One form of a plea agreement provides for the prosecution and defense agreeing on a sentencing cap. The judge maintains the ability to reject the terms of the plea agreement. If the judge accepts the plea agreement, the court is limited to the agreed upon sentencing cap. When the agreement provides a sentencing cap, the defendant needs to be prepared for the judge to impose a sentence with confinement at the cap. However, counsel for the defendant retains the ability to argue for a sentence below the cap. For example, I recently represented a client who was charged with multiple child sex offenses. He fully confessed to the police, which put him in a position that he was effectively boxed in by his own statement. The plea agreement called for guilty pleas to forcible sodomy, two counts of aggravated sexual battery and custodial indecent liberties – he was facing a maximum sentence of life, plus 55 years. The prosecution pretty much held all the cards in the case – my client’s confession put him at risk of a very significant period of confinement, in addition to a life time sex-offender registration requirement. The best plea agreement I could negotiate called for a 13 year confinement cap. The facts we were dealing with were horrendous and the victim would be testifying at the sentencing hearing. I made it clear to my client, and his family, that while the plea agreement offered him significant confinement protection, they needed to be fully prepared to have the judge impose significant confinement to include 13 years to serve. I reminded him that there is no parole in Virginia. Once the plea agreement was signed, we focused our case on sentencing – preparing a sentencing package to emphasize to the court that but-for the subject offenses, he has lived a life of exemplary conduct, to include a lengthy period of military service. As part of the sentencing package, I had my client write a letter to the court. The focus of that letter was to accept full responsibility for his conduct as well as to demonstrate empathy for the victim, and what he has put her through. As expected, during the sentencing hearing, the victim testified and described what her life had been like over the approximate 11 years that she said she endured sexual abuse. On cross examination, I asked her two questions – had she taken advantage of counseling and had the prosecution or police showed her the apology letter the police had my client write when he was arrested. I knew she had not attended any counseling and was quite confident she was never shown his apology letter. She tearfully answered in the negative as to both questions. In her sentencing argument, the prosecutor argued that my client be sentenced to serve the 13 years he agreed to as his sentencing cap. I argued that a significantly lower sentence was appropriate. As stated, my client and his family were fully prepared for imposition of a sentence to include 13 years of confinement. When the judge asked my client if he had anything to say before imposition of sentence, I had my client again apologize to the victim, his wife and son, his family and the court. The sentence of 7 years, 5 months was the end result – an extremely good result in an extremely difficult case.
As a defense attorney, it is really frustrating to see this situation happening time and time again – but once again it has happened to another one of my clients: My client, a Naval officer (0-2E with 19 years of service), was involved in a relationship with an 0-2, both assigned to the same ship. It was one of those relationships that never should have gotten off the ground – a lot of on again-off again issues that found their way on board the ship. Things culminated with an accusation of an assault while my client was on duty, resulting in a command directed investigation. It boiled down to a lot of she said-he said, which is typical; however the female officer provided false information to the investigation officer, as well as to the executive officer concerning the nature of the relationship.
My client was taken to Captain’s Mast for assault (2 specifications) and conduct unbecoming an officer and Detached for Cause from the command. His promotion to 0-3 was also put on hold. Understand, the maximum punishment for assault at a court-martial is 6 months of confinement, in comparison to the maximum punishment for false official statement is 5 years of confinement. Not many officers could avoid serious consequences if they intentionally lied during an official investigation, or intentionally lied to the XO – how about intentionally lying to both of them; for any officer, that could easily be the end of their career, a significant integrity violation, especially for an officer holding a TS-SCI security clearance – except apparently if the officer is a female in today’s environment and is an alleged victim of a domestic assault!
This officer was not taken to Mast, she was not reported for a security clearance incident, she was not DFC’d, she did not get a Letter of Reprimand – none of the above, but she has been selected for advancement to 0-4. My client on the other-hand was directed by PERS to Show Cause for retention based upon allegations of misconduct and substandard performance of duty. Luckily, the government recorder thought it was a wise move to call the LT (alleged victim) to testify telephonically – ended up not being such a wise move for the government. I had a few questions for her – and after my extensive cross examination of her, the government rested its case.
I have represented many clients before Boards of Inquiry, but not once have I seen a board do what this board did – after the government rested, and before I called any witnesses including my client, the board announced that they had heard enough – the government had not proven any misconduct or substandard performance; they voted for NO MISCONDUCT and NO SUSTANDARD PERFORMANCE. Regrettably my client still has the Mast and DFC on his record which we now need to petition the Board for Correction of Naval Records to remove.
