Archive | July 2012

DUI 103: What Happened at the Traffic Stop?


“kinda like frogger” by Author

The traffic stop and/or arrest are crucial to the timeline of a DUI case.  It is when the officer responds where the case possibly can completely unravel for the prosecution, if the circumstances are right.

The Fourth Amendment comes into play when a police officer stops a vehicle under reasonable suspicion that the motorist has or is in the process of committing a crime.  The leading case is Terry v. Ohio, 392 U.S. 1 (1968), where the Supreme Court held that a person stopped and detained by police under is protected by the Fourth Amendment, and that any evidence obtained by police through an illegal traffic stop cannot be admitted in court (the “exclusionary rule”).  And in U.S. v. Cortez, 449 U.S. 411 (1981), the Court clarified that an officer need only to have “reasonable suspicion” that a motorist had or was in the process of committing a crime to pull over the vehicle and detain the occupants.  The consequences of these and other court rulings are that police departments have specific guidelines and training on how to conduct a legal traffic stop.

It is here where a good investigation can lead to information that can make or break a DUI defense.  First, ask a series of questions about events leading up to the traffic stop.  What were the viewing conditions for the officer– day or night, good or bad weather, obstructions from traffic or objects on or along the side of the road, items in the police car that could have blocked the view, etc.?  What specific behavior did the officer see?  Were the road markings and signs clear enough to see?  If the officer did not have reasonable suspicion that you or your client did not commit a traffic infraction, than s/he did not have any cause to conduct a traffic stop.

After the officer stops the vehicle, there are more questions.  Were the officer’s directions to the driver clear and understandable?  Was the pat-down search performed properly, i.e., on the outside of clothing, without probing into pockets?  Did the officer properly conduct the Standard Field Sobriety Tests?  If the driver was unruly or otherwise uncooperative or belligerent to the officer, did s/he reasonably respond in kind?  Did the officer properly read the driver his/her Miranda rights, and after that, did the police conduct a proper interrogation?  And if the police seized anything from the vehicle, was there probable cause for a search incident to arrest, or did they get a warrant?

Any and every question about what happened at the traffic stop, no matter how insignificant they may seem, must be answered in order to give yourself or your client the best defense possible.  And it goes a long way towards letting the judge and prosecution know that you did your homework.

More information:

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

From the Client Files: Separate and Not Apart


“fairy castle” by Author

The Code of Virginia is very plain about the basic requirements for an uncontested divorce:

On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.  Va. Code § 20-91(A)(9)(a).

With the onset of the Great Recession and economic sluggishness still lingering thereafter, many divorcing couples are finding it difficult, if not impossible, to find and finance separate living arrangements during the one year time period.  So it is important to know that it is still possible to get a divorce even if both parties live under the same roof.

First, it would be helpful to sign some kind of mutual separation agreement which specifically delineates how the parties will maintain separate lives while sharing a roof.  But even if the parties do not create such an agreement, there are a number of things that they can do to show the court that they have the intention to divorce:

  • Hold yourselves as separated to all of your friends, relatives, co-workers, etc.
  • Maintain separate and distinct living spaces in the house.
  • Do not pay for the other’s necessities, including food, clothing.
  • Have absolutely no sexual relations with each other.
  • Do not attend religious services or social functions together.
  • Prepare and eat meals separately.
  • Keep separate finances, including (but not limited to) savings, checking and retirement accounts.
  • Do not share household chores — i.e., clean up after yourself only.
  • Show evidence that it would be financially difficult or onerous to pay for separate living arrangements.
  • Have a someone check in from time to time to corroborate separate living arrangements.

While it is more difficult to get a divorce under these arrangements, it is not impossible.  Just plan ahead, be ready to thoroughly explain your situation to the court and a have corroborating witness who will back up your claims.

Family Law News article with case law.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

From one newlywed to another…


“something new” by Author

Congratulations to Rep. Barney Frank and Jim Ready!  They got married on July 7, less than a week after my wife and I tied the knot.  Rep. Frank became the first Member of Congress to be wed in a legal same-sex ceremony, yet another step forward for the cause of marriage equality.

Mazel tov!

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Adventures in Court-Sitting, Part III: City of Alexandria


Compared to the behemoths in DC and Fairfax, Alexandria City’s Franklin P. Backus courthouse seems tiny, which is understandable because Alexandria is a city of “only” about 139,000.  Inside, the hallways are stately but simple, and the General District and Circuit courtrooms have an old-time feel, with large windows, high vaulted ceilings with chandeliers, and paintings of judges of years past on the walls.  And unlike some of the newer judicial buildings in the DC metropolitan area, Alexandria’s halls of justice are brightly colored and make great use of natural light, giving an almost cheerful atmosphere — if only your matter weren’t so serious.

The docket was light that day with no family law cases on the schedule, so I spent the first part of the morning checking out traffic court.  Unlike my experiences in Fairfax and DC, the courtroom was sparsely populated with folks challenging tickets, and the judge zipped through uncontested cases in lightning speed.  Later, I picked up the tail end of a civil docket, a very short small claims session, and a couple of more hardcore criminal cases in Circuit Court.

Another observation: since the courthouse is in the middle of Old Town Alexandria, the surrounding neighborhood is a lot less forbidding than its counterparts in DC and Fairfax and Arlington.  Don’t forget to get a sandwich or visit the waterfront after your day in court.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

DUI 102: Check Out the Scene


“checkerboard crosswalk” by Author

In defending a DUI case, it’s best to first go back to basics.  And there’s nothing more basic than finding out what happened at the accident/traffic stop scene.

Every accident or traffic stop is like a person — no two are exactly alike, even if they happened in the same location under similar circumstances.  You cannot assume that a new case will be anything like something you had dealt with in the past.  So you should take the time to visit the scene.  Make note of everything you can — pavement conditions, the way the lines are painted on the road, placement of signs and traffic signals, trees and other vegetation, the angle of the sun at different times of the day, sidewalks and/or sidewalks, buildings and other landmarks.  And also pay close attention to where the police officer observed the alleged behavior or responded to the accident.

Taking the time to visit and learn everything you can about the scene of the incident can go a long way.  Foremost, you’ll give notice to the judge and the prosecution that you prepared a thoughtful defense.  And it will give your client  some peace of mind that you are looking after his/her best interests.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

DUI 101: A Summary of Your Defense


“he’s coming for you” by Author

The repercussions of a DUI conviction can be severe.  Not only can you face a fine and/or jail time, but you will likely lose your driving privileges for an extended period.  So, of course, the best way to avoid a DUI conviction is simply to avoid drinking and driving.

But if you do somehow end up in a situation where you are charged with DUI, and you want to go to trial and not try to cut a plea deal for a lesser charge with the prosecution, there is a minefield to negotiate on your way to an acquittal.  In your preparation for that undertaking, you should begin formulating your defense with the following points:

1. Visit the scene of the traffic stop and arrest and learn it backwards and forwards.

2. Know the specifics of the arrest and detention itself, paying close attention to possible 4th Amendment search and seizure violations.

3. In cross-examination, dissect the arresting officer’s knowledge and administration of the Standard Field Sobriety Test for deficiencies.

Above all, be thorough.  The standard is proof beyond a reasonable doubt, so even minor details that can question the evidence against you or your client can be important enough to result in an acquittal.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.