Posts Tagged ‘Virginia Beach Office’

VIRGINIA CRIMINAL DEFENCE LAWYERS

VIRGINIA BEACH

Officer Brian Walters spotted the Jeep weaving along Elson Green Avenue and flipped on his emergency lights. When the driver, a 40-year-old woman, pulled over, her speech was slurred and eyes were glazed.

Still, Walters was stunned when she registered a blood alcohol content of 0.40 – five times Virginia’s legal limit for driving , a level generally associated with a coma and demanding medical attention.

Of the 135 arrests Walters made last year for driving under the influence, this woman was the most intoxicated. She had been on her way to do some shopping at 6:30 on a Saturday …

The SRIS Law Group Virginia Criminal Defense Lawyers in our Virginia Beach Virginia office assist clients with Criminal cases throughout Virginia.

If you need a Virginia Criminal Defense Lawyer in any of following Virginia counties to help you with a Criminal case, contact us at 888-437-7747.

Contact our Virginia Criminal Defense Attorneys today for help.

Virginia Beach Office

 VA BEACH CITY, NORFOLK  COUNTY, SOUTHAMPTON COUNTY, ACCOMACK COUNTY, NEWPORT NEWS, NORTHAMPTON COUNTY, SUFFOLK COUNTY, CHEASAPEAKE COUNTY, HAMPTON COUNTY

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Virginia Beach Divorce Lawyers

The SRIS Law Group Virginia Divorce Lawyers in our Virginia Beach Virginia office assist clients with Divorce cases throughout Virginia.

If you need a Virginia Divorce Lawyer in any of following Virginia counties to help you with a Divorce case, contact us at 888-437-7747.

Contact our Virginia Divorce Attorneys today for help.

Virginia Beach Office

VA BEACH CITY, NORFOLK COUNTY, SOUTHAMPTON COUNTY, ACCOMACK COUNTY, NEWPORT NEWS, NORTHAMPTON COUNTY, SUFFOLK COUNTY, CHEASAPEAKE COUNTY, HAMPTON COUNTY

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Reckless Driving Virginia Beach

The SRIS Law Group Virginia Reckless Driving Defense Lawyers in our Virginia Beach Virginia office assist clients with Reckless Driving cases throughout Virginia.

If you need a Virginia Reckless Driving Defense Lawyer in any of following Virginia counties to help you with a Reckless Driving case, contact us at 888-437-7747.

Contact our Virginia Reckless Driving Defense Attorneys today for help.

Virginia Beach Office

VA BEACH CITY, NORFOLK COUNTY, SOUTHAMPTON COUNTY, ACCOMACK COUNTY, NEWPORT NEWS, NORTHAMPTON COUNTY, SUFFOLK COUNTY, CHEASAPEAKE COUNTY, HAMPTON COUNTY

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Virginia DUI Laws

VIRGINIA DUI LAWYER & DWI DEFENSE ATTORNEYS

WE REPRESENT CLIENTS IN STATE AND FEDERAL COURTS

Virginia DUI & DWI laws Information Page

Welcome to the Virginia DUI & DWI laws Information Center, sponsored by SRIS, P.C. The Virginia DUI & DWI defense attorneys of SRIS, P.C. have offices in Fairfax, Lynchburg, Manassas, Richmond, Virginia Beach. Our Virginia DUI & DWI attorneys of SRIS, P.C. concentrate on DUI & DWI defense.

If you wish to consult a SRIS, P.C. DUI attorney or DWI lawyer, please simply contact us via e-mail, phone, or by filling out our on-line form. A DUI lawyer or DWI attorney of SRIS, P.C. will gladly consult with you regarding your matter.

FAIRFAX OFFICE:
4008 Williamsburg Court
Fairfax, Virginia 22032
Phone: (703) 278-0405

RICHMOND OFFICE:
7400 Beaufont Springs Drive, Suite 300
Richmond, Virginia 23225
Phone: (804) 201-9009

MANASSAS OFFICE:
8551 Sudley Road
Manassas, Virginia 20110
Phone: (703) 278-0405

VIRGINIA BEACH OFFICE:
900 Commonwealth Pl, Suite 200
Virginia Beach, Virginia 23464
Phone: (757) 512-5002

LYNCHBURG OFFICE:
102 Oakley Ave.
Lynchburg, Virginia 24501
Phone: (434) 509-4004

To obtain a general overview of DUI, and DWI defense, please click here

To learn more about the laws pertaining to DUI, OUI, and DWI defense in Maryland or Massachusetts, please click on the state.

Special Note: If you have been charged with a DUI or DWI on federal land such as the George Washington (GW) Memorial Parkway, or on Fort Meyer, Quantico or Fort Belvoir or on any other military base, you need a Virginia DUI lawyer who is experienced in handling drunk driving offenses in federal court. The attorney you contemplate retaining to assist you must be experienced in handling criminal and traffic matters and familiar with the federal system.

Please click on any of the State of Virginia Driving Under the Influence and Driving While Intoxicated Laws to learn more about them:

DUI LAWS: Adults

DUI Laws: Underage Possession & Penalties

Laws of Virginia driving under the influence of alcohol

DUI laws: Adult (top)

Driving Under the Influence of Alcohol and Drugs (DUI)

Penalties

Transporting Children While Driving Under the Influence (DUI)

Vehicle Impoundment

Administrative License Revocation

Open Container

VA Code §18.2-266 – DUI of Alcohol and Drugs. (top)

When operating a motor vehicle, boat or water craft in Virginia, you are legally considered driving or operating under the influence if your blood alcohol content (BAC) is 0.08% or higher. You may be considered under the influence with a lower BAC if your ability to operate a motor vehicle, boat or water craft is impaired. If your driving is affected because your are under the influence of any drug, you may face the same penalty as driving under the influence of alcohol.

VA Code § 18.2-270 – DUI Penalties (top)

A second DUI offense within five years in Virginia carries a mandatory jail sentence of at least five days and up to 30 days. A third DUI offense will be prosecuted as a 6 felony. If your BAC is 0.20% or higher at the time of the first or second offense, you face additional mandatory jail time.

VA Code § 18.2-270 – Transporting Children While Driving Under the Influence. (top)

You are subject to a extra penalty in Virginia if you have children under age 18 in the motor vehicle when you are driving under the influence of alcohol or drugs. There is an additional fine of up to $1000 and up to 80 hours of community service for second conviction.

VA Code § 46.2-301.1 – Vehicle Impoundment (top)

The vehicle you are driving in Virginia will be immediately impounded or immobilized for 30 days if you are caught driving after your license has been suspended for an alcohol-related offense. The court can impound the vehicle for an additional 90 days following conviction. The owner of the vehicle may petition the court for release of the vehicle. Anyone who knowingly permits operation of their motor vehicle by a person known to have a revoked or suspended license for an alcohol-related offense can be charged with a 1 misdemeanor.

VA Code §46.2-391.2- Administrative License Revocation (top)

Your driver’s license in Virginia will be automatically revoked by the arresting officer for seven days if your BAC is 0.08% or higher or if you refuse to take a breath test. You no longer have the option of requesting a blood test instead of a breath test for an alcohol related offense.

VA Code §18.2-323.1 – Open Container (top)

You may be charged with drinking while operating with an open container of alcohol in Virginia if your are stopped by law enforcement and you have an open container of alcohol in the passenger compartment and the contents have been partially removed, and you exhibit signs that you have been drinking. The passenger area means the area designed to seat the driver and passengers and any area within the driver’s reach, including an unlocked glove compartment.

DUI Laws: Underage Possession & Penalties (top)

Equal Penalties

Zero Tolerance for Under 21

Ignition Interlock System

Persons to Whom Alcoholic Beverage May Not Be Sold

Underage Possession of Alcohol

Purchase Alcohol for Underage Persons

Drinking/Possessing Alcohol on School Grounds

Misrepresentation of Age

VIRGINIA IS TOUGH – on underage drinkers driving under the influence of alcohol or drugs.

Now more than ever, Virginia school officials and college campus police are enforcing the law on underage possession of alcohol. A conviction for underage possession in Virginia can result in any or all of the following possible consequences. Suspension from the academic institution, expulsion or disciplinary actions, etc. Also, a conviction for underage possession in Virginia can result in car insurance rates being raised for the convicted individual. Some car insurance companies are raising the rates of car insurance as high as $5000 per year for those who are convicted of underage possession. Please contact a Virginia lawyer of the Law Offices of SRIS, P.C. to determine what options you have if you are charged with underage possession in Virginia.

Virginia Code §18.2-266.1 – Equal Penalties (top)

Persons under age 21 who drive while under the influence of drugs or with a blood alcohol content (BAC) of 0.08% or higher in Virginia are subject to the same penalties as persons age 21 or older.

Virginia Code §18.2-266.1 – Zero Tolerance for Under 21 (top)

If your are under age 21 in Virginia, and you drive with a BAC of at least 0.02% but less than 0.08% in Virginia, you will receive a fine of up to $500 and a six-month driver’s license suspension.

Virginia Code §18.2-270.1 – Ignition Interlock System (top)

If convicted of a second DUI offense within five years of a first offense in Virginia, you will lose your license for three years. You must use an ignition interlock for six months for more on every motor vehicle you own or co-own whether you apply for a restricted license (after one year) or a full license (after three years, applies to both adult and under 21)

Virginia Code §4.1-304 – Persons to Whom Alcoholic Beverage May Not Be Sold (top)

If you sell alcoholic beverages to a person under age 21 in Virginia, you are subject to a fine up to $2,500 and 12 months in jail.

Virginia Code §4.1-305 – Underage Possession of Alcohol (top)

If you are under age 21 and you are in possession of an alcoholic beverage in Virginia, you face a fine of up to $2,500 and 12 months in jail.

Virginia Code §4.1-306 – Purchase Alcohol for Underage Persons (top)

If you purchase alcoholic beverages for a person you know to be under age 21 in Virginia, you face a fine of up to $2,500 and 12 months in jail.

Virginia Code §4.1-309 – Drinking/Possessing Alcohol on School Grounds (top)

Drinking or possessing alcoholic beverages on public school grounds in Virginia can result in a fine of up to $1000 and six months in jail.

Virginia Code §4.1-305B – Misrepresentation of Age (top)

If you are under age 21 in Virginia and you use or attempt to use an altered, fictitious or simulated document or student ID to establish a false age in an attempt to purchase alcoholic beverages you will:

be fined at least $500 but not over $2,500

be required to perform at least 50 hours of community service

face up to 12 months in jail, and

be subject to suspension of your driver’s license for up to 12 months

Query: Laws of Virginia driving under the influence of alcohol (top)

Penalty for driving while intoxicated; subsequent offense; prior conviction

Penalty for driving while intoxicated in Virginia; subsequent offense; prior conviction

Court or jury may consider defendant’s prior traffic record before sentencing

Refusal of tests; penalties; procedures

Implied consent to post-arrest testing to determine drug or alcohol content of blood

Presumptions from alcohol or drug content of blood

Transmission of blood test samples; use as evidence

Forfeiture of driver’s license for driving while intoxicated

Administrative suspension of license or privilege to operate a motor vehicle

Refusal of tests; issuance of out-of-service orders; disqualification

A person who has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath in Virginia as indicated by a chemical test administered is under the influence of alcohol,

VA Code § 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction (top)

Offense

Sentence of confinement

Mandatory minimum confinement

Mandatory minimum fine

1st DUI in Virginia

Class 1 misdemeanor

BAC 0.15 – 0.20

Five days

$250

BAC More than 0.20

10 days

2nd DUI

within less

than 5 years

Not less than 1 month nor more than 1 year

Twenty days

BAC 0.15 – 0.20 additional period of 10 days

$500

BAC More than 0.20

Additional period of 20 days

2nd DUI in Virginia

within 5- 10

For not less than one month

Ten days

BAC 0.15 – 0.20 additional period of 10 days

$500,

BAC More than 0.20

Additional period of 20 days

Class 6 felony

3rd DUI in Virginia

committed

within 10 years

90 days

3rd DUI in Virginia

Committed

within 5-years

6 months

$1,000

4th or

subsequent DUI in Virginia offense within 10-

years

otherwise modified by the court, shall remain on probation and under the terms of any suspended sentence for the same period as his operator’s license was suspended, not to exceed 3 years.

one year

$1,000

VA Code § 18.2-270. Penalty for driving while intoxicated in Virginia; subsequent offense; prior conviction (top)

Except as otherwise provided herein, any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $250. If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, if the level was more than 0.20, for an additional mandatory minimum period of 10 days.
B. 1. Any person convicted of a second offense committed within less than five years after a first offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence.
2. Any person convicted of a second offense committed within a period of five to 10 years of a first offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500, and by confinement in jail for not less than one month . Ten days of such confinement shall be a mandatory minimum sentence.
3. Upon conviction of a second offense within 10 years of a first offense, if the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days or, if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $500.
C. 1. Any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000.
2. The punishment of any person convicted of a fourth or subsequent offense of § 18.2-266 committed within a 10-year period shall, upon conviction, include a mandatory minimum term of imprisonment of one year. In addition, such person shall be fined a mandatory minimum fine of $1,000. Unless otherwise modified by the court, the defendant shall remain on probation and under the terms of any suspended sentence for the same period as his operator’s license was suspended, not to exceed three years.
3. The vehicle solely owned and operated by the accused during the commission of a felony violation of § 18.2-266 shall be subject to seizure and forfeiture. After an arrest for a felony violation of § 18.2-266, the Commonwealth may file an information in accordance with § 19.2-386.1. If the information is filed, the Commonwealth shall notify the Commissioner of the Department of Motor Vehicles that the property is subject to seizure. The Commissioner shall act upon such notification pursuant to the provisions for certification and notice applicable to a seizure under § 19.2-375, except that the Commissioner shall serve the written notice of the seizure upon the registered owner and lienor in accordance with the requirements of § 8.01- 296. Any seizure shall be stayed until conviction and the exhaustion of all appeals at which time, if the information has been filed, the Commonwealth shall immediately commence seizure of the property in accordance with § 19.2-386.2.
D. In addition to the penalty otherwise authorized by this section or § 16.1-278.9, any person convicted of a violation of§ 18.2-266 committed while transporting a person 17 years of age or younger shall be (i) fined an additional minimum of $500 and not more than $1,000 and (ii) sentenced to a mandatory minimum period of confinement of five days.
E. For the purpose of this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of § 18.2-266: (i) the provisions of § 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of §§ 18.2-51.4, 18.2-266, former § 18.1-54 (formerly § 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of § 18.2-51.4, or § 18.2-266, or (iii) the provisions of subsection A of § 46.2-341.24 or the substantially similar laws of any other state or of the United States.

