The Full Court Press

Some Cases Handled by Montagna & Montagna, P.C.

2010-10-26T10:44:00.000-07:00

Although no case is identical and theses examples are not guarantees of all dispositions, we have handled thousands of cases at Montagna & Montagna, P.C. Some of the cases handled:
1. DUI with .24 B.A.C.: dismissed
2. First degree murder reduced to manslaughter
3. Client hurt on bus: judgment for over $240,000.00
4. Reckless driving 83 mph in 55 mph zone reduced to defective equipment
5. Felony possession with intent to distribute drugs nolle prosequi (dismissed without prejudice)
after filing motion to suppress
6. Rape and sodomy charges: client plead to misdemeanor assault and battery
7. Robbery and use of firearm charges dismissed
8. DUI reduced to reckless driving
9. Robbery charge dismissed
10. Custody of child awarded to client (father)

Lawyer disbarred for $450,000.00 fee diversion

2010-10-25T11:58:00.000-07:00

A lawyer has surrendered her bar license after admitting that she misappropriated $450,000.00. The lawyer funneled money from the Social Security Administration to herself without paying her firm.

How do I get information about my DUI

2010-10-21T07:20:00.000-07:00

Under Virginia law, one is limited in the amount of information that one can obtain after an arrest for DUI. In the General District Court, discoverable information is limited to statements made to the police and the defendant's prior criminal record. However, the counsel for the defendant can file a request for a copy of the certificate of analysis, a copy of the criminal complaint, a copy of the Sworn Report for DUI Arrest, or request the issuance of a subpoena duces tecum. Furthermore, counsel can obtain forensic information for the EC/IR II Test Equipment Instrument by sending a request to Ms. Alka Lohman, Department of Forensic Science- Breath Alcohol, pursuant to the Virginia Freedom of Information Act.

ABC's of DUI

2010-10-19T10:57:00.000-07:00

According to the National Highway Traffic Safety Administration:

1. Does the type of alcohol you drink affect your BAC (blood alcohol concentration)?
No. a typical drink equals about half an ounce of alcohol (one shot of distilled spirits, one 5
ounce glass of wine, one 12 ounce beer)
2. What affects your BAC?
The number of drinks, how fast you drink, your gender, your weight, and food in your
stomach
3. How will you know when you are impaired?
.02%: some loss of judgment, relaxation, slight body warmth, altered mood
.05%: exaggerated behavior, may have loss of small muscle control, impaired
judgment, usually good feeling, lowered alertness, release of inhibition
.08%: muscle coordination becomes poor, harder to detect danger, judgment, self
control, reasoning, and memory are impaired
.10%: clear deterioration of reaction time and control, vomiting may occur, major
loss of balance

Questions to think about when hiring a lawyer

2010-10-19T10:28:00.000-07:00

1. Did the lawyer look me in the eye when he greeted me and shook my hand
2. Did the lawyer appear interested in my case
3. Did the lawyer explain the pros and cons of my case clearly and concisely
4. Did the lawyer seem genuine and honest
5. Did the lawyer ask if I had any questions
6. Did the lawyer invite me to call him with any questions that I might have in the future
7. Did the lawyer appear knowledgeable about my case
8. Did the lawyer take notes and actually listen to me
9. Did the lawyer invite me to make follow up appointments
10. Did the lawyer appear confident and in control
11. Did the lawyer have other files in his office, which reflects the demand for his services
12. Did the lawyer quote me a fair price, because you frequently get what you pay
13. Did the lawyer ask me to refer my friends and family to him
14. Did the lawyer express a desire to foster a future relationship
15. Did the lawyer send me a follow up letter

The lawyers at Montagna & Montagna, P.C. strive to have you answer yes to the above questions. If the lawyers that you have contacted do not make you feel comfortable and you cannot answer yes to most of these questions, call us today at 757-625-3500 or email us at monatagnalw@yahoo.com. We appreciate you and your business. We also know that you have a lot of choices in selecting a lawyer and that by hiring us you are placing your trust in us. For that, we say thank you!!!