What is Virginia’s Drunk in Public Law?
According to Virginia code section 18.2-388, anyone noticeably intoxicated in public can be charged with a class 4 misdemeanor which is punishable by up to a $250 fine. Local municipal codes also prohibit being intoxicated in public, typically mirroring the state code in elements and punishment.
Sometimes, when people choose to go out at night for a good time with friends and family, they also choose to consume alcohol. While all adults of the legal drinking age are legally allowed to drink alcohol, whether in their own home or out on town, a fun time can turn into a stressful interaction with law enforcement if people enjoy themselves a little too much and drink until they are visibly drunk, or are publicly intoxicated.
There are two distinct aspects to every public intoxication charge:
- Being in public: If someone else can reasonably see you, or you have not taken any steps to enter a private space, you are in public. Being in the backseat of your locked vehicle or on your lawn with the gate open, for example, still count as being in public despite you technically being in and on your private property.
- Being intoxicated: Law enforcement officers do not need to get scientific with public intoxication charges, not like they do with DUIs; they only need to determine if you are drunk based on your behaviors and actions. If you have slurred speech or cannot stand up straight without balance issues, they are free to label you as intoxicated.
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Don’t Plead Guilty
The vast majority of individuals charged with public intoxication simply prepay the fine or plead guilty in court – DON’T! While public intoxication in Virginia is a non-jailable offense, serious repercussions may come from a conviction.
As a civilian, your career may be impacted whether you are in the corporate world or work as a commercial truck driver. College students or persons in technical training programs often find that once they graduate and are either applying for jobs or seeking to take a professional licensing exam that a conviction for public intoxication can bar them from working in the field that they have devoted years of money and hard work to.
Additionally, once you have several convictions for drunk in public, or combined with a DUI conviction, the Commonwealth Attorney’s office can actually petition the Circuit Court to have you “interdicted,” which makes it illegal for you to simply purchase or possess alcohol.
If you are an active duty service member, a public intoxication arrest can be even more damaging, basically doubling when compared to the trouble an average civilian would face. Other than incarceration and high fines paid to the state, a serviceman will be dishonored or severely punished by their commanding officer or other soldiers within their unit. If the service member has had prior alcohol-related incidents (ARI’s) in the past, the risks of an administrative separation or rank demotion increase dramatically.
How to Defend Yourself Against Public Intoxication Charges
The arresting officer may make it seem as if you have no way out of a public intoxication charge but that is merely a member of the police force doing their job. The truth is that there are defenses to every alleged crime on the books.
You might be going up against powerful opposition who has stacked the deck with their evidence but that is no reason to give up now. At McCormack & McCormack we believe in our clients and the fairness of the criminal justice system.
Our Virginia Beach criminal defense attorneys can consider the following defense strategies for your public intoxication case:
- Sobriety: As mentioned previously, you are probably not going to be asked to perform any sort of chemical test to determine your actual blood alcohol concentration (BAC) level if you are arrested for being drunk in public. Without anything but the officer’s discretion as evidence, we can exploit their lack of thoroughness and argue that you were sober the whole time.
- No harm, no foul: Many public intoxication arrests are pretty cut and dry – someone is visibly drunk, the police happen to be nearby, and they arrest them. But looking at arrest records show that nothing harmful ever happened, such as no property damage, no attempted assaults, nothing. We may be able to significantly reduce your sentencing or have the case dismissed if we can show the judge that your public intoxication was totally harmless.
- Led into the public: Were you within your own home, enjoying some alcoholic beverages, and then told to step outside to talk to the police? Before you know it, you might be arrested for being publicly intoxicated, despite never having the intention of entering a public space. This defense can sometimes be used if you were in a bar and told to leave due to intoxication.
- General mitigation: Our attorneys have had countless public intoxication charges dismissed based purely off mitigation evidence presented to the court. This often includes our client’s career or military rank/position and security clearance, all of which can be negatively impacted by a conviction for drunk in public; our client having attended AA classes or other alcohol counseling, including through SARP or comparable military-based treatment sessions prior to the court date; our client having completed a period of community service; among others. In many of these cases, our client is clearly technically guilty of the offense and there would seemingly be no valid defense to the charge. Based on our expertise and knowledge preparing our clients and the case for trial, we oftentimes succeed in having the case dismissed either immediately at trial or several months down the road.
