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.
Monday, November 9, 2009
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.
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)
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.
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.
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.
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.
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