The 10 Legal Commandments

2010-10-15T08:44:00.000-07:00

TOP 10 LEGAL COMMANDMENTS

1. Thou shall not lie to your lawyer, unless you want an absolutely horrific outcome
2. Thou shall make an appointment with your lawyer immediately when requested
by your lawyer, unless you really want to irritate him and want him to be
unprepared
3. Thou shall dress appropriately for court, unless you want the judge or jury not to
take you seriously
4. Thou shall come to court on time, unless you want your legal woes compounded
5. Thou shall answer the court the with "yes Judge" or "no Judge," unless you want the Court
to think you are rude and unworthy of the Court's respect
6. Thou shall not argue with the opposing witnesses in Court or in the hallway outside
of court, unless you have a strong desire to eat bologna sandwiches for a couple of days
7. Thou shall not make a statement to your arresting officer, unless you want to insure
that you are found guilty
8. Thou shall testify truthfully in court, unless you want to be caught in a lie and lose
all credibility in the Court's eyes
9. Thou shall not address your lawyer by his last name alone, unless you want your
lawyer to think you have no social skills
10. Thou shall immediately call the law firm of Montagna & Montagna, P.C. at 757-625-3500
to schedule an appointment to help you with all of your legal needs

My Favorite Lawyer Jokes

2010-10-11T16:34:00.000-07:00

1. How many lawyers does it take to screw in a light bulb?
Answer: 3; one to hold the ladder, one to screw in the light bulb, and one to sue the ladder
manufacturer

2. A lawyer and a doctor were at a cocktail party when a patient of the doctor's came up to
him and said, "Doctor, I have a terrible headache." The doctor said, "take an aspirin and you
will be fine." After the patient left, the doctor asked the lawyer whether he should send the
patient a bill. The lawyer said, "Absolutely, I always charge for advice."
The next day the doctor received a bill from the lawyer.

Virginia Beach DUI Lawyer

2010-10-07T10:48:00.000-07:00

Do you need a tough, dedicated DUI lawyer for trial in Virgina Beach? Look no further than the law firm of Montagna & Montagna, P.C. We have won more DUI cases than some lawyers have even tried. In fact, while we do not guarantee results, we do guarantee our best efforts.

As a commercial on television suggests before becoming a customer, ask your friends about the company. We also strongly suggest that before you hire us that you ask your friends and neighbors about the Montagnas. Since we have over 62 years of combined experience, there is a good chance that we have represented a friend, a neighbor, or a relative.

We have extensive knowledge of field tests and breathalyzers. We also have appeared in front of the Virginia Beach judges hundreds, if not thousands, of times. Now, would you rather have a lawyer who says he is good or a lawyer that your friends, neighbors, or family members say is good.

If you want results and you want to know that your lawyer is a fighter and not a lover (it's a joke), call our firm today. Our number is 757-625-3500.

Why hire a lawyer who thinks outside of the box

2010-10-06T11:42:00.000-07:00

Do you want a lawyer who thinks outside of the box? Do you want a lawyer who can think quickly on his feet? Do you want a lawyer who places the best interest of his client ahead of himself? Do you want a lawyer who provides excellent representation for a fair price?

If you answered yes to any of these questions or all of theses questions, then I am the lawyer for you. My partner and I believe that these days require novel approaches and ideas in providing excellent representation in a criminal case or civil matter.
Many lawyers are concerned about their fee first and the client second. We are most concerned for our client.

A lawyer who thinks outside of the box exemplifies intelligence, foresight, and problem solving skills. Many times, an idea that is outside the box of conventional thinking can keep the client out of jail, allow the judge to formulate a disposition that enables a client to avoid a conviction, or allows fair and just compensation for an injured party.

If you need a quick thinking, dynamic attorney in Norfolk, Virginia Beach or anywhere in Hampton Roads, Virginia call my firm, Montagna & Montagna, P.C., at 757-625-3500. I promise that you will be happy that you did.

SWANSON V. COMMONEWEALTH

2010-10-06T11:04:00.000-07:00

In this case, the Virginia Court of Appeals held that the trial court was correct in sustaining an objection on hearsay grounds to a question posed by defense counsel. The Virginia Court of Appeals ruled that the Commonwealth did not open the door to allowing the hearsay statement. The Virginia Court of Appeals distinguished this case from the Jones case.

AFSAW V. COMMONWEALTH

2010-10-06T11:02:00.000-07:00

In this case, the Virginia Court of Appeals held that the trial court erred in denying defendant's motion for a transcript of his preliminary hearing.

MIDKIFF V. COMMONWEALTH

2010-10-06T11:00:00.000-07:00

In this case, the Virginia Supreme Court held that the best evidence rule only applies to written documents and that video recordings are not covered by the rule.