Were you arrested for public intoxication? Let Criminal Defense Attorney Jarrett McCormack and the law firm of McCormack & McCormack be your legal advocates who defend your rights and uphold your best interests.
With more than 41 years of combined legal and trial experience, our attorneys have become well-known throughout Hampton Roads as top-tier lawyers who give personalized counsel to everyone we help.
You can call 888.718.5899 today and set up your complimentary initial consultation.
by Jarrett McCormack
After being arrested for driving while intoxicated, the waiting game begins and it can be one of the most unsettling parts of the entire experience. Should you plead guilty? What about plea bargaining? And do you really need an attorney?
Before your thoughts spiral out of control, take a deep breath and carefully weigh your options. A simple pros and cons list can go a long way toward helping you make an informed decision. However, for countless individuals facing DWI charges, hiring an attorney has been one of the best things they could have done, regardless of their circumstances. The advantages below may convince you to do the same.
Three Reasons Why You Need a DWI Attorney
Evaluate the evidence. Many people think that the results of blood and breath tests are conclusive and offer no way of disproof. An experienced DWI attorney can assess the evidence being used against you and prepare a defense to fight against it.
Get ready for court. No matter how serious the conditions surrounding your arrest are, it can be confusing to understand the laws and even more difficult making sense of the court proceedings. When you have an attorney helping you prepare for your trial, the pressure no longer rests on you.
Fight for a lesser sentence. For those without an attorney, the concept of plea bargaining may be completely foreign. However, it is one of the most valuable tools for reducing your sentence to much more lenient terms. An attorney who has done this before knows how to effectively negotiate with the court.
Are convinced that your best move is to hire a strong legal guide to help you with your DUI case? Contact a DUI lawyer at McCormack & McCormack today to learn more about how we can help you!
by Jarrett McCormack
Have you been placed under arrest or charged with drug possession after the police found drugs that weren’t yours? If so, you may be wondering if there is anything you can do to prove your claim. Hiring a criminal defense lawyer from our firm will significantly improve your chances of being able to prove your claim and get your case dismissed. Our firm has been providing aggressive legal representation to individuals facing drug crime charges and other criminal offenses since 1982. We understand your legal rights and are determined to be the unwavering advocate you need when fighting to protect those rights.
There is no question that police officers are accustomed to hearing people declare that the drugs found in their position, in their vehicle, on their property or on their person were not actually theirs. Do not expect that making this type of claim to the police will result in your immediate release, as it will not. Finding out how the drugs came to be in your possession, who the drugs actually belong to, and why they were hidden on you or your property without your knowledge is the most straightforward way of substantiating your claim.
Witnesses and other physical evidence can also be used to show officers and the prosecuting attorney that a wrongful arrest has been made. In some instances, showing clear evidence that the arresting officer failed to follow the laws pertaining to search and seizure may be all that is needed to get the prosecution to drop any case it has been attempting to build against you. If you need help proving the drugs police found in your possession where not actually yours, contact McCormack & McCormack at once. We represent clients throughout Hampton Roads and Virginia Beach.
by Jarrett McCormack
Recently, news broke that a Portsmouth homeowner shot a burglar who had broken into his home. While the investigation is still underway, and neither the police nor the man have publicly commented on what happened that day, attorney Jarrett McCormack thinks that it will all come down to whether or not the homeowner felt threatened by the burglar. He further states that “you have a reasonable fear for your family or yourself” during an attempted robbery, so he finds it unlikely that criminal charges will be filed.
However, the fact remains that Virginia does not have a castle doctrine, or “defense of habitation law,” that would permit a homeowner to use deadly force when defending their home. Such a law has been proposed, and defeated, multiple times in the state. Yet, it is also true that the burglar wasn’t seriously or fatally hurt during the incident; while he did have to be taken to the hospital after the shooting, it has since been reported that he is doing fine. It is for this reason that McCormack finds it unlikely that any charges will be filed against the homeowner—as deadly force was not used.
“I think commonwealth attorneys often times shy away from it because when somebody breaks into a house, they’re not the most sympathetic victim,” states McCormack. The fact of the matter is that the man’s home was burglarized at 3 A.M., and he found it necessary to defend himself and his family. The police investigation is still underway, however, so very few details have surfaced about how the burglar broke in, whether or not threats were made and/or what condition the burglar was in before he was shot. For this reason, it is still possible that criminal charges could be filed.
To learn more about this case, read the full story here.
by Jarrett McCormack