VA Code § 46.2-943. Court or jury may consider defendant’s prior traffic record before sentencing (top)

The term “traffic offense” when used in this section shall mean any moving traffic violation described or enumerated in subdivisions 1 and 2 of § 46.2- 382, whether such violation was committed within or outside the Commonwealth according to the records of the Department of Motor Vehicles.
The term “prior traffic record” when used in this section shall mean the record of prior suspensions and revocations of a driver’s license, and the record of prior convictions of traffic offenses described in the foregoing provisions of this section.
When any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sentence as provided by law. After the prior traffic record of the defendant has been introduced, the defendant shall be afforded an opportunity to present evidence limited to showing the nature of his prior convictions, suspensions, and revocations.

VA Code § 18.2-268.3. Refusal of tests; penalties; procedures (top)

A. It shall be unlawful for a person who is arrested for a violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood as required by § 18.2-268.2 and any person who so unreasonably refuses is guilty of a violation of this section.
B. When a person is arrested for a violation of § 18.2-51.4, 18.2-266, 18.2-266.1 or, subsection B of § 18.2-272 or of a similar ordinance and such person refuses to permit blood or breath or both blood and breath samples to be taken for testing as required by § 18.2-268.2, the arresting officer shall advise the person, from a form provided by the Office of the Executive Secretary of the Supreme Court, that (i) a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) the criminal penalty for unreasonable refusal within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal is a Class 2 misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor. The form from which the arresting officer shall advise the person arrested shall contain a brief statement of the law requiring the taking of blood or breath samples, a statement that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and the penalties for refusal.
C. The arresting officer shall, under oath before the magistrate, execute the form and certify, (i) that the defendant has refused to permit blood or breath or both blood and breath samples to be taken for testing; (ii) that the officer has read the portion of the form described in subsection B to the arrested person; (iii) that the arrested person, after having had the portion of the form described in subsection B read to him, has refused to permit such sample or samples to be taken; and (iv) how many, if any, violations of this section, § 18.2-266, or any offense described in subsection E of § 18.2- 270 the arrested person has been convicted of within the last 10 years. Such sworn certification shall constitute probable cause for the magistrate to issue a warrant or summons charging the person with unreasonable refusal. The magistrate shall attach the executed and sworn advisement form to the warrant or summons. The warrant or summons for a first offense under this section shall be executed in the same manner as a criminal warrant or summons. If the person arrested has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer may read the advisement form to the person at the medical facility, and issue, on the premises of the medical facility, a summons for a violation of this section in lieu of securing a warrant or summons from the magistrate. The magistrate or arresting officer, as the case may be, shall forward the executed advisement form and warrant or summons to the appropriate court.
D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant’s privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant’s privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

VA Code § 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood (top)

A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.
B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2- 266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

VA Code § 18.2-269. Presumptions from alcohol or drug content of blood (top)

A. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 18.2-266, or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused’s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
(1) If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused’s blood or 0.05 grams or less per 210 liters of the accused’s breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
(2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused’s blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused’s breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
(3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or
(4) If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4- methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.
B. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of § 46.2-341.24.

VA Code§ 18.2-268.7. Transmission of blood test samples; use as evidence (top)

A. Upon receipt of a blood sample forwarded to the Department for analysis pursuant to § 18.2-268.6, the Department shall have it examined for its alcohol or drug or both alcohol and drug content and the Director shall execute a certificate of analysis indicating the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered with; a statement that the container and vial were provided or approved by the Department and that the vial was one to which the completed withdrawal certificate was attached; and a statement of the sample’s alcohol or drug or both alcohol and drug content. The Director shall remove the withdrawal certificate from the vial, attach it to the certificate of analysis and state in the certificate of analysis that it was so removed and attached. The certificate of analysis with the withdrawal certificate shall be returned to the clerk of the court in which the charge will be heard. After completion of the analysis, the Department shall preserve the remainder of the blood until 90 days have lapsed from the date the blood was drawn. During this 90-day period, the accused may, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. The Department shall destroy the remainder of the blood sample if no notice of a motion to transmit the remaining blood sample is received during the 90-day period.
B. When a blood sample taken in accordance with the provisions of §§ 18.2- 268.2 through 18.2-268.6 is forwarded for analysis to the Department, a report of the test results shall be filed in that office. Upon proper identification of the certificate of withdrawal, the certificate of analysis, with the withdrawal certificate attached, shall, when attested by the Director, be admissible in any court, in any criminal or civil proceeding, as evidence of the facts therein stated and of the results of such analysis. On motion of the accused, the report of analysis prepared for the remaining blood sample shall be admissible in evidence provided the report is duly attested by a person performing such analysis and the independent laboratory that performed the analysis is accredited or certified to conduct forensic blood alcohol/drug testing by one or more of the following bodies: American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB); College of American Pathologists (CAP); United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA); or American Board of Forensic Toxicology (ABFT).
Upon request of the person whose blood was analyzed, the test results shall be made available to him.
The Director may delegate or assign these duties to an employee of the Department.

VA Code § 18.2-271. Forfeiture of driver’s license for driving while intoxicated (top)

A. Except as provided in § 18.2-271.1, the judgment of conviction if for a first offense under § 18.2-266 or for a similar offense under any county, city, or town ordinance, or for a first offense under subsection A of § 46.2-341.24, shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth for a period of one year from the date of such judgment. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2.
B. If a person (i) is tried on a process alleging a second offense of violating § 18.2-266 or subsection A of § 46.2-341.24, or any substantially similar local ordinance, or law of any other jurisdiction, within ten years of a first offense for which the person was convicted, or found guilty in the case of a juvenile, under § 18.2-266 or subsection A of § 46.2-341.24 or any valid local ordinance or any law of any other jurisdiction substantially similar to § 18.2-266 or subsection A of § 46.2-341.24 and (ii) is convicted thereof, such conviction shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth for a period of three years from the date of the judgment of conviction and such person shall have his license revoked as provided in subsection A of § 46.2-391. The court trying such case shall order the surrender of the person’s driver’s license, to be disposed of in accordance with § 46.2-398, and shall notify such person that his license has been revoked for a period of three years and that the penalty for violating that revocation is as set out in § 46.2-391. This suspension period shall be in addition to the suspension period provided under § 46.2- 391.2. Any period of license suspension or revocation imposed pursuant to this section, in any case, shall run consecutively with any period of suspension for failure to permit a blood or breath sample to be taken as required by §§ 18.2-268.1 through 18.2-268.12 or §§ 46.2-341.26:1 through 46.2- 341.26:11.
C. If a person (i) is tried on a process alleging a third or subsequent offense of violating § 18.2-266 or subsection A of § 46.2-341.24, or any substantially similar local ordinance, or law of any other jurisdiction, within ten years of two other offenses for which the person was convicted, or found not innocent in the case of a juvenile, under § 18.2-266 or subsection A of § 46.2-341.24 or any valid local ordinance or any law of any other jurisdiction substantially similar to § 18.2-266 or subsection A of § 46.2-341.24 and (ii) is convicted thereof, such conviction shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth and such person shall not be eligible for participation in a program pursuant to § 18.2-271.1 and shall, upon such conviction, have his license revoked as provided in subsection B of § 46.2-391. The court trying such case shall order the surrender of the person’s driver’s license, to be disposed of in accordance with § 46.2-398, and shall notify such person that his license has been revoked indefinitely and that the penalty for violating that revocation is as set out in § 46.2-391.
D. Not withstanding any other provision of this section, the period of license revocation or suspension shall not begin to expire until the person convicted has surrendered his license to the court or to the Department of Motor Vehicles.
E. The provisions of this section shall not apply to, and shall have no effect upon, any disqualification from operating a commercial motor vehicle imposed under the provisions of the Commercial Driver’s License Act (§ 46.2-341.1 et seq.).

VA Code § 46.2-391.2. Administrative suspension of license or privilege to operate a motor vehicle (top)

A. If a breath test is taken pursuant to § 18.2-268.2 or any similar ordinance and (i) the results show a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath, or (ii) the results, for persons under 21 years of age, show a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath or (iii) the person refuses to submit to the breath test in violation of § 18.2-268.3 or any similar ordinance, and upon issuance of a petition or summons, or upon issuance of a warrant by the magistrate, for a violation of § 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar ordinance, or upon the issuance of a warrant or summons by the magistrate or by the arresting officer at a medical facility for a violation of § 18.2-268.3, or any similar ordinance, the person’s license shall be suspended immediately or in the case of (i) an unlicensed person, (ii) a person whose license is otherwise suspended or revoked, or (iii) a person whose driver’s license is from a jurisdiction other than the Commonwealth, such person’s privilege to operate a motor vehicle in the Commonwealth shall be suspended immediately. The period of suspension of the person’s license or privilege to drive shall be seven days, unless the petition, summons or warrant issued charges the person with a second or subsequent offense. If the person is charged with a second offense the suspension shall be for 60 days. If not already expired, the period of suspension shall expire on the day and time of trial of the offense charged on the petition, summons or warrant, except that it shall not so expire during the first seven days of the suspension. If the person is charged with a third or subsequent offense, the suspension shall be until the day and time of trial of the offense charged on the petition, summons or warrant.
A law-enforcement officer, acting on behalf of the Commonwealth, shall serve a notice of suspension personally on the arrested person. When notice is served, the arresting officer shall promptly take possession of any driver’s license held by the person and issued by the Commonwealth and shall promptly deliver it to the magistrate. Any driver’s license taken into possession under this section shall be forwarded promptly by the magistrate to the clerk of the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made together with any petition, summons or warrant, the results of the breath test, if any, and the report required by subsection B. A copy of the notice of suspension shall be forwarded forthwith to both (a) the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made and (b) the Commissioner. Transmission of this information may be made by electronic means.
The clerk shall promptly return the suspended license to the person at the expiration of the suspension. Whenever a suspended license is to be returned under this section or § 46.2-391.4, the person may elect to have the license returned in person at the clerk’s office or by mail to the address on the person’s license or to such other address as he may request.
B. Promptly after arrest and service of the notice of suspension, the arresting officer shall forward to the magistrate a sworn report of the arrest that shall include (i) information which adequately identifies the person arrested and (ii) a statement setting forth the arresting officer’s grounds for belief that the person violated § 18.2-51.4, 18.2-266, or 18.2-266.1, or a similar ordinance or refused to submit to a breath test in violation of § 18.2-268.3 or a similar ordinance. The report required by this subsection shall be submitted on forms supplied by the Supreme Court.
C. Any person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period of the suspension, request the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made to review that suspension. The court shall review the suspension within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition, the court shall rescind the suspension, or that portion of it that exceeds seven days if there was not probable cause to charge a second offense or 60 days if there was not probable cause to charge a third or subsequent offense, and the clerk of the court shall forthwith, or at the expiration of the reduced suspension time, (i) return the suspended license, if any, to the person unless the license has been otherwise suspended or revoked, (ii) deliver to the person a notice that the suspension under § 46.2-391.2 has been rescinded or reduced, and (iii) forward to the Commissioner a copy of the notice that the suspension under § 46.2-391.2 has been rescinded or reduced. Otherwise, the court shall affirm the suspension. If the person requesting the review fails to appear without just cause, his right to review shall be waived.
The court’s findings are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.
D. If a person whose license or privilege to operate a motor vehicle is suspended under subsection A is convicted under § 18.2-36.1, 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar ordinance during the suspension imposed by subsection A, and if the court decides to issue the person a restricted permit under subsection E of § 18.2-271.1, such restricted permit shall not be issued to the person before the expiration of the first seven days of the suspension imposed under subsection A.

