Monday, November 9, 2009

Lofgren v. Commonwealth

In this interesting case, the Virginia Court of Appeals reverses the trial court. The facts of this case surround the defendant, who was charged with use of profane, threatening, or indecent language. The defendant called his former girlfriend over the telephone and called her a fucking bitch and cunt.

The defendant used the words as curse words or swear words. Thus, the language did not meet the requirements of obscene language under Section 18.2-372 of the Code of Virginia, as amended.

The charge of violating Section 18.2-427 of the Code of Virginia, as amended, is reversed.

Perry v. Commonwealth

In this case, the Virginia Court of Appeals agreed with the trial court. The Virginia Court of Appeals refused to suppress evidence of a vial marijuana found on defendant after the arresting officer smelled marijuana from the defendant's car.

Tuesday, October 6, 2009

Child Support

My experience as a child support lawyer in Norfolk, Virginia is extensive. It is generally true that an action for child support is an in personam action that requires personal jurisdiction over the obligor. Furthermore, to obtain jurisdiction over the obligor parent, he or she must be served personally in Virginia or through personal service in accordance with the Virginia long arm statute.

Generally, the child support obligation is based on the gross income of both parties. Furthermore, Virginia relies heavily on the guideline amount in setting child support. However, the court will also generally consider day care expenses and cost of health insurance for the child in setting a child support obligation. Thus, the child support guideline statutes create a rebuttable presumption that the amount computed is the correct amount.

Monday, October 5, 2009

DUI Sentencing

1st offense: up to 12 months in jail and $2,500.00 fine; mandatory minimum fine not subject to suspension is $250.00; if BAC is greater than or equal to .15 to .20, 5 days mandatory jail not subject to suspension; if BAC is greater than .20, 10 days mandatory jail time not subject to suspension; restrictive license eligibility upon entry into ASAP program; interlock required if BAC is greater than or equal to .15; 12 months suspension of DL

2nd offense w/in 5 years: up to 12 months in jail and $2,500.00, mandatory fine not subject to suspension is $500.00 (plus $500.00 if BAC is equal to or greater than .20); 20 days mandatory jail time not subject to suspension (plus 10 days if BAC is equal to or greater than .15 or plus 20 days if BAC is greater than or equal to .20); eligible for restrictive license after 1 year; interlock required for 6 months to 3 years; suspension of DL for 3 years;

2nd offense w/in 10 years: up to 12 months in jail and $2,500.00 fine; $500.00 fine not subject to suspension (plus an aditional $500.00 if BAC is greater than or equal to .20); 10 days in jail not subject to suspension (plus an additional 10 days if BAC is greater than or equal to .15 or 20 days if BAC is greater than or equal to .20); eligible for restricted DL after 4 months; interlock required for 6 months to 3 years; suspension of DL for 3 years

3rd offense w/in 5 years: 1-5 years in prison or up to 12 months in jail and $2,500.00 fine; $1,000.00 fine not subject to suspension; mandatory jail sentence of 6 months not subject to suspension; no restrictive driver's license (however, you may petition after minimum of 5 years); interlock required for at least 6 months upon restoration of DL or with a restricted DL during time of suspension; suspension of DL is indefinite(however, one may petition after minimum of 5 years

3rd offense w/in 10 years: 1-5 years in prison or up to 12 months in jail and a $2,500.00 fine, mandatory minimum fine of $1,000.00 not subject to suspension; mandatory minimum of 90 days in jail not subject to suspension; no restrictive operator's license; interlock is not applicable; indefinite suspension of DL (however, one can petition after 5 years)

4th offense w/in 10 years: 1-5 years in prison or up to 12 months in jail and a $2,500.00 fine; mandatory fine of $1,000.00 not subject to suspension; mandatory minimum of 1 year in jail not subject to suspension; no restrictive driver's license; interlock device is not applicable; indefinite suspension of DL (however, one may petition after 5 years for reinstatement of DL)

Divorce lawyer in Norfolk, Va

People frequently ask me, "what makes someone a good divorce lawyer?" I generally answer that the lawyer should be empathetic, a good listener, and knowledgeable about the law. I also say that the divorce lawyer needs to be willing to go to court to protect the client.

