or not guilty.