§ 46.2-341.26:3. Refusal of tests; issuance of out-of-service orders; disqualification (top)

A. If a person arrested for a violation of § 46.2-341.24 or § 46.2- 341.31, after having been advised by a law-enforcement officer (i) that a person who operates a commercial motor vehicle on a public highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood or breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and (iii) that the unreasonable refusal to do so constitutes grounds for the issuance of an out-of-service order and for the disqualification of such person from operating a commercial motor vehicle, then refuses to permit blood or breath samples to be taken for such tests, the law-enforcement officer shall take the person before a magistrate. If he again refuses after having been further advised by the magistrate (i) of the law requiring blood or breath samples to be taken, (ii) that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and (iii) the sanctions for refusal, and declares again his refusal in writing on a form provided by the Supreme Court, or refuses or fails to so declare in writing and such fact is certified as prescribed below, then no blood or breath samples shall be taken even though he may later request them.
B. The form shall contain a brief statement of the law requiring the taking of blood or breath samples, that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and the sanctions for refusal; a declaration of refusal; and lines for the signature of the person from whom the blood or breath sample is sought, the date, and the signature of a witness to the signing. If the person refuses or fails to execute the declaration, the magistrate shall certify such fact and that the magistrate advised the person that a refusal to permit a blood or breath sample to be taken, if found to be unreasonable, constitutes grounds for immediate issuance of an out-of-service order prohibiting him from driving a commercial vehicle for a period of twenty-four hours, and for the disqualification of such person from operating a commercial motor vehicle.
C. If the magistrate finds that there was probable cause to believe the refusal was unreasonable, he shall immediately issue an out-of-service order prohibiting the person from operating a commercial motor vehicle for a period of twenty-four hours and shall issue a warrant or summons charging such person with a violation of § 46.2-341.26:2. The warrant or summons shall be executed in the same manner as criminal warrants. Venue for the trial of the warrant or summons shall lie in the court of the county or city in which the criminal offense is to be tried.
D. The executed declaration of refusal or the certificate of the magistrate, as the case may be, shall be attached to the warrant and shall be forwarded by the magistrate to the court.
E. Then the court receives the declaration or certificate together with the warrant or summons charging refusal, the court shall fix a date for the trial of the warrant or summons, at such time as the court designates.
F. The declaration of refusal or certificate under § 46.2-341.26:3 shall be prima facie evidence that the defendant refused to allow a blood or breath sample to be taken to determine the alcohol or drug content of his blood. However, this shall not prohibit the defendant from introducing on his behalf evidence of the basis for his refusal. The court shall determine the reasonableness of such refusal.

The Virginia attorneys and Law Offices of SRIS, P.C., is located in Fairfax, Lynchburg, Manassas, Richmond and Virginia Beach but our sphere of activity is statewide.

Our Virginia DUI lawyers & DWI attorneys and staff speak various languages, including English, Tamil, Spanish, French, Arabic, Hindi, Cantonese, Mandarin, and Telugu.

For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form

We Are a Designated Debt Relief Agency under Federal Law. We Provide Legal Assistance to Consumers Seeking Relief Under the Bankruptcy Code.

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VIRGINIA SEX OFFENSE DEFENSE ATTORNEYS

DEFEND SEX CRIMES IN VIRGINIA

Welcome to the Virginia Sex Crimes Information Center, sponsored by SRIS, P.C. A Virginia law firm with offices in Fairfax, Fredericksburg, Lynchburg, Manassas, Richmond, Virginia Beach, Virginia, that concentrates on Virginia sex offenses. If you wish to consult a SRIS, P.C. sex offense attorney, please simply contact us via e-mail, phone, or by filling out our on-line form. A sex crimes lawyer of SRIS, P.C. will gladly consult with you regarding your matter.

To obtain a general overview of sex crime defense, please click here

To learn more about the laws pertaining to sex crime defense in Maryland or Massachusetts, please click on the state.

The following are some of the different offenses that Virginia categorizes as sex offenses:

• Fornication
• Lewd and lascivious cohabitation
• Crimes against nature; penalty
• Adultery defined; penalty
• Taking indecent liberties with children; penalties
• Indecent liberties by children; penalty
• Taking indecent liberties with child by person in custodial or supervisory relationship; penalties
• Causing or encouraging acts rendering children delinquent, abused, etc.; penalty; abandoned infant
• Production, publication, sale, possession, etc., of obscene items
• Production, publication, sale, possession with intent to distribute, financing, etc., of sexually explicit items involving children; presumption as to age; severability
• Possession of child pornography; penalty
• Use of communications systems to facilitate certain offenses involving children
• Enhanced penalties for using a computer in certain violations

VA Code § 18.2-344. Fornication (top)

Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.

VA Code § 18.2-345. Lewd and lascivious cohabitation (top)

If any persons, not married to each other, lewdly and lasciviously associate and cohabit together, or, whether married or not, be guilty of open and gross lewdness and lasciviousness, each of them shall be guilty of a Class 3 misdemeanor; and upon a repetition of the offense, and conviction thereof, each of them shall be guilty of a Class 1 misdemeanor.

VA Code § 18.2-361. Crimes against nature; penalty (top)

A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.
B. Any person who performs or causes to be performed cunnilingus, fellatio, anilingus or anal intercourse upon or by his daughter or granddaughter, son or grandson, brother or sister, or father or mother is guilty of a Class 5 felony. However, if a parent or grandparent commits any such act with his child or grandchild and such child or grandchild is at least 13 but less than 18 years of age at the time of the offense, such parent or grandparent is guilty of a Class 3 felony.
C. For the purposes of this section, parent includes step-parent, grandparent includes step-grandparent, child includes step-child and grandchild includes step-grandchild.

VA Code § 18.2-365. Adultery defined; penalty (top)

Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.

VA Code § 18.2-370. Taking indecent liberties with children; penalties (top)

A. Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony:
(1) Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; or
(2) Repealed.
(3) Propose that any such child feel or fondle the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; or
(4) Propose to such child the performance of an act of sexual intercourse or any act constituting an offense under§ 18.2-361; or
(5) Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this section.
B. Any person 18 years of age or over who, with lascivious intent, knowingly and intentionally receives money, property, or any other remuneration for allowing, encouraging, or enticing any person under the age of 18 years to perform in or be a subject of sexually explicit visual material as defined in§ 18.2-374.1 or who knowingly encourages such person to perform in or be a subject of sexually explicit material; shall be guilty of a Class 5 felony.
C. Any person who is convicted of a second or subsequent violation of this section shall be guilty of a Class 4 felony; provided that (i) the offenses were not part of a common act, transaction or scheme; (ii) the accused was at liberty as defined in§ 53.1-151 between each conviction; and (iii) it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this section.
D. Any parent, step-parent, grandparent or step-grandparent who commits a violation of either this section or clause (v) or (vi) of subsection A of § 18.2-370.1 (i) upon his child, step-child, grandchild or step-grandchild who is at least 15 but less than 18 years of age is guilty of a Class 5 felony or (ii) upon his child, step-child, grandchild or step-grandchild less than 15 years of age is guilty of a Class 4 felony.

VA Code § 18.2-370.01. Indecent liberties by children; penalty (top)

Any child over the age of thirteen years but under the age of eighteen who, with lascivious intent, knowingly and intentionally exposes his or her sexual or genital parts to any other child under the age of fourteen years who, measured by actual dates of birth, is five or more years the accused’s junior, or proposes that any such child expose his or her sexual or genital parts to such person, shall be guilty of a Class 1 misdemeanor.

VA Code § 18.2-370.1. Taking indecent liberties with child by person in custodial or supervisory relationship; penalties (top)

A. Any person 18 years of age or older who, except as provided in§ 18.2- 370, maintains a custodial or supervisory relationship over a child under the age of 18 and is not legally married to such child and such child is not emancipated who, with lascivious intent, knowingly and intentionally (i) proposes that any such child feel or fondle the sexual or genital parts of such person or that such person feel or handle the sexual or genital parts of the child; or (ii) proposes to such child the performance of an act of sexual intercourse or any act constituting an offense under§ 18.2-361; or (iii) exposes his or her sexual or genital parts to such child; or (iv) proposes that any such child expose his or her sexual or genital parts to such person; or (v) proposes to the child that the child engage in sexual intercourse, sodomy or fondling of sexual or genital parts with another person; or (vi) sexually abuses the child as defined in§ 18.2-67.10 (6), shall be guilty of a Class 6 felony.
B. Any person who is convicted of a second or subsequent violation of this section shall be guilty of a Class 5 felony; provided that (i) the offenses were not part of a common act, transaction or scheme; (ii) the accused was at liberty as defined in§ 53.1-151 between each conviction; and (iii) it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this section.

VA Code § 18.2-371. Causing or encouraging acts rendering children delinquent, abused, etc.; penalty; abandoned infant (top)

Any person 18 years of age or older, including the parent of any child, who (i) willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in§ 16.1-228, or (ii) engages in consensual sexual intercourse with a child 15 or older not his spouse, child, or grandchild, shall be guilty of a Class 1 misdemeanor. This section shall not be construed as repealing, modifying, or in any way affecting§§ 18.2- 18,18.2-19,18.2-61,18.2-63,18.2-66, and 18.2-347.
If the prosecution under this section is based solely on the accused parent having left the child at a hospital or rescue squad, it shall be an affirmative defense to prosecution of a parent under this section that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended rescue squad that employs emergency medical technicians, within the first 14 days of the child’s life.

VA Code § 18.2-374. Production, publication, sale, possession, etc., of obscene items (top)

It shall be unlawful for any person knowingly to:
(1) Prepare any obscene item for the purposes of sale or distribution; or
(2) Print, copy, manufacture, produce, or reproduce any obscene item for purposes of sale or distribution; or
(3) Publish, sell, rent, lend, transport in intrastate commerce, or distribute or exhibit any obscene item, or offer to do any of these things; or
(4) Have in his possession with intent to sell, rent, lend, transport, or distribute any obscene item. Possession in public or in a public place of any obscene item as defined in this article shall be deemed prima facie evidence of a violation of this section.
For the purposes of this section, “distribute” shall mean delivery in person, by mail, messenger or by any other means by which obscene items as defined in this article may pass from one person, firm or corporation to another.

VA Code § 18.2-374.1. Production, publication, sale, possession with intent to distribute, financing, etc., of sexually explicit items involving children; presumption as to age; severability (top)

A. For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term “sexually explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in§ 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in§ 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.
B. A person shall be guilty of a Class 5 felony who:
1. Accosts, entices or solicits a person less than eighteen years of age with intent to induce or force such person to perform in or be a subject of sexually explicit visual material; or
2. Produces or makes or attempts or prepares to produce or make sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age; or
3. Who knowingly takes part in or participates in the filming, photographing or other reproduction of sexually explicit visual material by any means, including but not limited to computer-generated reproduction, which utilizes or has as a subject a person less than eighteen years of age; or
4. Sells, gives away, distributes, electronically transmits, displays with lascivious intent, purchases, or possesses with intent to sell, give away, distribute, transmit or display with lascivious intent sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age.
5. [Repealed.]
B1. [Repealed.]
C. A person shall be guilty of a Class 4 felony who knowingly finances or attempts or prepares to finance sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age.
D. For the purposes of this section a person who is depicted as or presents the appearance of being less than eighteen years of age in sexually explicit visual material is prima facie presumed to be less than eighteen years of age.
E. The provisions of this section shall be severable and, if any of its provisions shall be held unconstitutional by a court of competent jurisdiction, then the decision of such court shall not affect or impair any of the remaining provisions.

VA Code § 18.2-374.1:1. Possession of child pornography; penalty (top)

A. Any person who knowingly possesses any sexually explicit visual material utilizing or having as a subject a person less than 18 years of age shall be guilty of a Class 6 felony. However, no prosecution for possession of material prohibited by this section shall lie where the prohibited material comes into the possession of the person charged from a law-enforcement officer or law-enforcement agency.
B. The provisions of this section shall not apply to any such material which is possessed for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial or other proper purpose by a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, attorney, judge, or other person having a proper interest in the material.
C. All sexually explicit visual material which utilizes or has as a subject a person less than 18 years of age shall be subject to lawful seizure and forfeiture pursuant to§ 19.2-386.31.
D. Any person convicted of a second or subsequent offense under this section shall be guilty of a Class 5 felony.

VA Code § 18.2-374.3. Use of communications systems to facilitate certain offenses involving children (top)

A. It shall be unlawful for any person to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means for the purposes of procuring or promoting the use of a minor for any activity in violation of§ 18.2-370 or§ 18.2- 374.1. A violation of this subsection is a Class 6 felony.
B. It shall be unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting any person he knows or has reason to believe is a child less than 18 years of age for (i) any activity in violation of§ 18.2-355 or§ 18.2- 361, (ii) any activity in violation of§ 18.2-374.1, (iii) a violation of§ 18.2-374.1:1, or (iv) any activity in violation of subsection A of § 18.2-370. As used in this subsection, “use a communications system” means making personal contact or direct contact through any agent or agency, any print medium, the United States mail, any common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications system. A violation of this subsection is a Class 5 felony.

VA Code § 18.2-376.1. Enhanced penalties for using a computer in certain violations (top)

Any person who uses a computer in connection with a violation of§§ 18.2- 374,18.2-375, or§ 18.2-376 is guilty of a separate and distinct Class 1 misdemeanor, and for a second or subsequent such offense within 10 years of a prior such offense is guilty of a Class 6 felony, the penalties to be imposed in addition to any other punishment otherwise prescribed for a violation of any of those sections.

The Virginia sex crimes attorneys and Law Offices of SRIS, P.C., is located in Fairfax, Lynchburg, Manassas, Richmond, and Virginia Beach but our sphere of activity is statewide.

Our Virginia sex offense attorneys and staff speak various languages, including English, Tamil, Spanish, French, Arabic, Hindi, Cantonese, Mandarin, and Telugu.

For more information or to make an appointment with SRIS, P.C.Virginia sex crimes defense lawyer, please call, send an e-mail or complete the on-line form.

We Are a Designated Debt Relief Agency under Federal Law. We Provide Legal Assistance to Consumers Seeking Relief Under the Bankruptcy Code.

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VIRGINIA TRAFFIC & SPEEDING TICKET DEFENSE

DEFENSE OF VIRGINIA SPEEDING TICKETS & MOVING VIOLATIONS

A Virginia traffic lawyer can help you prevent a traffic or speeding ticket offense in Virginia from seriously impacting your insurance rates and driving privileges.  Convictions for “petty” violations such as a Virginia speeding ticket, illegal lane change, failure to yield or following too closely are moving violations. These VA traffic tickets are punishable by fine only, but can have unforeseen implications to those who are not aware of the Virginia Division of Motor Vehicle (DMV) rules. A speeding ticket for speeding in a designated Residential Zone or Construction Zone in Virginia carries an enhanced mandatory fine for even the first offense. It is more important than ever to retain the very best Virginia traffic lawyers. The  SRIS, P.C. traffic & speeding ticket defense attorneys in Virginia have offices located in Fairfax, Lynchburg, Fredericksburg, Manassas, Richmond and Virginia Beach but our sphere of activity is statewide.

