Protecting Your Rights
Arrest Without a Warrant
In Virginia, a law enforcement officer cannot arrest a person for a misdemeanor traffic offense or traffic infraction unless one of the following conditions is met: 1) The offense happens in the officer’s presence, 2) the officer arrests the person at the scene of an accident that involves motor vehicles on a public road in Virginia, 3) the officer arrests the person at a hospital after an accident under certain circumstances, or 4) the officer arrests the person for DUI or car theft under certain circumstances.
If an officer makes a warrantless arrest or writes a ticket for a traffic offense that did not occur in the officer’s presence or under one of the other specific conditions, the arrest is not valid and the charges may be dropped. If you are charged with a traffic offense (including driving on a suspended license) and the officer did not see you drive the vehicle, contact a Virginia traffic attorney to find out if your arrest or ticket is valid.
Reasonable Articulable Suspicion
The fourth amendment to the U.S. constitution protects its citizens from unreasonable searches and seizures. Seizure is when the police take one’s property or limit one’s freedom. When a police officer pulls a person over, asks for his driver’s license and registration, or places him in a situation where he is not free to leave, this may be an instance of seizure.
When the police execute a traffic stop the police are seizing the driver. For a traffic stop to be constitutionally valid, the police must have a “reasonable articulable suspicion” that some criminal activity is afoot before they can stop the driver. This means that the officer must be able to articulate to the court certain evidential justification for seizing a driver.
In the case of driving on a suspended or revoked license, the police sometimes execute a traffic stop after entering a driver’s license plate number into their computer system. The computer system not only tells the police information about the car, it also gives the police the criminal and DMV record of the registered owner of the vehicle. If the police see that the registered owner of the vehicle is suspended or revoked and matches the descriptions of the driver they may choose to initiate a traffic stop.
If your criminal defense attorney can convince a judge that the police officer who stopped you did not have enough evidence to have a reasonable articulable suspicion, the judge may declare the traffic stop unconstitutional. If a judge declares a traffic stop unconstitutional, the judge may exclude any subsequent evidence and arrests from trial. Typically, winning a reasonable articulable suspicion argument means winning the case. If you have any doubts as to whether the officer had reasonable articulable suspicion then you should contact a local criminal defense attorney immediately.
The fourth amendment to the constitution protects us from unreasonable searches and seizure. This includes unreasonable arrests. In order to arrest someone, the police must have a specific amount of evidence that the suspect committed a crime. The amount of evidence necessary to arrest someone is called “probable cause”.
Being arrested is not the same as being placed in custody. A person can be arrested without being handcuffed, put in a cruiser, or sent to jail. If you received a summons, you were essentially arrested at the time the officer wrote the ticket.
The amount of evidence required for probable cause is more than “reasonable articulable suspicion” and less than “beyond a reasonable doubt”. There are few hard and fast rules about how much evidence is necessary for probable cause. It takes an experienced traffic attorney to even be able to estimate the amount of evidence necessary to justify an arrest.
However, if your traffic attorney can convince the judge that at the time of the arrest, the police did not have enough evidence, the judge may declare the arrest unconstitutional and dismiss the case. If you believe that the police did not have enough evidence at the time of your arrest contact a local traffic attorney immediately for a consultation.
Notice of Suspension or Revocation
Several of the most common license offenses (such as Driving on a Suspended License, Driving on a Revoked License, etc.) require that the driver be notified that they have been suspended or revoked. Being notified is not the same thing as knowing.
There are two ways a driver may be officially “notified”: 1) the driver has actual knowledge that they were suspended or 2) The DMV or court sent an official notification to the defendant.
The police typically prove actual knowledge based on the statements of the driver at the scene. When an officer finds out a person has been suspended the officer usually asks “Did you know that your license was suspended?”. If the driver tells the officer that they knew their license was suspended then the court may find that that statement is sufficient evidence of notification. If a driver does not admit to knowing, the courts may still find that there was sufficient notice if the DMV or the court took the appropriate steps to send an official letter of suspension to the driver. This may be sufficient notice even if the driver never read or received the notice.
The rules for what qualifies as proper notice are very technical. The type of letter sent, the way it was sent, the timing of the delivery, and the content of the letter are all very important. To find out if you were given legal notice get a copy of your Virginia DMV record and contact a local traffic attorney immediately. This defense is one of the most common ways an attorney can protect you from a licensing charge.
Common Technical Defenses
Each form of licensing offense has slightly different requirements. For example, 46.2-301 does not apply to mopeds or to people who merely operate a vehicle whereas 18.2-272 applies to mopeds in some situations, and can apply to someone who is sitting behind the wheel of a car with the engine off and the stereo on. To know whether your actions fit within the boundaries of the offense you were charged with, you should ask yourself the following questions:
- Was I on private property (such as a parking lot) when I was arrested or ticketed?
- Was the vehicle not actually moving when the police saw me?
- Was my license not actually suspended, revoked, or restricted?
- Was I on a moped or another uncommon type of vehicle)?
If the answer to any of those questions is yes, you may have a defense against your charges, depending on the circumstances and the actual charge. You should contact a traffic attorney immediately.
Getting Your License Back Before Trial
Many drivers who are charged with Driving on a Suspended License or Driving Without a Valid License may be in position to get their license back before their trial date. Some police officers even tell drivers “just take care of your license before trial and you will be fine”.
Getting your license reinstated before trial is usually good advice, but doing so does not mean that you will be fine at your trial. Getting your license back before trial is not a defense to driving on a suspended license. Technically you are still guilty, even if you were suspended unfairly. Some judges will dismiss minor charges if you get your license back before trial. Other judges will not make any exceptions. Some judges will find you guilty but give you a lighter punishment. Being found guilty (even with no punishment) will still violate your probation, affect your criminal record, result in DMV points, etc.
Never assume you will be fine. Instead get a free consultation with an experienced local traffic attorney to find out what will likely happened in your situation.