BERGHUIS V. THOMPKINS

2010-10-06T10:57:00.000-07:00

In this case, the United States Supreme Court ruled that once a defendant has been given his Miranda warnings then the police can interrogate the defendant without an affirmative waiver.

Gaming Cafes

2010-09-30T06:34:00.000-07:00

The City of Virginia Beach apparently is targeting gaming cafes. Virginia Beach police have raided 11 gaming centers and have seized 400 computers. The Commonwealth Attorney, Harvey Bryant, has opined that the cafes are illegal because the games do not involve skill and that rewards can be won. No charges have been filed to date.

DUI Lawyer Virginia Beach, VA

2010-06-30T10:27:00.000-07:00

Do you need a good DUI lawyer for Virginia Beach, Virginia? Call Montagna & Montagna, P.C., today. Our phone number is 757-625-3500 and our web page is www.montagnalaw.com.

Our lawyers are exceptionally familiar with all the laws involving a DUI. Our lawyers will advise you about the implied consent law, blood alcohol content, possible mandatory jail time, and the filed sobriety tests.

It is important to know that all tests give by a police office to someone who has been stopped for a possible DUI have not been approved by the National Highway Traffic Safety Administration. The three approved tests are walk and turn, one leg stand, and horizontal gaze nystagmus. Furthermore, the purposes of the field tests are to assist police officers in recognizing clues exhibited by the motorist that may predict alcohol impairment.

If you need a great traffic lawyer for a case in Virginia Beach, Norfolk, or anywhere in Virginia, call our firm. We will provide you with a free 30 minute consultation. Additionally, we welcome all military personnel and civilians as clients.

Selecting a traffic lawyer for Virginia Beach, Virginia

2010-06-30T08:54:00.000-07:00

People are always asking, "How do you select a good lawyer for a traffic case in Virginia Beach, Virginia?" Some people select a lawyer for traffic court on word of mouth referrals. Other people select a lawyer from the phone book. Finally, some people select a lawyer from the internet.

It is important that the lawyer you select is known by the judges and the clerks. Furthermore, it is important that your lawyer has extensive experience, is dedicated to you, is hard working, and is successful.

At Montagna & Montagna, P.C., our lawyers have extensive experience, are dedicated to our clients, and are dependable. Finally, our lawyers are successful.

Anthony L. Montagna, III and Anthony L. Montagna, Jr. have tried countless DUI, reckless driving, speeding, and other traffic charges in the Virgina Beach courts. We have represented countless, satisfied clients, who recommend us to their friends and family.

Our lawyers are trial tough and fight for our clients in Virginia Beach, Virginia and all over Virginia.

When you hire a lawyer from Montagna & Montagn, P.C., you can be confident in knowing that we are highly regarded in the community, have a strong presence in the phone book and on the internet, and are well known by the judges and clerk's in the Virginia Beach traffic courts.

If you have questions, we have answers. Give us a call today at 757-625-3500 or visit us on the web at www.montagnalaw.com.

Presumptions from alcohol or drug content of blood for DUI cases

2010-04-01T11:24:00.000-07:00

Section 18.2-269 of the Code of Virginia, as amended, indicates:
"A. In any prosecution for a violation of Section 18.2-36.1 or clause (ii),(iii), or (iv) of Section 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 Sections 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
(1) If there was at the time .05 percent or less by weight by
volume of alcohol in the accused'd blood or .05 grams or
less per 210 liters of the accused'd 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 .05 percent but less
than .08 percent by weight by volume of alcohol in the
accused's blood or .05 grams but less than .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 .08 percent or more by weight by
volume of alcohol in the accused'd blood or .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 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) .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 Section 46.2-341.24."

Man pleads guilty in two DUI related deaths

2010-04-01T10:32:00.000-07:00

A man pleaded guilty today in the Norfolk Circuit Court to two counts of involuntary manslaughter. The defendant was involved in a two car accident at the intersection of Military Highway and Johnstons Road in the City of Norfolk, Virginia. Additionally, the defendant had a blood alcohol level of .18 percent, which is more than two times the legal limit.
The victims were 20 and 21 years old. Additionally, the victims' vehicle was struck by the defendant after he ran a red light.