Our Virginia traffic defense attorneys and staff speak various languages, including English, Tamil, Spanish, French, Hindi, Cantonese, Mandarin, and Telugu. For more information or to make an appointment with SRIS, P.C. Virginia traffic lawyer in Northern Virginia, Central Virginia, Western Virginia or Hampton Roads/Tidewater Area, please call, send an e-mail or complete the on-line form.

To obtain a general overview of traffic & speeding ticket laws, please click here

To learn more about the laws pertaining to traffic laws in Maryland or Massachusetts, please click on the state.

Our Virginia traffic lawyers can help clients avoid the following pitfalls throughout Virginia:

• Any conviction for a Virginia moving violation can raise your car insurance rates.

• Multiple convictions for Virginia traffic violations may result in a suspended driver’s license or revoked license.

• Traffic school for dismissal (a way of avoiding conviction) is not available in some counties.  This is especially true in Fairfax County and many of the other counties in Northern Virginia, the Richmond Metro area, Central Virginia & Western Virginia, and you’ll need a skilled and knowledgeable Virginia traffic lawyer to try and get the charge amended to a no point violation or traffic school for dismissal. Only the prosecutor has that authority.

• An improper defense of a Virginia moving violation for accidents can result in making you an easy target for a civil lawsuit.

• Virginia traffic tickets and other local municipal moving violations may be written based on local ordinances that can still affect your state driving privileges and insurance.

SO WHAT CAN A SRIS, P.C. VIRGINIA TRAFFIC DEFENSE LAWYER DO FOR ME?

Our Virginia traffic lawyers can analyze your case to determine if trial is appropriate and when it is not risk worthy.  The SRIS, P.C. Virginia traffic attorneys will review your case to determine if the traffic stop was legal in the first place and file the necessary motions to have the traffic charge dismissed if we determine the traffic stop was invalid.  Our traffic defense attorneys in Virginia will work hard to obtain the best possible deal to protect your driving privileges and limit your risk. The Virginia traffic defense lawyers know and understand that in many traffic ticket matters where the person charged does not have to appear in court, it is easier to pre-pay the ticket than take time off of work or school to go to court and plead not guilty. The Virginia traffic lawyers of SRIS, P.C. can arrange for you to not even have to appear. The SRIS, P.C. traffic violation attorneys routinely defend Virginia moving violations this way for their clients both in state and out of state and plea bargain Virginia traffic & speeding ticket violations to lower violations, no point violations or traffic school for dismissal. When you talk to a SRIS, P.C. Virginia traffic lawyer, he/she will advise you at that time if they can do the same for you. In most cases, for most drivers, conviction and even traffic safety school can be avoided.

Virginia traffic violations can have serious criminal consequences.

Although people don’t think of traffic violations in Virginia as crimes, charges such as reckless driving, driving on suspended license, etc. can have serious criminal consequences. These Virginia traffic offenses are crimes and are deemed to be class 1 misdemeanors, resulting in up to 12 months in jail and or up to a $2500 fine. Your license may also be suspended when you receive several minor tickets or, in some cases, one serious violation.

A conviction of a traffic violation in Virginia, such as reckless driving, speeding, or driving on a suspended license will result in fines. It could also affect your driving record as well as increase your insurance rates. The Virginia traffic defense attorneys of SRIS, P.C., have the experience you need to prevent that from happening.

The Virginia traffic lawyers of SRIS, P.C. assist its clients with a variety of traffic violations, including: driving without a license, driving with a suspended license, speeding, aggressive driving, as well as reckless and careless driving.

Our Virginia traffic attorneys have experience with difficult cases.

You should know that many rights are available to you regarding Virginia traffic law violations, including the right to question the prosecution’s witnesses in court, even if they are Virginia police officers. The Virginia traffic law lawyers at SRIS, P.C. have the experience you need when you face traffic offense charges.

The following are some of the different types of minor traffic violations that you can be charged with in Virginia:

Virginia Traffic Code § 46.2-820. Right-of-way at uncontrolled intersections, generally

Virginia Traffic Code § 46.2-821. Vehicles before entering certain highways shall stop or yield right-of-way

Virginia Traffic Code § 46.2-822. Right-of-way at traffic circles

Virginia Traffic Code § 46.2-823. Unlawful speed forfeits right-of-way

Virginia Traffic Code § 46.2-825. Left turn traffic to yield right-of-way

Virginia Traffic Code § 46.2-826. Stop before entering public highway or sidewalk from private road, etc.; yielding right-of-way

Virginia Traffic Code § 46.2-829. Approach of law-enforcement or fire-fighting vehicles, rescue vehicles, or ambulances; violation as failure to yield right-of-way

Virginia Traffic Code § 46.2-870. Speeding; generally

Virginia Traffic Code § 46.2-492. Uniform Demerit Point System

A. The Commissioner shall assign point values to those convictions, or findings of not innocent in the case of a juvenile, which are required to be reported to the Department in accordance with § 46.2-383 for Virginia traffic offenses committed in violation of the laws of the Commonwealth or any county, city, or town ordinance paralleling and substantially conforming to state law, provided that no conviction, or finding of not innocent in the case of a juvenile for any offense, relating to registration, insurance, or equipment shall be included except as otherwise provided by this title.

B. The Commissioner shall assign point values to those traffic convictions received from any other state of the United States, the United States, Canada or its provinces, or any territorial subdivision of any of them, of a traffic offense therein, which if committed in Virginia, would be required to be reported to the Department by § 46.2-383.

C. No point assignment shall be made for any Virginia traffic conviction which results from a vehicle having been parked or stopped, in order for the driver to sleep or rest, on the shoulder or other portion of a highway not ordinarily used for vehicular traffic. The court shall make a separate finding on this issue and note such finding on the conviction record.

D. The Uniform Demerit Point System standard for rating convictions of traffic offenses in Virginia shall be based on the severity of the offense and the potential hazardous exposure to other users of the highways and streets. The Commissioner shall designate the point values assigned to convictions, or findings of not innocent in the case of a juvenile, on a graduated scale not to exceed six demerit points for any single conviction. The Commissioner shall develop point system assignments as follows:

1. Serious traffic offenses in Virginia such as driving while intoxicated in violation of § 18.2-266, persons under age twenty-one driving after illegally consuming alcohol in violation of § 18.2-266.1, reckless driving in violation of § 46.2-852, speeding twenty or more miles per hour above the posted speed limit, racing in violation of § 46.2-865, and other serious Virginia traffic offenses as the Commissioner may designate, shall be assigned six demerit points.

2. Relatively serious Virginia traffic offenses such as failure to yield the right–of– way in violation of §§ 46.2-820 through 46.2-823, speeding between ten and nineteen miles per hour above the posted speed limit, following too closely in violation of § 46.2-816, failure to stop when entering a highway in violation of § 46.2-863, aggressive driving in violation of § 46.2-868.1 and other relatively serious Virginia traffic offenses as the Commissioner may designate, shall be assigned four demerit points.

3. Virginia Traffic offenses of a less serious nature such as improper driving in violation of § 46.2-869, speeding between one and nine miles per hour above the posted speed limit, improper passing in violation of § 46.2-838, failure to obey a highway sign in violation of § 46.2-830 and other offenses of a less serious nature as the Commissioner may designate, shall be assigned three demerit points.

E. When a person is convicted of two or more traffic offenses committed on a single occasion, he shall be assessed points for one offense only and if the offenses involved have different point values, he shall be assessed points for the offense having the greater point value.

The Virginia traffic attorneys and Law Offices of SRIS, P.C., are located in Fairfax, Lynchburg, Manassas, Richmond and Virginia Beach but we represent clients charged with moving violations throughout the state of Virginia.

For more information or to make an appointment with a SRIS, P.C. traffic defense lawyer, please call, send an e-mail or complete the on-line form.

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VIRGINIA ASSAULT & BATTERY DEFENSE LAWYERS

DEFENDING CLIENTS CHARGED WITH ASSAULT & BATTERY & DOMESTIC VIOLENCE IN VIRGINIA

In Virginia, the touching of another that is unconsented to is illegal. This is a serious offense that carries life changing consequences. The Virginia law offices of SRIS, P.C. have a number of excellent Virginia assault defense attorneys & battery defense lawyers in its offices in Fairfax, Fredericksburg, Lynchburg, Manassas, Richmond, Virginia Beach, Virginia. For more information or to make an appointment with SRIS, P.C., Virginia attorney who defends clients charged with assault & battery or domestic violence charges in Virginia, please call, send an e-mail or complete the on-line form

There are many different types of assault and battery laws in Virginia. In Virginia, an assault and battery charge is also referred to as an A&B. For example, a person in Virginia can be charged with simple assault and battery, domestic assault and battery (a.k.a. domestic violence or assault on a family member) or felony assault and battery on a police officer. Simply because someone is charged with an offense of assault and battery or domestic violence in Virginia does not mean that they are going to be convicted as charged. The assault or domestic violence charge could be dismissed if the facts are such that the Commonwealth attorney in Virginia decides that they will not prevail at trial or there are some compelling reasons as to why the Virginia Commonwealth attorney should not pursue prosecution of the charge. There are also different plea bargain options available to the client if certain facts are present and the Virginia assault & battery attorney handling the matter is skilled at negotiating a good plea bargain. As always, there is the option of going to trial and proving one’s innocence at trial. However, this option should be considered as a last resort as there are no guarantees as to the outcome of the case at trial, unless one has absolutely no other options available or one is certain as to the outcome of one’s case. Only the client can ultimately decide what is best for them self. A good Virginia criminal lawyer will lay out the different options in a Virginia A&B charge or domestic violence charge and then the client will have to decide how to proceed.

To obtain a general overview of assault and battery or domestic violence, please click here

To learn more about the laws pertaining to assault and battery or domestic violence in Maryland or Massachusetts, please click on the state.

An assault and battery charge and domestic violence offense in Virginia are both class one misdemeanors at the very least. A class one misdemeanor carries up to one year in jail and or up to a $2500 fine. See Virginia Code Section 18.2-11.

The following are some of the different types of assault and battery charges one could face in the Commonwealth of Virginia:

• Assault and battery
• Assault and battery against a family or household member; penalty
• Assault or battery by mob
• Satisfaction and discharge of assault and similar charges

Virginia Code § 18.2-57. Assault and battery (top)

A. Any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person shall be guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer as defined hereinafter, a correctional officer as defined in § 53.1-1, a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department, a firefighter as defined in § 65.2-102, or a volunteer firefighter or lifesaving or rescue squad member who is a member of a bona fide volunteer fire department or volunteer rescue or emergency medical squad regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or members as employees, engaged in the performance of his public duties as such, such person shall be guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

D. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time teacher, principal, assistant principal, or guidance counselor of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he shall be guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to § 18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months.

E. As used in this section:

“Law-enforcement officer” means any full-time or part-time employee of a police department or sheriff’s office which is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth, and any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1- 115, and game wardens appointed pursuant to § 29.1-200, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.

“School security officer” means an individual who is employed by the local school board for the purpose of maintaining order and discipline, preventing crime, investigating violations of school board policies and detaining persons violating the law or school board policies on school property, a school bus or at a school-sponsored activity and who is responsible solely for ensuring the safety, security and welfare of all students, faculty and staff in the assigned school.

F. “Simple assault” or “assault and battery” shall not be construed to include the use of, by any teacher, principal, assistant principal, guidance counselor, or school security officer, in the course and scope of his acting official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a teacher, principal, assistant principal, guidance counselor, or school security officer at the time of the event.

§ 18.2-57.2. Assault and battery against a family or household member; penalty a.k.a domestic violence (top)

A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.

B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, or (v)an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.

C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.

D. The definition of “family or household member” in § 16.1-228 applies to this section.

§ 18.2-42. Assault or battery by mob (top)

Any and every person composing a mob which shall commit a simple assault or battery shall be guilty of a Class 1 misdemeanor.

In the event that you have been charged with a misdemeanor charge of assault and battery, there is a civil remedy available, but can only be applied if certain conditions are met. This is called accord and satisfaction. It is governed by the following statute:

§ 19.2-151. Satisfaction and discharge of assault and similar charges (top)

When a person is in jail or under a recognizance to answer a charge of assault and battery or other misdemeanor, or has been indicted for an assault and battery or other misdemeanor for which there is a remedy by civil action, unless the offense was committed (i) by or upon any law-enforcement officer, (ii) riotously in violation of §§ 18.2-404 to 18.2-407, (iii) against a family or household member in violation of § 18.2-57.2, or (iv) with intent to commit a felony, if the person injured appears before the court which made the commitment or took the recognizance, or before the court in which the indictment is pending, and acknowledges in writing that he has received satisfaction for the injury, the court may, in its discretion, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution, upon payment by the defendant of costs accrued to the Commonwealth or any of its officers.Our Virginia assault & battery & domestic violence lawyers and staff speak various languages, including English, Tamil, Spanish, French, Hindi, Cantonese, Mandarin, and Telugu.

For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form

In the following case, the Court addressed the issue of what constitutes cohabiting under Code § 18.2-57.2 (the domestic violence statute) in Virginia

33 Va.App. 550, 535 S.E.2d 187
Court of Appeals of Virginia,
Salem.
James Edward RICKMAN,
v.
COMMONWEALTH of Virginia.
Record No. 2265-99-3.
Oct. 10, 2000.

