Complex relevant legal realities must be known by your attorney, says Fairfax criminal lawyer

Complex legal issues and related law abound in criminal court, even with at-first seeming simple misdemeanor cases. As a Fairfax criminal lawyer, I know that many criminal cases that at first seem simple turn out to be anything but that. Your Virginia criminal lawyer needs to know the relevant statutory law and caselaw, and the real meaning and subtleties in the applicable law. It is not enough to speak persuasively without having the legal tools for persuading. Ask your potential Fairfax criminal lawyer / Virginia criminal defense attorney about the extent to which s/he reads Virginia and Supreme Court appellate court cases, keeps expanding his or her relevant legal knowledge, and fully analyzes and synthesizes difficult legal topics to persuasively argue those matters to judges and prosecutors.

Will my Virginia criminal lawyer capably counter judges, prosecutors and police officers who do not know the relevant law — complex and otherwise — but insist that they do?

Incorrect judicial, prosecutorial and police view of the applicable Virginia law can involve law running from the basic to more complex. Your Fairfax criminal lawyer / Virginia criminal attorney needs to be ready to be ready to pounce when that happens. I have listened to a judge at my trial overrule my objection to letting my client’s pre-arrest, pre-Miranda assertion of his Fifth Amendment right to remain silent, on the basis that up to that point the police intrusion on my client’s liberty was minimal and brief, when the latter has nothing to do with the former under the caselaw. (See below for why this judge is incorrect.) I have heard a prosecutor make the erroneous claim that the Fifth Amendment Constitutional right to remain silent does not apply before Miranda applies.  I have heard another judge insist that I was incorrect that there is no longer such a thing as allowing a car search as an incident of arrest, on the basis that he teaches that matter, when Gant v. AZ, 556 U.S. 332 (2009), shows him to be entirely incorrect. I have heard a cop unabashedly snicker at my question whether he had my client open his mouth at least twy minutes before blowing into the post-arrest Intox EC/IR II breathalyzer machine, when his breath alcohol concentration (BAC) certificate of analysis attestation clause claimed the testing was conducted in accordance with the very Virginia Department of Forensic Science (DFS) Intox EC/IR II guidelines that mandate such a mouth inspection at least twenty minutes before the breath testing starts. Your lawyer will not help you to get mad over such erroneous claims about the applicability of the criminal law, versus to know that law and to be able to persuade what the actual state of the law is.

Does my clear assertion of my Fifth Amendment Constitutional right to remain silent bar that silence from trial evidence?

Your clear assertion of your Fifth Amendment right to remain silent bars that silence from trial evidence. That applies both before Miranda rights are read (Salinas v. Texas, 570 U.S. 178 (2013)) , and after Miranda rights are read (Doyle v. Ohio, 426 U.S. 610 (1976)). Do not let the prosecutor make such clear law any more complex than is needed. 

Does my clear assertion of my Fourth Amendment Constitutional right to refuse searches bar that refusal from trial evidence? Is my refusal to consent to a search barred from being considered for whether the police search or detention of me was illegal?

Your refusal to consent to a police search should not be admissible against you at trial. U.S. v. Thame, 846 F.2d 200 (3rd Cir. 1988); Longshore v. Md. 399 Md. 486 (Md. 2007). Refusal to consent to searches is ordinarily inadmissible at trial, according to the U.S. Court of Appeals for the Fourth Circuit, in Richmond. U.S. v. Wilson, 953 F.2d 116 (4th Cir. 1991). In knowing the complex aspects of the applicable law, your lawyer needs to be ready to look beyond only relying on Virginia caselaw.

Fairfax criminal lawyer Jonathan Katz makes sure he knows the applicable law for your case before going to court on your motions hearing date and trial date. Call 703-383-1100 for your free in-person confidential consultation about your court-pending case.