The lawyers at Montagna & Montagna, P.C. have handled many divorce cases. We encourage our clients to call our office at 757-625-3500 whenever they have questions. We also appreciate clients who heed our advice and help us to help them. Finally, we reccomend that anyone who is looking for a dedicated, divorce attorney that they review our web site at www. montagnalaw.com.

Our web page has a wealth of helpful information. Additionally, potential clients can e-mail us questions, which we answer as quickly as possible.

If you are looking for a good divorce lawyer in Norfolk, Virginia, please visit our web site at www.montagnalaw.com or call us at 757-625-3500.

Wednesday, September 30, 2009

What do the attorneys at Montagna & Montagna, P.C. reccomend if one is arrested for DUI?

At the Norfolk law firm of Montagna & Montagna, P.C., we believe that if our client's refuse any field sobriety tests that the prosecution will have less damaging evidence to offer at trial. The general field tests that arresting officers use to determine if one is under the influence of alcohol are the following:

1. HGN
2. Walk and Turn
3. One Leg Stand

The performance results of the field tests by the defendant will be offered in testimony by the arresting officer. Additionally, an individual can be convicted of DUI even if his or her B.A.C. is less than .o8. Thus, if one does poorly on the field tests, he or she can expect the evidence to weigh heavily against them.

Generally, the officer will testify that a person has a strong odor of alcohol from their person, blood shot eyes, pale or flushed face, swaying when walking or standing, and slurred speech. However, if the implied consent law applies, one must generally submit to the breath test or blood test requested by the arresting officer. If the implied consent law is applicable and one unreasonably refuses to submit to the test offered by the officer, one can expect to face either a civil or criminal refusal charge.

At any rate, an individual charged with DUI would be well served calling the firm of Montagna & Montagna, P.C. at 757-625-3500. Furthermore, individuals are welcome to view the web site, montagnalaw.com, for additional information.

What should one do if arrested?

As a general rule, one should be polite and cooperative with the arresting officer. However, being polite and cooperative does not imply making a statement to the officer. One can provide the officer with identifying information (e.g. one's name and address) without making a statement to the officer that is incriminating. An individual should always request an attorney and should not even consider making a statement to the police without talking to an attorney.

The attorneys at Montagna & Montagna, P.C. are seasoned and trial tough. Thus, an individual arrested should call the firm at 757-625-3500. Also, the attorneys offer a wealth of information at their web site, www.montagnalaw.com.

An individual also should never voluntarily allow an officer to search their car or house without a warrant. Finally, an individual should never volunteer to take a polygraph or lie detector test.

Tuesday, September 29, 2009

Whitebread v. Commonwealth

Even though a drug dog alerted the officer to a vehicle and three passengers were searched but no drugs were recovered from them, the arresting officer did not have a particularized suspicion to search the defendant. Thus, the circuit court should have suppressed drugs found on defendant.
The arresting officer did have probable cause to search the vehicle. However, the arresting officer also testified that a positive alert did not mean that drugs were still in the vehicle.

Monday, September 28, 2009

Muhammad execution set for November

John Allen Muhammad's execution date has been set for November 10, 2009 for the Washington area attacks that left 10 people dead. Muhammad was sentenced to death for the murder of Dean Meyers. An attorney for Muhammad has stated that Muhammad will appeal to the United States Supreme Court and ask Governor Timothy M. Kaine for clemency.

Thursday, September 10, 2009

Carrol v. Commonwealth

In this case, The Va. Court of Appeals ruled that a defendant's probation was violated. Following his Alford plea to rape in 2007, the defendant had been ordered to complete sex offender treatment. However, the defendant continued to deny all accounts of the rape. In essence, the Court of Appeals ruled that Alford plea consequences are the same as a guilty plea.

Grant v. Vommonwealth

In this case, the Virginia Court of Appeals dismissed defendant's conviction for driving under the influence. Defendant's attorney filed a "Notice of Confrontation Rights Pursuant to Virginia Code Section 19.2-187" two months prior to Circuit Court trial. At trial, the prosecutor failed to have the breath test operator testify.
Over the defendant's objection, the Court admitted the certificate of analysis. The Court of Appeals essentially said the United States Supreme Court case of Melendez-Diaz was controlling. Thus, the Confrontation Clause of the United States Constitution had been violated.