DUI and Divided Attention Tests

2010-03-30T10:27:00.000-07:00

The lawyers at Montagna & Montagna, P.C. practice extensively in Norfolk, Virginia Beach, Portsmouth, and the other cities in Hampton Roads. Thus, we are very familiar with divided attention tests, which are frequently used by the police before placing a person under arrest for DUI.
People, who are sober, may generally be able to focus are multiple tasks simultaneously. However, people, who are impaired by alcohol or drugs, have a difficult time dividing their attention to accomplish multiple tasks at once. Thus, police will utilize divided attention tests to determine whether an individual exhibits clues of driving under the influence of alcohol or drugs.
The most effective divided attention tests require the same physical and mental capabilities that an individual uses while driving. For example, the tests judge information processing, short term memory and judgment and decision making, balance, vision, muscle control, coordination, and reactions to stimuli.
Two popular tests approved by the National Highway Safety Administration (NHTSA) are the walk and turn test and the one leg stand test.
When a police officer has an individual perform the walk and turn test, the officer is looking for eight clues of possible intoxication. The eight clues are lack of balance during instruction stage, beginning the test too soon, stopping while walking, heel to toe more than one inch apart, steps off the line, using one's arms for balance, loss of balance on turns or making a turn incorrectly, and an incorrect number of steps.
The one leg stand test requires an individual to divide his or her attention between two stages, the instruction stage and the balance and counting stage. An individual who has a hard time counting or maintaining balance may be impaired.
Frequently, police officers will ask an individual, who is suspected of driving while intoxicated, to perform other field tests. However, many of the tests have not been approved by NHTSA.
A police officer may ask someone to recite the alphabet from A to Z or from A to K. Other officers will ask someone to recite the alphabet backwards. Additionally, some officers will have someone touch their nose with their index finger or touch their thumb to all the fingers on the same hand as the thumb. The defendant's attorney should vigorously cross examine the police officer about these non approved tests.
The lawyers at Montagna & Montagna, P.C. know how to cross examine police officers involved with a DUI arrest. We welcome the opportunity to discuss your case with us and to assist you in preparing a zealous and complete defense.

Arizona v. Gant

2010-03-29T11:06:00.000-07:00

As the Supreme Court of the United States held, "Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest."

Examples of Jurisdiction and Modification of Child Support Orders

2010-03-29T08:07:00.000-07:00

A. Original order entered in VA with noncustodial parent in VA and child and custodial parent moving out of state: VA only state than can modify and enforce order

B. Original order entered in VA and all parties have moved out of state: VA loses ability to modify order but it can continue to enforce the order until modified by other state

C. Order entered in another state, with custodial parent and child in Virginia and non custodial parent out of state:
1. Custodial parent cannot modify order in VA and must got to noncustodial parent's state.
2. Noncustodial parent could modify order in VA

Roseborough v. Commonwealth

2010-02-22T11:12:00.000-08:00

In this case, the Virginia Court of Appeals upheld the defendant's conviction for DUI. Additionally, the defendant was involved in an accident on a private road in an apartment complex. Furthermore, the defendant offered to submit to a breathalyzer before the officer could read the implied consent law. Finally, the officer did not see the defendant operate his vehicle, but nevertheless, the officer arrested the defendant.

Approved breath test devices in Virginia

2010-02-03T11:52:00.000-08:00

In Virginia, two breath testing machines are authorized to be used in determining if someone has operated their vehicle under the influence of alcohol. The older machine, Intoxilyzer 5000, uses infrared technology to analyze alcohol content. The newer machine, Intox EC/IR II, uses both infrared and electrochemical technology to analyze alcohol content.

With the Intox EC/IR II, an infrared beam passes over the collected sample. Thereafter, a portion of the breath is introduced to the fuel cell where the result is calculated. The infrared sensor is also used to determine if there is any residual alcohol in the mouth.

Virginia also authorizes numerous devices to be used in preliminary breath tests. The preliminary test results are generally not admissible at trial.

A DUI can affect military men and women differently than civilians.

2010-02-02T16:59:00.000-08:00

If you are charged with a DUI in Norfolk, Virginia Beach or other city in Hampton Roads and you are in the military, you can face different consequences than if you are a civilian. Even if you are not convicted, a military person can be disciplined by the military. Additionally, a military person could face a cut in pay, reduction in pay grade or even separation.

At the Norfolk, VA law firm of Montagna & Montagna, P.C., we can help you with the process of dealing with a DUI. We understand that your family relies heavily on you and we want to make sure that you and your family know what you are facing and what can happen to you.

Please feel free to call us at 757-625-3500 to schedule a free consultation. We will help you through this difficult time.