Defendant was convicted in the Circuit Court, Roanoke County, Diane McQ. Strickland, J., of assault and battery against a family or household member, as third offense within 10 years, and he appealed. The Court of Appeals, Elder, J., held that: (1) as matter of first impression, factors considered in determining whether defendant and victim were cohabiting, so as to establish victim was “family or household member,” included sharing of familial or financial responsibilities, consortium, and length and continuity of the relationship; and (2) there was sufficient evidence of cohabitation to establish that victim was family or household member.
Affirmed.

Present: COLEMAN, WILLIS and ELDER, JJ.

ELDER, Judge.
James Edward Rickman (appellant) appeals from his bench trial conviction for assault and battery against a family or household member in violation of Code § 18.2-57.2, his third such conviction within ten years, making it punishable as a Class 6 felony. On appeal, appellant contends the evidence was insufficient to establish the woman he was convicted of assaulting and battering was a “family or household member” within the meaning of the statute. We hold the evidence was sufficient to bring appellant’s victim within the statutory definition, and we affirm his conviction.

I.

BACKGROUND

On March 13, 1999, appellant “hit” and “smacked” Yvonne Brickey, “jerked [her] shirt,” and pushed her to the ground.

According to Brickey, appellant was residing with her on the date of the offense, and they had resided together for “a couple months.” Appellant repeatedly told one of the officers who responded to the scene that he and Brickey “had lived together for about three months.” Appellant worked out of town on an intermittent basis and stayed with Brickey “off and on, when [he] would come into town.” Although Brickey testified **189 that appellant sometimes stayed with her and sometimes stayed with his ex-wife, appellant testified that he and his wife were not “living together” during March 1999 and that some of his furniture was in storage. Brickey said she *553 and appellant started living together in this “off and on” fashion “a long time ago.”

Other evidence established that when appellant was in Brickey’s home, she and appellant were “boyfriend and girlfriend,” slept in the same bed and had sexual relations. Although Brickey would not take money appellant offered her for living expenses, appellant bought food and “tried to just help out.” While appellant was at Brickey’s, he stored clothes and other items of personal property there. Brickey’s mother, who lived next door to Brickey, washed appellant’s clothes for him, and appellant used the telephone at Brickey’s mother’s home because Brickey did not have a phone.

Appellant admitted to staying with Brickey “off and on” but said he did not reside there. He considered the trailer he and his wife owned as his residence during that time but admitted he was not actually living there. He said that most of the time he was in town, he stayed with his cousin Wanda, but he admitted that both his wife and Brickey also would come to Wanda’s to stay. He denied having a contemporaneous sexual relationship with Brickey but admitted the March 13 altercation arose because Brickey became jealous when her daughter told her appellant had been out with a younger woman. Appellant said Brickey’s daughter, a minor, became angry with him when he asked her and her friends not to consume alcohol or use illegal drugs in the house.

Appellant moved to strike at the close of the Commonwealth’s evidence and again at the close of all the evidence. In denying the motions, the trial court made the following observations:

It is the finding of this Court that [appellant] was as much a member of the household where Ms. Brickey resides as he was of any household.

… [C]ertainly, the intent of the General Assembly in passing this legislation was to cover circumstances such as this where he was residing [in even an] on again and off again relationship with Ms. Brickey….

*554 The court found, in addition, the evidence was sufficient to prove that appellant assaulted and battered Brickey, a household member, and that he had two previous convictions for the same offense. It convicted him of a Class 6 felony pursuant to Code § 18.2-57.2(B).

II.

ANALYSIS

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). The fact finder is not required to believe all aspects of a witness’ testimony; it may accept some parts as believable and reject other parts as implausible. See Pugliese v. Commonwealth, 16 Va.App. 82, 92, 428 S.E.2d 16, 24 (1993).

The version of Code § 18.2-57.2 applicable to these proceedings provided as follows:

A. Any person who commits an assault and battery against a family or household member shall be guilty of a Class 1 misdemeanor.

B. On a third or subsequent conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that (i) such person has been previously convicted twice of assault and battery against a family or household member … within ten years of the third or subsequent offense, and … (ii) each such assault and battery occurred on different dates, such person shall be guilty of a Class 6 felony.
* * * * * *
D. As used in this section, “family or household member” means … (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the defendant….

*555 Code § 18.2-57.2 (1995 Repl.Vol. (version effective July 1, 1997)) (emphasis added).

What constitutes cohabiting under Code § 18.2-57.2 is a question of first impression in Virginia. “[W]e construe a statute to promote the end for which it was enacted, if such an interpretation can reasonably be made from the language used.” Woolfolk v. Commonwealth, 18 Va.App. 840, 847, 447 S.E.2d 530, 533 (1994). “The plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction.” Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992). “Although penal laws are to be construed strictly [against the Commonwealth], they ‘ought not to be construed so strictly as to defeat the obvious intent of the legislature.’ ” Willis v. Commonwealth, 10 Va.App. 430, 441, 393 S.E.2d 405, 411 (1990) (citation omitted).

Our prior consideration of the meaning of the term “cohabitation” has been limited mainly to the civil arena in the context of divorce and spousal support. Interpreting a property settlement agreement in Schweider v. Schweider, 243 Va. 245, 415 S.E.2d 135 (1992), the Virginia Supreme Court noted that, “[w]hile engaging in sexual relations is a factor in determining cohabitation, ‘ “matrimonial cohabitation” consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship.’ ” Id. at 248, 415 S.E.2d at 137 (quoting Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986)).

We revisited this issue in Frey v. Frey, 14 Va.App. 270, 416 S.E.2d 40 (1992), noting that financial support is “a factor which tends to prove the assumption of duties or obligations attendant to marriage” but that “other factors exclusive of support may be sufficient to establish that a relationship is analogous to marriage.” Id. at 275, 416 S.E.2d at 43. We acknowledged the holding of the Supreme Court in Schweider that phrases such as “cohabitation, analogous to marriage,” have been “consistently interpreted … as encompassing both *556 a permanency or continuity and an assumption of marital duties.” Id.

Appellant contends these principles are applicable to his conviction for domestic assault and battery and preclude a finding that he cohabited with Brickey because the evidence failed to establish the necessary permanence or any other characteristics of a marital relationship or common law marriage. Although we find Schweider and Frey instructive, we disagree that they control our interpretation of Code § 18.2-57.2. While we look to these interpretations for guidance, we are not bound by them because ” ‘cohabitation’ takes on different meanings in different contexts.” State v. Yaden, 118 Ohio App.3d 410, 692 N.E.2d 1097, 1100 (1997); see also Elizabeth Trainor, Annotation, ” Cohabitation” For Purposes of Domestic Violence Statutes, 71 A.L.R.5th 285, 294 (1999). Compare Colley v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630, 632-33 (1963) (under divorce jurisdiction statute, construing “cohabiting” to mean “having dwelled together under the same roof with more or less permanency”), with Tarr v. Tarr, 184 Va. 443, 448, 35 S.E.2d 401, 403-04 (1945) (in assessing what acts amount to condonation of adultery, construing “cohabiting” to mean “single voluntary act of sexual intercourse”).

We also seek guidance from the interpretations other courts have given “cohabitation” in the domestic abuse context. These courts acknowledge the obvious conclusion of their legislatures that “assault involving a family or household member deserves further protection than assault on a stranger.” See, e.g. State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126, 1129 (1997). In Virginia, the legislature also has concluded that assault on a family or household member is more serious than assault on a stranger. See Code §§ 18.2-57, 18.2-57.2.FN1
FN1. Although the first and second offenses of assault and battery of a family or household member are punished as Class 1 misdemeanors in Virginia-the same punishment imposed for assault and battery on a non-family member who does not belong to any other special class-a third offense for assault and battery of a family or household member within ten years is subject to heightened punishment as a Class 6 felony. See Code §§ 18.2-57, 18.2-57.2 .
*557 In surveying the varying definitions of cohabitation in this context, the Ohio Supreme Court noted the prevailing view that “domestic violence arises out of the nature of **191 the relationship itself, rather than the exact living circumstances of the victim and perpetrator.” Williams, 683 N.E.2d at 1129.

[T]he essential elements of “cohabitation” are (1) sharing of familial or financial responsibilities and (2) consortium. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.

Id. at 1130 (citations omitted).

Other factors appropriate for consideration include the length and continuity of the relationship. See, e.g., State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996). Although “a person may have only one legal domicile at one time, … he may have more than one residence” for purposes of a statute proscribing domestic assault. State v. Archuletta, 85 Hawai’i 512, 946 P.2d 620, 622 (Ct.App.1997).

[A] defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods. A defendant who physically abuses a cohabitant cannot immunize himself from criminal liability merely by living part-time elsewhere with one or more other persons while continuing to reside the rest of the time with the first partner and maintaining a substantial relationship with that person.

People v. Moore, 44 Cal.App.4th 1323, 52 Cal.Rptr.2d 256, 264 (1996). The factors to be applied “are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.” *558 Williams, 683 N.E.2d at 1130 (emphasis added); see Kellogg, 542 N.W.2d at 518.

In construing Code § 18.2-57.2 to achieve the obvious intent of the legislature, we apply these same factors to a totality-of-the-circumstances analysis in appellant’s case. Under this analysis, we hold the evidence supports the trial court’s finding that appellant and Brickey cohabited as that term is used in Code § 18.2-57.2. Under the first prong of the Ohio Supreme Court’s test, the sharing of familial or financial responsibilities, the evidence established that appellant desired to contribute money to cover a portion of Brickey’s household expenses and gave her grocery money whenever he stayed at the residence. Brickey’s mother, who lived next door, washed appellant’s laundry and allowed appellant to use her phone. Appellant also felt comfortable enough in Brickey’s home to ask her daughter, a minor, not to consume alcohol or illegal drugs in Brickey’s house.

Under the second prong, consortium, the evidence supported a finding that Brickey and appellant slept in the same bed and had a sexual relationship. Although appellant insisted their relationship was platonic, he admitted they were very close and said they fought because Brickey thought he had been out with a younger woman and became jealous.

Finally, in addressing the duration, continuity and permanency of the relationship, as the holdings in Schweider and Frey suggest we should, see also Kellogg, 542 N.W.2d at 518, the evidence, viewed in the light most favorable to the Commonwealth, supported a finding that appellant had resided with Brickey continuously for three months prior to March 13, 1999 and that he had stayed with her sporadically before that for “a long time,” as well. Although appellant said he remained married to another woman, he reported that some of his furniture was in storage and that he was not living with his wife during that period of time. Based on this evidence, the trial court concluded that appellant “was as much a member of the [victim's] household … as he was of any household” and that this was sufficient to establish cohabitation under *559 Code § 18.2-57.2. We agree and hold the fact that appellant sometimes worked out of town and may periodically have stayed elsewhere when in town did not preclude a finding that he cohabited with Brickey. See Archuletta, 946 P.2d at 622. The evidence supported the trial court’s implicit finding that appellant maintained a “substantial ongoing relationship[**192 ]” with Brickey during this period of time. Moore, 52 Cal.Rptr.2d at 264.

For these reasons, we hold the evidence of cohabitation was sufficient to support appellant’s conviction under Code § 18.2-57.2. Therefore, we affirm the conviction.

Affirmed.

Va.App.,2000.
Rickman v. Com.
33 Va.App. 550, 535 S.E.2d 187

In the following case, the Court of Appeals sets out the elements (definition) for a general assault and battery and the elements for an assault and battery on a police officer.

Court of Appeals of Virginia.

Mary O’CONNELL, s/k/a Mary Kelly O’Connell,
v.
COMMONWEALTH of Virginia.
No. 0286-00-4.
Jan. 30, 2001.

Present FITZPATRICK, Chief J., WILLIS, J., and OVERTON, Senior J.

OVERTON.
*1 Mary O’Connell (appellant) appeals her conviction for assault on a police officer in violation of Code § 18.2-57(C). She argues on appeal that the trial judge erred in giving his response to a jury question. Finding no error, we affirm her conviction.

BACKGROUND

Several police officers investigated a report of a “suspicious” event. When Officer Michael Spillars arrested appellant’s companion for being drunk in public, appellant tried to intervene in the arrest. Spillars then arrested appellant for being drunk in public. As the officers tried to handcuff appellant, she became combative, swung her arms, and tried to avoid their attempts to hold her. While sitting in a police car, appellant struck her head on the barrier in the car, lacerating her head.

At the hospital, appellant had “violent outbursts” and fought medical personnel who attempted to assist her. As Spillars tried to restrain appellant so she could get medical treatment, she attempted to bite him. Appellant also kicked Spillars in the leg. Officer James Nida testified that appellant fought and resisted the arresting officers and that she kicked Spillars while she was in the hospital. Nida testified appellant “attack[ed] the closest person” to her while in the hospital.

Appellant testified she did not remember whether she fought the police officers as they tried to put her in the police car. Appellant acknowledged that the officers were present when she was treated at the hospital. Appellant testified she asked the officers to have the nurse stop hurting her during the treatment. Appellant also testified that, while she was in the hospital, she was trying “to get away from” the medical personnel because they were hurting her with their medical treatment. She stated she did not intend to assault a police officer, and she did not recall kicking an officer.

After the jury deliberated for about twenty minutes, it asked the following question:

Does her striking out in general mitigate the charge of assaulting an officer, or does it have to be deliberate singling out of an officer?

Appellant’s counsel requested that the trial judge respond to the question with “a general answer of ‘[Y]ou’ve been presented with the evidence, you must rely on your collective understanding.’ ” She also asserted that the jury had been instructed on the statute, and it was within the jury’s “purview to determine what exactly that means.”