Monday, August 17, 2009

Damon v. York

In this case, the Virginia Court of Appeals held that a woman who married a child's biological mother in Canada, lived with the mother for 21 months and who sought visitation with the child was not a "person with a legitimate interest" under Virginia law. The marital relationship was void under Virginia law. Thus, the denial of the petition of visitation was affirmed.

Thursday, July 30, 2009

Kellerman, Adm'r v. McDonough

In this case the Virginia supreme Court held that when a parent gives up supervision and care of their child to another parent or adult, who is willing to watch and supervise the child, the supervising caregiver must accomplish the duty with reasonable care. However, the Court also stated that the supervising adult is not an insurer of the child's safety.

Unfortunately, in this case, a parent allowed the supervised child to ride with a young male who had the reputation for being a reckless driver and in complete contradiction to the instructions of the parent of the deceased child who told the supervising adult not to allow his child to ride in a car being driven by young males. The supervising parent ignored the instructions and allowed the decedent to ride in a car driven by a young male. The young male was involved in an accident, and the supervised child was killed.

Thursday, July 23, 2009

Atkins v. Commonwealth

In this case, the Court of Appeals held that a defendant cannot be convicted for obstruction of justice based on his flight and having originally given a false name. The defendant's conviction under Section 18.2-460 is reversed.

Thursday, July 16, 2009

Jones v. Commonwealth

The Virginia Supreme Court stated, "A positive alert from a narcotics detection dog establishes probable cause to conduct a search of a vehicle and that the evidence seized during the search is admissible after a proper foundation has been laid to show that the dog was sufficiently trained to be reliable in detecting narcotics.""

Arizona v. Johnson

In Arizona v. Johnson, the United States Supreme Court stated, "In a traffic stop setting, the first Terry condition - a lawful investigatory stop - is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, ...the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." The Court further referenced that the police may frisk an armed passenger without any evidence of a crime.

Wednesday, July 15, 2009

John Grisham, the well known author, is preparing a new screen play. The author is focusing the screen play on the case of Michelle Moore-Bosco, who was raped and murdered in 1997. Four of the five defendants convicted in the case are now asserting that they are innocent and that the police coerced their confessions.

The story has garnered national attention. Furthermore, the author has stated he believes the "Norfolk Four" are innocent.

Thursday, July 9, 2009

Mwangi v. Commonwealth

A purported prior order from the general district court was never endorsed by the judge. The trial court could not prove the prior conviction during a trial for driving under the influence, third offense. The Supreme Court reverses the judgement and remands the case for trial on a a lesser included misdemeanor.

Commonwealth v. Fuller

In this Norfolk Circuit Court case, a vague affidavit did not support a warrant. Thus, the court suppressed the evidence seized from defendant's home.

Rudolph v. Commonwealth

The Supreme Court reverses a defendant's conviction for possession of marijuana with the intent to distribute. The police's stop of defendant's vehicle violated the defendant's Fourth Amendment rights. The fact that the defendant and a companion could be preparing to rob the gas station in an area where the police increased their presence due to recent robberies and break-ins did not equate to a reasonable suspicion.

Brown v. Commonwealth

In this case the Court of Appeals basically said that the best evidence rule only applies to writings. Thus, a store employee could testify that he observed the defendant on a surveillance video as the defendant stole crab legs.

Edwards v. Commonwealth

A purse is not a burglarious tool under Section 18.2-94 of the Code of Virginia, as amended. An en banc Court of Appeals reverses the trial courts guilty finding. The Court basically said that even though a woman emptied her purse to fill it with stolen merchandise, the purse itself is not a burglarious tool.

Menendez-Diaz v. Massachusetts

On June 25, 2009, the United States Supreme Court issued a ruling in the case of Menendez-Diaz v. Massachusetts. The Court held that generally, lab analysts must appear in court to offer testimony instead of submitting their findings in a sworn report. The holding may have a tremendous impact in upholding the defendant's right to hear witness testimony pursuant to the Confrontation Clause of the U.S. Constitution.