Underdog Blog – Fairfax Criminal Defense Lawyer | Virginia DUI Attorney
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Urging Hearsay Limits on Speed Calculations
Particularly now that Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), has become firmly entrenched in the Constitutional landscape, Sixth Amendment challenges to machine-based speed calculations should be more persuasive than ever when the people who calibrated the machine do not testify live at trial. Virginia, for instance, has...
When judges rule 6-5 on a defendant’s offer to take a breathalyzer test
An officer arrested a man for DWI on private property, and was not sure whether he would mention the possibility of taking a breathalyzer test, not knowing whether Virginia’s implied consent law for taking a breathalyzer test applied. After the defendant’s arrest but before the...
Challenging NCIC Information can be a Matter of Life or Death
Prosecutors commonly obtain National Crime Information Center (“NCIC”) reports of defendants’ criminal records. A colleague recently pointed out the unfairness of judges rejecting attacks on NCIC reports, because he asserts that the FBI, which runs the NCIC, disclaims responsibility for accuracy in NCIC reports. Certainly,...
In Virginia, no stems, no seeds that you don’t need?
Image from public domain. In Virginia, so long as one-half ounce or less is involved, distribution and possession with intent to distribute marijuana is only punishable as a misdemeanor rather than as a felony. Va. Code § 18.2-248.1. What happens, then, if the police catch...
Scrutinize confidential informants with a fine-toothed comb
Read enough search warrant applications, and "CI" (confidential informant) will rear its head again and again. Praised be Virginia’s Court of Appeals (albeit by only 2-1) for reversing a conviction that resulted from a so-called reliable confidential informant’s tip that the defendant was about to...
The federal sentencing guidelines may not bind judges
Today, the Fourth Circuit revisited Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007), in ordering a resentencing where a sentencing judge "stated that while it did not agree with the Guidelines range, it was ‘obligated’ to give...
Putting a shelf life on Miranda rights
How many Supreme Court justices have been interrogated by police? Probably none. How many have asserted their Miranda rights with the police, only to have the police repeatedly come back to them seeking a reversal of the waiver? Probably fewer. How many of them agree...
Summary contempt proceedings are only available where the judge witnesses the contempt firsthand
Many make much fanfare about the United States criminal justice system’s right for criminal defendants to remain silent, to have a trial, to be presumed innocent unless and until found guilty beyond a reasonable doubt, and the right to counsel. However, the courts where I...
Use Brady as a shield and sword
Last August, I wrote about Brady v. Maryland, 373 U.S. 83 (1963). In its key holding, Brady proclaims: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to...
Keeping Drug Field Tests Out of Evidence
Virginia has a statute allowing marijuana field testing testimony into evidence: “In any trial for a violation of § 18.2-250.1, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department...