I was charged with reckless driving. How do I find a great lawyer?

2010-01-26T17:11:00.000-08:00

It is important to know that reckless driving is a Class I misedemanor in Virginia. If you are convicted, you face a large fine, possible jail, suspension of your operator's license, and a large increase in insurance rates.

A great lawyer is someone who cares about his clients. A great lawyer thinks of his clients as individuals and not as a source of money in his pocket.

If you allow me, Anthony L. Montagna, III, the privilege of representing you, I will treat you like I would like my family members to be treated by a lawyer. I will return phone calls and strive to answer your questions. When your case is completed, I want you to think you received exceptional representation and great value for the money you paid in hiring me.

If you need a reckless driving lawyer in Norfolk, Virginia Beach or any place in Virginia, call Montagna & Montagna, P.C. As a law firm with lawyers who have over 60 years of combined legal experience, we have handled many reckless driving cases. My firm has great lawyers who treat people great.

My wife was wrongly diagnosed. What do I?

2010-01-26T16:56:00.000-08:00

If you think you or a family member has a medical malpractice case, you should call me, Anthony L. Montagna, III, a medical malpractice lawyer in Norfolk, Virginia. I will advise you to obtain all medical records that support your contention that you or a family member was a victim of medical malpractice. It is important to understand that the fact that a mistake occurred does not automatically create a cause of action against the doctor.

To succeed in a medical malpractice case, we must prove that the doctor breached the standard of care. As an experienced lawyer, I will help to ensure that your case is reviewed by knowledgeable, medical personnel.

If you have any questions, please feel free to contact my firm, Montagna & Montagna, P.C. We are experienced lawyers, who practice in Norfolk, Virginia Beach, and all of Hampton Roads, Virginia. Our telephone number is 757-625-3500.

I was hurt by a drunk driver. What should I do?

2010-01-26T12:41:00.000-08:00

First, you should contact me, Anthony Montagna, III, a personal injury lawyer. Since you are hurt, you should immediately go to the hospital for treatment and plan to follow up with your personal physician if instructed by the hospital staff.

As an experienced personal injury lawyer in Norfolk, Virginia, I can help you receive fair compensation for your injuries. You may be entitled to punitive damages, which are intended to punish the defendant for driving drunk. Thus, it is important to receive guidance from an experienced lawyer who serves injured parties in Norfolk, Virginia Beach, and Hampton Roads.

In any case, you should avoid speaking to the insurance adjustor, except for allowing him to inspect and fix your vehicle. I would welcome the opportunity to help and serve you.

Wilder v. Commonwealth (911 Tape- Hearsay - Confrontation Clause)

2010-01-26T12:33:00.000-08:00

In this case, The Virginia Court of Appeals rules that 911 tapes should not be allowed into evidence unless the person making the statement is facing an on going emergency. The basis for the holding is the admission of the tape would violate the defendant's Sixth Amendment right to confront the witness.

Brown v. Commonwealth (Juvenile - Mandatory Minimum Sentence)

2010-01-26T12:26:00.000-08:00

In this case, The Virginia Supreme Court rules effectively that when a juvenile is tried as an adult and receives a mandatory minimum sentence (e.g. use of firearm during commission of a felony) that the trial court cannot sentence the defendant as a juvenile offender. The Court concurred with the Virginia Court of Appeals in stating that the circuit court should have followed Section 16.1-272(A)(1) instead of Section 16.1-272(A)(2).

Franks v. Delaware, 438 U.S. 154 (1978)

2010-01-26T12:18:00.001-08:00

This case lays the foundation for courts in determining the validity of an affidavit in support of a search warrant. In effect, the Court ruled that the defendant must establish the requisite substantial preliminary showing that the search warrant affidavit contains deliberately false or recklessly false statements or omissions required in support of probable cause.

Jones v. Commonwealth (DUI- Blood Test Refusal- Evidence of Guilt)

2010-01-26T12:11:00.000-08:00

In this case, The Virginia Supreme Court ruled that the defendant's refusal to perform field sobriety tests cannot be used as evidence of guilt. However, the refusal when accompanied with other indicia of of alcohol consumption and its effects on the defendant may be used in reviewing probable cause to arrest.

Anderson v. Commonwealth (Miranda warning- public safety exception-loaded gun

2010-01-26T11:36:00.000-08:00

In this case, the Virginia Supreme Court ruled that the public safety exception to the Miranda warnings justified admitting the defendant's statement about whether the gun was loaded in response to officer's questions.