The trial judge concluded that telling the jurors to rely on their collective recollection of the evidence would not answer the question. The judge stated that “under the language of the statute,” the answer to the first part of the question was “No.” The trial judge found that Code § 18.2-57(C) does not provide for mitigation or require a “deliberate singling out.” He stated, “What the statute requires is the language contained in [Jury Instruction] 1 … that the defendant knew or had reason to know .” The trial judge answered the jury question, “No.”

ANALYSIS

*2 Code § 18.2-57(C) provides in pertinent part:

[I]f any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a law-enforcement officer … engaged in the performance of his public duties as such, such person shall be guilty of a Class 6 felony….

Jury Instruction 1 stated, in pertinent part:

The Court instructs the jury that the defendant is charged with the crime of assault on a police officer. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1) That the defendant inflicted some bodily hurt on Officer Michael Spillars;

(2) That the act was done in an angry, rude, or vengeful manner; and

(3) That the defendant knew or had reason to know that Michael Spillars was a law enforcement officer who was engaged in the performance of his public duties as a law enforcement officer.

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty of assaulting a police officer….

Appellant does not contend that the trial judge improperly instructed the jury on the elements of the offense. Rather, appellant contends the trial judge should have answered the jury’s question by referring it to the jury instructions instead of answering the question “directly.” She contends the trial judge’s answer was “misleading” and “injected an interpretation of” Instruction 1. She also asserts that Code § 18.2-57(C) requires proof of specific intent and that the trial judge’s answer was “legally incorrect” because “striking out in general” is inconsistent with the intent requirement of the statute.

“It is proper for a trial court to fully and completely respond to a jury’s inquiry concerning its duties.” Marlowe v. Commonwealth, 2 Va.App. 619, 625, 347 S.E.2d 167, 171 (1986) (citation omitted). Indeed, it is error not to instruct the jury when the jury may make findings based upon a mistaken belief of the law. See Martin v. Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) ( per curiam ). The trial court must “give a direct and correct response to an inquiry by the jury and its failure to do so is ground for reversal.” Shepperson v. Commonwealth, 19 Va.App. 586, 591, 454 S.E.2d 5, 8 (1995).

Code § 18.2-57(C) does not require proof that the accused “intentionally select[ed]” the victim as does a violation of Code § 18.2-57(A) and Code § 18.2-57(B). FN1 A person violates Code § 18.2-57(C) if she commits an assault or an assault and battery against another person, knowing or having reason to know that the other person is a law enforcement officer engaged in the performance of his public duties. Nothing in the language of the statute indicates a desire by the legislature to mitigate the offense if an officer is accidentally assaulted by the accused “striking out in general.” Accordingly, the trial judge’s response clearly and correctly addressed the jury question. Furthermore, the trial judge did not provide a legally incorrect answer to the jury question or mislead the jury with his answer.
FN1. Code § 18.2-57(A) provides:

Any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a mandatory, minimum term of confinement of at least six months, thirty days of which shall not be suspended, in whole or in part.

Code § 18.2-57(B) provides, in part:

However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person shall be guilty of a Class 6 felony….
*3 For these reasons, appellant’s conviction is affirmed.

Affirmed.

Va.App.,2001.

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VIRGINIA ATTORNEYS DEFENDING DISORDERLY CONDUCT CHARGES

In Virginia, any person in any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is illegal. This is a serious offense that carries life changing consequences. The Virginia law offices of SRIS, P.C. have a number of excellent Virginia Disorderly Conduct defense attorneys in its offices in Fairfax, Fredericksburg, Lynchburg, Manassas, Richmond, Virginia Beach, Virginia. For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form.

To obtain a general overview of disorderly conduct defense, please click here

To learn more about the laws pertaining to disorderly conduct defense in Maryland or Massachusetts, please click on the state.

A disorderly conduct charge is a class 1 misdemeanor. See Virginia Code Section 18.2-11.

The following is what the Virginia Code on disorderly Conduct states:

§ 18.2-415. Disorderly conduct in public places

A person is guilty of disorderly conduct in Virginia if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

A. In any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed; or

B. Willfully or being intoxicated, whether willfully or not, and whether such intoxication results from self-administered alcohol or other drug of whatever nature, disrupts any meeting of the governing body of any political subdivision of this Commonwealth or a division or agency thereof, or of any school, literary society or place of religious worship, if the disruption (I) prevents or interferes with the orderly conduct of the meeting or (ii) has a direct tendency to cause acts of violence by the person or persons at whom, individually, the disruption is directed; or

C. Willfully or while intoxicated, whether willfully or not, and whether such intoxication results from self-administered alcohol or other drug of whatever nature, disrupts the operation of any school or any activity conducted or sponsored by any school, if the disruption (I) prevents or interferes with the orderly conduct of the operation or activity or (ii) has a direct tendency to cause acts of violence by the person or persons at whom, individually, the disruption is directed.

However, the conduct prohibited under subdivision A, B or C of this section shall not be deemed to include the utterance or display of any words or to include conduct otherwise made punishable under this title.

The person in charge of any such building, place, conveyance, meeting, operation or activity may eject there from any person who violates any provision of this section, with the aid, if necessary, of any persons who may be called upon for such purpose.

The governing bodies of counties, cities and towns are authorized to adopt ordinances prohibiting and punishing the acts and conduct prohibited by this section, provided that the punishment fixed therefore shall not exceed that prescribed for a Class 1 misdemeanor. A person violating any provision of this section shall be guilty of a Class 1 misdemeanor.

The Virginia attorneys and Law Offices of SRIS, P.C., is located in Fairfax, Manassas, Richmond, and Virginia Beach .

Our Virginia Disorderly Conduct Defense Attorneys and staff speak various languages, including English, Tamil, Spanish, French, Arabic, Hindi, Cantonese, Mandarin, and Telugu.

For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form.

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VIRGINIA DRUG POSSESSION DEFENSE LAWYERS

DEFENDING DRUG CHARGES IN VIRGINIA STATE & VIRGINIA FEDERAL COURTS

In Virginia, the illicit possession of controlled substance is illegal. This is a serious offense that carries life changing consequences. The Virginia law offices of SRIS, P.C. have a number of excellent Virginia drug defense attorneys & Virginia possession of controlled substance defense lawyers in its offices in Fairfax, Fredericksburg, Lynchburg, Manassas, Richmond, and Virginia Beach. Our Virginia drug attorneys and staff speak various languages, including English, Tamil, Spanish, French, Hindi, Cantonese, Mandarin, and Telugu. For more information or to make an appointment with SRIS, P.C. drug defense lawyer, please call, send an e-mail or complete the on-line form

To obtain a general overview of criminal drug defense, please click here

To learn more about the laws pertaining to criminal drug defense in Maryland or Massachusetts, please click on the state.

The following are some of the different types of Virginia drug charges one could face in the Commonwealth of Virginia:

• Possession or distribution of marijuana for medical purposes permitted
• Distribution of certain drugs to persons under 18 prohibited; penalty
• Distribution, sale or display of printed material advertising instruments for use in administering marijuana or controlled substances to minors; penalty
• Prohibiting the sale of drugs on or near certain properties
• Possession of firearms while in possession of certain controlled substances
• Manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance prohibited; penalties
• Possession of controlled substances unlawful
• Possession of marijuana unlawful

There are many different types of drug laws in Virginia. For example, a person in Virginia can be charged with simple possession of a drug, which can cause a person to be charged with either misdemeanor possession of a drug or felony possession of a drug. A person can also be charged with possession with intent to distribute an illegal substance. This too can result in a misdemeanor possession with intent charge or a felony possession with intent to charge. However, this type of an offense could result in the judge imposing a much harsher sentence. Simply because someone is charged with a Virginia drug offense does not mean that they are going to be convicted as charged. The drug charge could be dismissed if the facts are such that the Virginia Commonwealth attorney decides that they will not prevail at trial or there are some compelling reasons as to why the Virginia Commonwealth attorney should not pursue prosecution of the charge. There are also different plea bargain option available to the client if certain facts are present and the attorney handling the matter is skilled at negotiating a good plea bargain. As always, there is the option of going to trial and proving one’s innocence at trial. However, this option should be considered as a last resort as there are no guarantees as to the outcome of the case at trial, unless one has absolutely no other options available or one is certain as to the outcome of one’s case. Only the client can ultimately decide what is best for themselves. A good Virginia drug lawyer will lay out the different options and then the client will have to decide how to proceed.

A Virginia drug charge can be charged as nothing more than a class 4 misdemeanor. This would still be a criminal charge. However, a Virginia drug charge could be charged as a felony as well. This would have much more serious consequences if a person were to be convicted of this resulting from a very lengthy probation to a lengthy period of incarceration. See Virginia Code Section 18.2-10 and 18.2-11.

Virginia Drug Code § 18.2-251.1. Possession or distribution of marijuana for medical purposes permitted (top)

A. No person shall be prosecuted under § 18.2-250 or § 18.2-250.1 for the possession of marijuana or tetrahydrocannabinol when that possession occurs pursuant to a valid prescription issued by a medical doctor in the course of his professional practice for treatment of cancer or glaucoma.

B. No medical doctor shall be prosecuted under § 18.2-248 or § 18.2-248.1 for dispensing or distributing marijuana or tetrahydrocannabinol for medical purposes when such action occurs in the course of his professional practice for treatment of cancer or glaucoma.

C. No pharmacist shall be prosecuted under §§ 18.2-248 to 18.2-248.1 for dispensing or distributing marijuana or tetrahydrocannabinol to any person who holds a valid prescription of a medical doctor for such substance issued in the course of such doctor’s professional practice for treatment of cancer or glaucoma.

Virginia Drug Code § 18.2-255. Distribution of certain drugs to persons under 18 prohibited; penalty (top)

A. Except as authorized in the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, it shall be unlawful for any person who is at least 18 years of age to knowingly or intentionally (i) distribute any drug classified in Schedule I, II, III or IV or marijuana to any person under 18 years of age who is at least three years his junior or (ii) cause any person under 18 years of age to assist in such distribution of any drug classified in Schedule I, II, III or IV or marijuana. Any person violating this provision shall upon conviction be imprisoned in a state correctional facility for a period not less than 10 nor more than 50 years, and fined not more than $100,000. Five years of the sentence imposed for a conviction under this section involving a Schedule I or II controlled substance or one ounce or more of marijuana shall be a mandatory minimum sentence. Two years of the sentence imposed for a conviction under this section involving less than one ounce of marijuana shall be a mandatory minimum sentence.

B. It shall be unlawful for any person who is at least 18 years of age to knowingly or intentionally (i) distribute any imitation controlled substance to a person under 18 years of age who is at least three years his junior or (ii) cause any person under 18 years of age to assist in such distribution of any imitation controlled substance. Any person violating this provision shall be guilty of a Class 6 felony.

VA Drug Code § 18.2-255.1. Distribution, sale or display of printed material advertising instruments for use in administering marijuana or controlled substances to minors; penalty (top)

It shall be a Class 1 misdemeanor for any person knowingly to sell, distribute, or display for sale to a minor any book, pamphlet, periodical or other printed matter which he knows advertises for sale any instrument, device, article, or contrivance for advertised use in unlawfully ingesting, smoking, administering, preparing or growing marijuana or a controlled substance.
§ 18.2-265.1. Definition

As used in this article, the term “drug paraphernalia” means all equipment, products, and materials of any kind which are either designed for use or which are intended by the person charged with violating § 18.2-265.3 for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, strength testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance. It includes, but is not limited to:

1. Kits intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of marijuana or any species of plant which is a controlled substance or from which a controlled substance can be derived;

2. Kits intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing marijuana or controlled substances;

3. Isomerization devices intended for use or designed for use in increasing the potency of marijuana or any species of plant which is a controlled substance;

4. Testing equipment intended for use or designed for use in identifying or in analyzing the strength or effectiveness of marijuana or controlled substances;

5. Scales and balances intended for use or designed for use in weighing or measuring marijuana or controlled substances;

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, or mannite, intended for use or designed for use in cutting controlled substances;

7. Separation gins and sifters intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

8. Blenders, bowls, containers, spoons, and mixing devices intended for use or designed for use in compounding controlled substances;

9. Capsules, balloons, envelopes, and other containers intended for use or designed for use in packaging small quantities of marijuana or controlled substances;

10. Containers and other objects intended for use or designed for use in storing or concealing marijuana or controlled substances;

11. Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body;

12. Objects intended for use or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

b. Water pipes;

c. Carburetion tubes and devices;

d. Smoking and carburetion masks;

e. Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

f. Miniature cocaine spoons, and cocaine vials;

g. Chamber pipes;

h. Carburetor pipes;

i. Electric pipes;

j. Air-driven pipes;

k. Chillums;

l. Bongs;

m. Ice pipes or chillers.

Virginia Drug Code § 18.2-255.2. Prohibiting the sale of drugs on or near certain properties (top)

A. It shall be unlawful for any person to manufacture, sell or distribute or possess with intent to sell, give or distribute any controlled substance, imitation controlled substance or marijuana while (i) upon the property, including buildings and grounds, of any public or private elementary, secondary, or post secondary school, or any public or private two-year or four-year institution of higher education; (ii) upon public property or any property open to public use within 1,000 feet of such school property; (iii) on any school bus as defined in § 46.2-100; (iv) upon a designated school bus stop, or upon either public property or any property open to public use which is within 1,000 feet of such school bus stop, during the time when school children are waiting to be picked up and transported to or are being dropped off from school or a school-sponsored activity; (v) upon the property, including buildings and grounds, of any publicly owned or publicly operated recreation or community center facility or any public library; or (vi) upon the property of any state facility as defined in § 37.2-100 or upon public property or property open to public use within 1,000 feet of such an institution. It is a violation of the provisions of this section if the person possessed the controlled substance, imitation controlled substance or marijuana on the property described in clauses (i) through (vi) of this subsection, regardless of where the person intended to sell, give or distribute the controlled substance, imitation controlled substance or marijuana. Nothing in this section shall prohibit the authorized distribution of controlled substances.

B. Violation of this section shall constitute a separate and distinct felony. Any person violating the provisions of this section shall, upon conviction, be imprisoned for a term of not less than one year nor more than five years and fined not more than $100,000. A second or subsequent conviction hereunder for an offense involving a controlled substance classified in Schedule I, II, or III of the Drug Control Act (§ 54.1-3400 et seq.) or more than one-half ounce of marijuana shall be punished by a mandatory minimum term of imprisonment of one year to be served consecutively with any other sentence. However, if such person proves that he sold such controlled substance or marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance or marijuana to use or become addicted to or dependent upon such controlled substance or marijuana, he shall be guilty of a Class 1 misdemeanor.

C. If a person commits an act violating the provisions of this section, and the same act also violates another provision of law that provides for penalties greater than those provided for by this section, then nothing in this section shall prohibit or bar any prosecution or proceeding under that other provision of law or the imposition of any penalties provided for thereby.

Virginia Drug Code § 18.2-308.4. Possession of firearms while in possession of certain controlled substances (top)

A. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act (§ 54.1-3400 et seq.) of Title 54.1 to simultaneously with knowledge and intent possess any firearm. A violation of this subsection is a Class 6 felony and constitutes a separate and distinct felony.

B. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act (§ 54.1- 3400 et seq.) to simultaneously with knowledge and intent possess any firearm on or about his person. A violation of this subsection is a Class 6 felony and constitutes a separate and distinct felony and any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of two years. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.

C. It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a controlled substance classified in Schedule I or Schedule II of the Drug Control Act (§ 54.1-3400 et seq.) of Title 54.1 or more than one pound of marijuana. A violation of this subsection is a Class 6 felony, and constitutes a separate and distinct felony and any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of five years. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.

Virginia Drug Code § 18.2-248. Manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance prohibited; penalties (top)

A. Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance.

B. In determining whether any person intends to manufacture, sell, give or distribute an imitation controlled substance, the court may consider, in addition to all other relevant evidence, whether any distribution or attempted distribution of such pill, capsule, tablet or substance in any other form whatsoever included an exchange of or a demand for money or other property as consideration, and, if so, whether the amount of such consideration was substantially greater than the reasonable value of such pill, capsule, tablet or substance in any other form whatsoever, considering the actual chemical composition of such pill, capsule, tablet or substance in any other form whatsoever and, where applicable, the price at which over-the-counter substances of like chemical composition sell.

C. Except as provided in subsection C1, any person who violates this section with respect to a controlled substance classified in Schedule I or II shall upon conviction be imprisoned for not less than five nor more than 40 years and fined not more than $500,000. Upon a second or subsequent conviction of such a violation, any such person may, in the discretion of the court or jury imposing the sentence, be sentenced to imprisonment for life or for any period not less than five years and be fined not more than $500,000.
When a person is convicted of a third or subsequent offense under this subsection and it is alleged in the warrant, indictment or information that he has been before convicted of two or more such offenses or of substantially similar offenses in any other jurisdiction which offenses would be felonies if committed in the Commonwealth and such prior convictions occurred before the date of the offense alleged in the warrant, indictment, or information, he shall be sentenced to imprisonment for life or for a period of not less than five years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence and he shall be fined not more than $500,000.

C1. Any person who violates this section with respect to the manufacturing of methamphetamine, its salts, isomers, or salts of its isomers or less than 200 grams of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers shall, upon conviction, be imprisoned for not less than 10 nor more than 40 years and fined not more than $500,000. Upon a second conviction of such a violation, any such person may, in the discretion of the court or jury imposing the sentence, be sentenced to imprisonment for life or for any period not less than 10 years, and be fined not more than $500,000. When a person is convicted of a third or subsequent offense under this subsection and it is alleged in the warrant, indictment, or information that he has been previously convicted of two or more such offenses or of substantially similar offenses in any other jurisdiction, which offenses would be felonies if committed in the Commonwealth and such prior convictions occurred before the date of the offense alleged in the warrant, indictment, or information, he shall be sentenced to imprisonment for life or for a period not less than 10 years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence and he shall be fined not more than $500,000. Upon conviction, in addition to any other punishment, a person found guilty of this offense shall be ordered by the court to make restitution, as the court deems appropriate, to any innocent property owner whose property is damaged, destroyed, or otherwise rendered unusable as a result of such methamphetamine production. This restitution may include the person’s or his estate’s estimated or actual expenses associated with cleanup, removal, or repair of the affected property.

D. If such person proves that he gave, distributed or possessed with intent to give or distribute a controlled substance classified in Schedule I or II only as an accommodation to another individual who is not an inmate in a community correctional facility, local correctional facility or state correctional facility as defined in § 53.1-1 or in the custody of an employee thereof, and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class 5 felony.

E. If the violation of the provisions of this article consists of the filling by a pharmacist of the prescription of a person authorized under this article to issue the same, which prescription has not been received in writing by the pharmacist prior to the filling thereof, and such written prescription is in fact received by the pharmacist within one week of the time of filling the same, or if such violation consists of a request by such authorized person for the filling by a pharmacist of a prescription which has not been received in writing by the pharmacist and such prescription is, in fact, written at the time of such request and delivered to the pharmacist within one week thereof, either such offense shall constitute a Class 4 misdemeanor.

E1. Any person who violates this section with respect to a controlled substance classified in Schedule III except for an anabolic steroid classified in Schedule III, constituting a violation of § 18.2-248.5, shall be guilty of a Class 5 felony.

E2. Any person who violates this section with respect to a controlled substance classified in Schedule IV shall be guilty of a Class 6 felony.

E3. Any person who proves that he gave, distributed or possessed with the intent to give or distribute a controlled substance classified in Schedule III or IV, except for an anabolic steroid classified in Schedule III, constituting a violation of § 18.2-248.5, only as an accommodation to another individual who is not an inmate in a community correctional facility, local correctional facility or state correctional facility as defined in § 53.1-1 or in the custody of an employee thereof, and not with the intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, is guilty of a Class 1 misdemeanor.

F. Any person who violates this section with respect to a controlled substance classified in Schedule V or an imitation controlled substance which imitates a controlled substance classified in Schedule V, shall be guilty of a Class 1 misdemeanor.

G. Any person who violates this section with respect to an imitation controlled substance which imitates a controlled substance classified in Schedule I, II, III or IV shall be guilty of a Class 6 felony. In any prosecution brought under this subsection, it is not a defense to a violation of this subsection that the defendant believed the imitation controlled substance to actually be a controlled substance.

H. Any person who manufactures, sells, gives, distributes or possesses with the intent to manufacture, sell, give or distribute the following:

1. 1.0 kilograms or more of a mixture or substance containing a detectable amount of heroin;

2. 5.0 kilograms or more of a mixture or substance containing a detectable amount of:

a. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

b. Cocaine, its salts, optical and geometric isomers, and salts of isomers;

c. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

d. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c;

3. 2.5 kilograms or more of a mixture or substance described in subdivision 2 which contains cocaine base;

4. 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana; or

5. 100 grams or more of methamphetamine, its salts, isomers, or salts of its isomers or 200 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers shall be guilty of a felony punishable by a fine of not more than $1 million and imprisonment for 20 years to life, 20 years of which shall be a mandatory minimum sentence. Such mandatory minimum sentence shall not be applicable if the court finds that (i) the person does not have a prior conviction for an offense listed in subsection C of § 17.1-805; (ii) the person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense or induce another participant in the offense to do so; (iii) the offense did not result in death or serious bodily injury to any person; (iv) the person was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise as defined in subsection I of this section; and (v) not later than the time of the sentencing hearing, the person has truthfully provided to the Commonwealth all information and evidence the person has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the person has no relevant or useful other information to provide or that the Commonwealth already is aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

H1. Any person who was the principal or one of several principal administrators, organizers or leaders of a continuing criminal enterprise shall be guilty of a felony if (i) the enterprise received at least $100,000 but less than $250,000 in gross receipts during any 12-month period of its existence from the manufacture, importation, or distribution of heroin or cocaine or ecgonine or methamphetamine or the derivatives, salts, isomers, or salts of isomers thereof or marijuana or (ii) the person engaged in the enterprise to manufacture, sell, give, distribute or possess with the intent to manufacture, sell, give or distribute the following during any 12-month period of its existence:

1. At least 1.0 kilograms but less than 5.0 kilograms of a mixture or substance containing a detectable amount of heroin;

2. At least 5.0 kilograms but less than 10 kilograms of a mixture or substance containing a detectable amount of:

a. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

b. Cocaine, its salts, optical and geometric isomers, and salts of isomers;

c. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

d. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c;

3. At least 2.5 kilograms but less than 5.0 kilograms of a mixture or substance described in subdivision 2 which contains cocaine base;

4. At least 100 kilograms but less than 250 kilograms of a mixture or substance containing a detectable amount of marijuana; or

5. At least 100 grams but less than 250 grams of methamphetamine, its salts, isomers, or salts of its isomers or at least 200 grams but less than 1.0 kilograms of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.

A conviction under this section shall be punishable by a fine of not more than $1 million and imprisonment for 20 years to life, 20 years of which shall be a mandatory minimum sentence.

H2. Any person who was the principal or one of several principal administrators, organizers or leaders of a continuing criminal enterprise if (i) the enterprise received $250,000 or more in gross receipts during any 12- month period of its existence from the manufacture, importation, or distribution of heroin or cocaine or ecgonine or methamphetamine or the derivatives, salts, isomers, or salts of isomers thereof or marijuana or (ii) the person engaged in the enterprise to manufacture, sell, give, distribute or possess with the intent to manufacture, sell, give or distribute the following during any 12-month period of its existence:

1. At least 5.0 kilograms of a mixture or substance containing a detectable amount of heroin;

2. At least 10 kilograms of a mixture or substance containing a detectable amount of:

a. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

b. Cocaine, its salts, optical and geometric isomers, and salts of isomers;

c. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

d. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c;

3. At least 5.0 kilograms of a mixture or substance described in subdivision 2 which contains cocaine base;

4. At least 250 kilograms of a mixture or substance containing a detectable amount of marijuana; o

5. At least 250 grams of methamphetamine, its salts, isomers, or salts of its isomers or at least 1.0 kilograms of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers shall be guilty of a felony punishable by a fine of not more than $1 million and imprisonment for life, which shall be served with no suspension in whole or in part. Such punishment shall be made to run consecutively with any other sentence. However, the court may impose a mandatory minimum sentence of 40 years if the court finds that the defendant substantially cooperated with law-enforcement authorities.

I. For purposes of this section, a person is engaged in a continuing criminal enterprise if (i) he violates any provision of this section, the punishment for which is a felony and either (ii) such violation is a part of a continuing series of violations of this section which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and from which such person obtains substantial income or resources or (iii) such violation is committed, with respect to methamphetamine or other controlled substance classified in Schedule I or II, for the benefit of, at the direction of, or in association with any criminal street gang as defined in § 18.2-46.1.

J. Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), any person who possesses any two or more different substances listed below with the intent to manufacture methamphetamine, methcathinone or amphetamine is guilty of a Class 6 felony: liquefied ammonia gas, ether, hypophosphorus acid solutions, hypophosphite salts, hydrochloric acid, iodine crystals or tincture of iodine, phenylacetone, phenylacetic acid, red phosphorus, methylamine, methyl formamide, lithium metal, sodium metal, sulfuric acid, sodium hydroxide, potassium dichromate, sodium dichromate, potassium permanganate, chromium trioxide, methylbenzene, methamphetamine precursor drugs, trichloroethane, or 2-propanone.

K. The term “methamphetamine precursor drug,” when used in this article, means a drug or product containing ephedrine, pseudoephedrine, or phenylpropanolamine or any of their salts, optical isomers, or salts of optical isomers

Virginia Drug Code § 18.2-250. Possession of controlled substances unlawful (top)

A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

Upon the prosecution of a person for a violation of this section, ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.

(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony.

(b) Any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor.

(b1) Violation of this section with respect to a controlled substance classified in Schedule IV shall be punishable as a Class 2 misdemeanor.

(b2) Violation of this section with respect to a controlled substance classified in Schedule V shall be punishable as a Class 3 misdemeanor.

(c) Violation of this section with respect to a controlled substance classified in Schedule VI shall be punishable as a Class 4 misdemeanor.

B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of a controlled substance or substances is necessary in the performance of their duties.

Virginia Drug Code § 18.2-250.1. Possession of marijuana unlawful (top)

A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana.

Any person who violates this section shall be guilty of a misdemeanor, and be confined in jail not more than thirty days and a fine of not more than $500, either or both; any person, upon a second or subsequent conviction of a violation of this section, shall be guilty of a Class 1 misdemeanor.

B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of marijuana is necessary for the performance of their duties. For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form.

The Supreme Court of Virginia states the level of proof the Commonwealth must prove to convict a person for possession of a controlled substance.

Eric Cooper WALTON
v.
COMMONWEALTH of Virginia.
Record No. 971369.
Feb. 27, 1998.

Defendant was convicted in the Circuit Court, City of Salem, G.O. Clemens, J., of possession of marijuana, and suspension of defendant’s driver’s license was ordered. Defendant appealed. The Court of Appeals affirmed, 24 Va.App. 757, 485 S.E.2d 641. Defendant again appealed. The Supreme Court, Stephenson, Jr., Senior Justice, held that: (1) evidence supported finding that defendant knowingly or intentionally possessed marijuana, and (2) statute under which defendant’s driver’s license was suspended did not violate due process.