Wills and Trusts

2010-01-26T11:24:00.000-08:00

In Antisdel v. Ashby, The Virginia Supreme Court ruled that the administrator of her son's estate who was only appointed for the purpose of bringing a wrongful death suit did not have standing to pursue a personal injury survival claim on behalf of the estate. However, the language under Section 64.1-75.1 of the Code of Virginia, as amended, allows the clerk of the circuit court to appoint an administrator to pursue personal injury and wrongful death actions.

In this case, the administrator wrongfully asserts that she was entitled to pursue alternative claims, when she was not appointed with that power.

What is Uninsured and Underinsured Motorist Coverage?

2010-01-21T07:17:00.000-08:00

Pursuant to Section 38.2-2206 (B) of the Code of Virginia, as amended, '"Uninsured motor vehicle " means a motor vehicle for which (i) there is no bodily injury liability insurance and property damage liability insurance in the amounts specified by Section46.2-472, (ii) there is such insurance but the insurer writing the insurance denies coverage for any reason whatsoever, including failure or refusal of the insured to cooperate with insurer, (iii) there is no bond or deposit of money or securities in lieu of insurance, (iv) the owner of a motor vehicle has not qualified as a self-insurer under the provisions of section 46.2-368, or (v) the owner or operator of the vehicle is immune from liability for negligence under the laws of the Commonwealth or the United states, in which case the provisions of subsection F shall apply and the action shall continue against the insurer. A motor vehicle shall be deemed uninsured if its owner or operator is unknown."

Also pursuant to Section 38.2 (B) of the Code of Virginia as amended, "A motor vehicle is "underinsured" when, and to the extent that, the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and available for payment for such bodily injury or property damage, including all bonds or deposits of money or securities made pursuant to Article 15 (Section 46.2-435 et. seq.) of Chapter 3 of Title 46.2, is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the vehicle."

In a nut shell, an uninsured motor vehicle means the vehicle in which the defendant is driving does not have available coverage to compensate a person in an auto accident because of statutory reasons, denial of coverage by the defendant's insurance company, or no insurance coverage at all. Additionally, an underinsured vehicle means the defendant's vehicle coverage is less than the available coverage to the plaintiff from the vehicle he is operating.

Lofgren v. Commonwealth

2009-11-09T11:21:00.000-08:00

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

2009-11-09T10:53:00.000-08:00

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.

Child Support

2009-10-06T11:05:00.000-07:00

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.

DUI Sentencing

2009-10-05T10:43:00.000-07:00

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

2009-10-05T08:41:00.001-07:00

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.

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

2009-09-30T12:08:00.000-07:00

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?

2009-09-30T11:58:00.000-07:00

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.

Whitebread v. Commonwealth

2009-09-29T10:57:00.000-07:00

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.

Muhammad execution set for November

2009-09-28T12:37:00.000-07:00

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.

Carrol v. Commonwealth

2009-09-10T11:48:00.000-07:00

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

2009-09-10T11:35:00.000-07:00

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.

Damon v. York

2009-08-17T10:37:00.000-07:00

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.

Kellerman, Adm'r v. McDonough

2009-07-30T09:37:00.000-07:00

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.

Atkins v. Commonwealth

2009-07-23T13:56:00.000-07:00

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.

Jones v. Commonwealth

2009-07-16T06:41:00.000-07:00

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

2009-07-16T06:22:00.000-07:00

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.

2009-07-15T13:08:00.000-07:00

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.

Mwangi v. Commonwealth

2009-07-09T12:26:00.000-07:00

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

2009-07-09T12:24:00.000-07:00

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

2009-07-09T12:18:00.000-07:00

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

2009-07-09T12:14:00.000-07:00

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

2009-07-09T12:10:00.000-07:00

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

2009-07-09T11:54:00.000-07:00

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.

2006-12-15T12:36:00.001-08:00

Does anyone have any good advice on how to beat a DUI?

2006-12-05T12:35:00.000-08:00

Check out http://montagnalaw.com

DUI Defense

2006-12-05T12:27:00.000-08:00

Always make sure the certificate of analysis is filed 7 days before trial in VA.

DUI Defense

2006-12-04T15:57:00.000-08:00

Always have a lawyer to represent you. Never take the chance that you will reprensent yourself and have a fool for a client.