Affirmed.

STEPHENSON, Senior Justice.
The issues presented in this appeal are (1) whether the evidence is sufficient to convict the defendant of possession of marijuana and, if so, (2) whether the suspension of the defendant’s driver’s license pursuant to Code § 18.2-259.1 violates his constitutional right to due process.

On January 18, 1996, following a bench trial, the Circuit Court of the City of Salem convicted Eric Cooper Walton of possession of marijuana, in violation of **871 Code § 18.2-250.1. The court sentenced Walton to 30 days in jail, with all but four days suspended, and fined him $200. Pursuant to Code § 18.2-259.1, Walton’s privilege to operate a motor vehicle was suspended for a period of six months.FN1
FN1. Pursuant to subsection (C) of Code § 18.2-259.1, the trial court permitted Walton to be issued a restricted license for the purpose of traveling to and from his place of employment.
Walton appealed the judgment of conviction and the license suspension to the Court of Appeals, presenting, inter alia, the two issues presented here. The Court of Appeals denied the appeal challenging the sufficiency of the evidence of possession of marijuana, but awarded the appeal challenging the license suspension. Thereafter, the Court of Appeals affirmed the trial court’s suspension of Walton’s operator’s license. Walton v. Commonwealth, 24 Va.App. 757, 485 S.E.2d 641 (1997). We awarded Walton this appeal on both issues.

*425 II

On September 12, 1995, in the City of Salem, Detective W.W. Young executed a search warrant at the mobile home of Walton and his wife. The warrant authorized a search for marijuana and all items associated with its use and cultivation.

Young found a large marijuana plant growing in a small flower bed immediately adjacent to the steps to the door of the home. Unlike all other plants in the bed, the marijuana plant recently had been watered. Young also found a large metal tray under a couch in Walton’s living room. The tray contained a set of hemostats, a package of rolling papers, and a small quantity of plant material. A subsequent laboratory analysis proved that the plant material was .02 of an ounce of marijuana, “enough to make a cigarette.”

During the search, Walton volunteered several statements to Detective Young. Walton stated that he was not a drug dealer; rather, he was “just a guy who smokes a little marijuana and works hard for a living.” Walton also told Young that he had planted the flower bed but that he could not account for the planting of the marijuana. While the detective was searching through a package of cigarettes that had been on the metal tray, Walton said, “[t]here’s no joints in there. I smoked the last one just before you got [here].”

At trial, Walton testified that he had been smoking marijuana since 1969. He said that, at times, friends would come to his home and smoke marijuana with him. The friends would bring their own marijuana and take with them the remainder. He stated that, “every time [he] rolled marijuana into cigarettes, [he] either used [the metal] tray or a newspaper or a magazine or whatever,” and then he threw the residue in the trash.

Walton further testified that he never had grown marijuana, he did not know what marijuana plants looked like, and he did not know that the large plant in the flower bed was marijuana. He conceded that he previously had been convicted of two felonies and of two or three misdemeanors involving moral turpitude.

III

First, we determine whether the evidence is sufficient to support the trial court’s finding that Walton knowingly or intentionally possessed marijuana. When the sufficiency of the evidence in a criminal case is challenged on appeal, we must view the evidence and all reasonable inferences fairly deducible therefrom in the light *426 most favorable to the Commonwealth. Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984). Great deference must be given to the factfinder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony. Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991). Thus, a trial court’s judgment will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Code § 8.01-680; Dukes, 227 Va. at 122, 313 S.E.2d at 383.

In order to convict a person of illegal possession of an illicit drug, the Commonwealth must prove beyond a reasonable doubt that the accused was aware of the presence and character of the drug and that the accused consciously possessed it. **872 Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). An accused’s mere proximity to an illicit drug, however, is not sufficient to prove possession. Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). In addition, ownership or occupancy of the premises where the drug is found does not create a presumption of possession. Code § 18.2-250.1(A); Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983). Nonetheless, these factors may be considered in deciding whether an accused possessed the drug. Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982).

Additionally, proof of actual possession is not required; proof of constructive possession will suffice. Constructive possession may be established when there are ” ‘acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.’ ” Drew, 230 Va. at 473, 338 S.E.2d at 845 ( quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).

In the present case, the police found a marijuana plant growing near the entrance to Walton’s house. The plant was in a flower bed that Walton had planted, and it was the only plant in the flower bed that had been watered recently. Beneath a couch in Walton’s home, the police found a large metal tray containing hemostats, rolling paper, and enough marijuana to roll a cigarette. Walton, a longtime smoker of marijuana, sometimes used the metal tray when he rolled marijuana cigarettes. In fact, Walton had smoked a “joint” just before the police arrived at his home.

*427 Viewing the evidence and all reasonable inferences flowing therefrom in the light most favorable to the Commonwealth and affording the factfinder the deference to which it is entitled, we conclude that the evidence fully supports the trial court’s finding that Walton knowingly and intentionally possessed marijuana. This conclusion is supported by all the facts and circumstances proven, including Walton’s acts, statements, and conduct.

IV

Next, we determine whether the suspension of Walton’s driver’s license violates his constitutional right to due process. Code § 18.2-259.1 provides, in pertinent part, that a judgment of conviction of a drug offense “shall … operate to deprive the person so convicted … of the privilege to drive or operate a motor vehicle … in the Commonwealth for a period of six months.” Walton contends that the suspension of his driver’s license upon his conviction of possession of marijuana violates his substantive due process rights under the Fourteenth Amendment to the United States Constitution and under Article I, Section 11 of the Virginia Constitution.FN2
FN2. Walton also contends that the statute violates the proscription against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. The Court of Appeals, applying its Rule 5A:18, refused to consider this contention, ruling that the argument had not been made in the trial court. Walton, 24 Va.App. at 761, 485 S.E.2d at 643. The record shows that this argument was not made at trial, and, therefore, we will affirm this ruling of the Court of Appeals.

All legislation is presumed to be constitutional, and, therefore, the party attacking the legislation has the burden of proving that it is unconstitutional. Riddleberger v. Chesapeake Western Railway, 229 Va. 213, 215, 327 S.E.2d 663, 664 (1985). Any reasonable doubt whether a statute is constitutional shall be resolved in favor of its validity, and courts will declare a statute invalid only if it is plainly repugnant to some constitutional provision. Blue Cross v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827, 832 (1980).

Substantive due process tests the reasonableness of legislation vis-à-vis the General Assembly’s power to legislate. Etheridge v. Medical Center Hospitals, 237 Va. 87, 97, 376 S.E.2d 525, 530 (1989); Duke v. County of Pulaski, 219 Va. 428, 437-38, 247 S.E.2d 824, 829 (1978). Ordinarily, unless the legislation affects some fundamental constitutional right, substantive due process is satisfied if the legislation has a “reasonable relation to a proper purpose and [is] *428 neither **873 arbitrary nor discriminatory.” Duke, 219 Va. at 438, 247 S.E.2d at 829. This is the so-called “rational basis” test.

The right to operate a motor vehicle is a conditional privilege, which may be suspended or revoked in the interest of public safety under the police power of the Commonwealth. Commonwealth v. Ellett, 174 Va. 403, 414, 4 S.E.2d 762, 767 (1939). It is not a fundamental constitutional right; however, the right may not be revoked or suspended without due process of law. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971). Thus, whether legislation affecting that right satisfies substantive due process is determined by the application of the rational basis test.

Although Code § 18.2-259.1 mandates suspension of a driver’s license for a drug offense that does not involve the operation of a motor vehicle, it is reasonable to conclude that a purpose of the statute is to protect persons using the Commonwealth’s highways. As the Court of Appeals observed, the General Assembly “could reasonably assume that a person who possesses illegal substances would use those substances and could operate a motor vehicle while under the influence of [the] substances.” Walton, 24 Va.App. at 761, 485 S.E.2d at 643. We conclude, therefore, that the General Assembly, in enacting Code § 18.2-259.1, acted in the interest of public safety. Resolving all reasonable doubt in favor of the statute’s validity, we hold that the statute satisfies the rational basis test for substantive due process.

V

In sum, we hold that the evidence is sufficient to support Walton’s conviction of possession of marijuana and that the suspension of Walton’s driver’s license pursuant to Code § 18.2-259.1 does not violate Walton’s substantive due process rights. Accordingly, the judgment of the Court of Appeals will be affirmed.

Affirmed.

Va.,1998.
Walton v. Com.
255 Va. 422, 497 S.E.2d 869

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VIRGINIA GAMBLING DEFENSE ATTORNEYS

In Virginia, “Illegal gambling” means the making, placing or receipt, of any bet or wager in this Commonwealth of money or other thing of value, made in exchange for a chance to win a prize, stake or other consideration or thing of value, dependent upon the result of any game, contest or any other event the outcome of which is uncertain or a matter of chance, whether such game, contest or event, occurs or is to occur inside or outside the limits of this Commonwealth. This is a serious offense that carries life changing consequences. The Virginia law offices of SRIS, P.C. have a number of excellent Virginia gambling defense attorneys and has offices in Fairfax, Lynchburg, Fredericksburg, Manassas, Richmond, Virginia Beach, Virginia. For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form.

To learn more about the laws pertaining to gambling defense in Maryland or Massachusetts, please click on the state.

The following are some of the different types of gambling charges one could face in the Commonwealth of Virginia:

• Definitions:
  • Illegal gambling
  • Interstate gambling
  • Gambling device
  • Operator
• Penalty for illegal gambling
• Conducting illegal gambling operation; penalties
• Owners, etc., of gambling place permitting its continuance; penalty
• Accessories to gambling activity; penalty
• Illegal possession, etc., of gambling device; penalty

§ 18.2-325. Definitions (top)

1. “Illegal gambling ” means the making, placing or receipt, of any bet or wager in this Commonwealth of money or other thing of value, made in exchange for a chance to win a prize, stake or other consideration or thing of value, dependent upon the result of any game, contest or any other event the outcome of which is uncertain or a matter of chance, whether such game, contest or event, occurs or is to occur inside or outside the limits of this Commonwealth.

2. “Interstate gambling ” means the conduct of an enterprise for profit which engages in the purchase or sale within the Commonwealth of any interest in a lottery of another state or country whether or not such interest is an actual lottery ticket, receipt, contingent promise to pay, order to purchase, or other record of such interest.

3. “Gambling device ” includes:

a. Any device, machine, paraphernalia, equipment, or other thing, including books, records and other papers, which are actually used in an illegal gambling operation or activity, and

b. Any machine, apparatus, implement, instrument, contrivance, board or other thing, including but not limited to those dependent upon the insertion of a coin or other object for their operation, which operates, either completely automatically or with the aid of some physical act by the player or operator, in such a manner that, depending upon elements of chance, it may eject something of value or determine the prize or other thing of value to which the player is entitled; provided, however, that the return to the user of nothing more than additional chances or the right to use such machine is not deemed something of value within the meaning of this subsection; and provided further, that machines that only sell, or entitle the user to, items of merchandise of equivalent value that may differ from each other in composition, size, shape or color, shall not be deemed gambling devices within the meaning of this subsection.

Such devices are no less gambling devices if they indicate beforehand the definite result of one or more operations but not all the operations. Nor are they any less a gambling device because, apart from their use or adaptability as such, they may also sell or deliver something of value on a basis other than chance.

4. “Operator ” includes any person, firm or association of persons, who conducts, finances, manages, supervises, directs or owns all or part of an illegal gambling enterprise, activity or operation.

§ 18.2-326. Penalty for illegal gambling (top)

Except as otherwise provided in this article, any person who illegally gambles or engages in interstate gambling as defined in § 18.2-325 shall be guilty of a Class 3 misdemeanor. If an association or pool of persons illegally gamble, each person therein shall be guilty of illegal gambling.

§ 18.2-328. Conducting illegal gambling operation; penalties (top)

The operator of an illegal gambling enterprise, activity or operation shall be guilty of a Class 6 felony. However, any such operator who engages in an illegal gambling operation which (i) has been or remains in substantially continuous operation for a period in excess of thirty days or (ii) has gross revenue of $2,000 or more in any single day shall be fined not more than $20,000 and imprisoned not less than one year nor more than ten years.

As used in this section, the term “gross revenue” means the total amount of illegal gambling transactions handled, dealt with, received by or placed with such operation, as distinguished from any net figure or amount from which deductions are taken, without regard to whether money or any other thing of value actually changes hands.

§ 18.2-329. Owners, etc., of gambling place permitting its continuance; penalty (top)

If the owner, lessee, tenant, occupant or other person in control of any place or conveyance, knows, or reasonably should know, that it is being used for illegal gambling, and permits such gambling to continue without having notified a law-enforcement officer of the presence of such illegal gambling activity, he shall be guilty of a Class 1 misdemeanor.

§ 18.2-330. Accessories to gambling activity; penalty (top)

Any person, firm or association of persons, other than those persons specified in other sections of this article, who knowingly aids, abets or assists in the operation of an illegal gambling enterprise, activity or operation, shall be guilty of a Class 1 misdemeanor.

§ 18.2-331. Illegal possession, etc., of gambling device; penalty (top)

A person is guilty of illegal possession of a gambling device when he manufactures, sells, transports, rents, gives away, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of any gambling device, believing or having reason to believe that the same is to be used in the advancement of unlawful gambling activity. Violation of any provision of this section shall constitute a Class 1 misdemeanor.

Our Virginia Gambling attorneys and staff speak various languages, including English, Tamil, Spanish, French, Arabic, Hindi, Cantonese, Mandarin, and Telugu.

For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form.

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