FAQ: Traffic / Reckless Driving

FAQ (Traffic): I got a reckless driving ticket in Virginia, do I really need a lawyer?

This is a very broad question and we can only answer it with the most typical lawyer answer you can think of.... it depends. Reckless driving in Virginia is a Class 1 criminal misdemeanor, not a simple traffic infraction. The two most common reckless driving ticket offenses stem from either (a) driving in excess of 85mph or (b) driving in excess of 20 mph over the posted speed limit.

Even in Southwest Virginia (areas such as Roanoke County, Roanoke City, Montgomery County, Pulaski County, Botetourt County, Lexington/Rockbridge County, Carroll County, etc.), no two courts handle these charges in the same manner. These charges are highly specific to the actual speed you were traveling, your interactions with the officer, your driving record (even if you've had previous tickets dismissed), etc. We hate to say call us, but really the best advice we can give you will only come after speaking with you and understanding your specific circumstances. It’s possible that you could go to court yourself and come away with only a fine (and a traffic misdemeanor!), but you could also be risk time in jail. As a Class 1 misdemeanor, reckless driving charges can carry up to 12 months in jail, 12 months licenses suspension, and up to $2,500 in fines (PLUS court costs!!). Call us today 540-339-7775 for a free case evaluation. We'll talk to you soon!

FAQ: Landlord Tenant

image contains moving boxes

What happens when a tenant has been evicted? When can a landlord remove a tenant's belongings?

A landlord can remove a tenant’s belongings after just 24 hours, if the landlord has given the proper notice. Once the eviction process has gone through the proper legal proceedings, and the appeal window has closed, the landlord may dispose of the tenant’s abandoned personal property 24 hours after the landlord has regained possession of the residence. The tenant has the right to remove their personal property from the residence at reasonable times during that 24-hour period after an eviction.

When the 24 hours has passed, any personal property not claimed may be disposed of by the landlord as the landlord sees fit. If the landlord receives any funds from any sale of such remaining property, the landlord shall pay such funds to the account of the tenant and apply those funds to any amounts due to the landlord by the tenant, including reasonable costs incurred by the landlord in selling or storing the property. If any excess funds are remaining they shall be treated as a security deposit under applicable law.

You can learn more about this in Virginia Code §55.1-12.54.

Don’t hesitate to contact us (540-339-7775) with questions about this process, including what notices a landlord is required to give before personal property is disposed of.

Battle over Confederate Monuments takes a Macabre Turn and other Recent Decision of the Court of Appeals

Elwood Lewis Thomas v. Commonwealth of Virginia started life on March 12, 2024 as an unpublished decision, and the link on the Court’s website will take you to that opinion, which included a partial dissent by Judge Raphael disagreeing with that portion of the majority opinion (Sr. Judge Clements joined by Judge Causey) which reversed six convictions for various sexual assault crimes by Thomas against a child. On September 17, 2024, the Court released an en banc decision by Judge Raphael, joined by Chief Judge Decker, and Judges Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Friedman, Raphael, Lorish, Callins and Frucci, affirming the convictions, with Judges Causey and Chaney dissenting – Judge White did not sit. For reasons which I can but speculate, the text of the en banc decision is not available on the Court’s website. I believe the cause is likely to be that the file that is available was supposed to have been revised to include the new opinion as well as the order granting the rehearing and the original opinion, but that somewhere in the process this either was not done or the old version of the file was mistakenly used after the new one was created. The text of the en banc is available on Fast Case and I have downloaded it and made it available to my readers. Perhaps someone at the Court will see this and see that the error is corrected.

The principal issue was whether the circuit court erred in not suppressing a confession which Thomas maintained was the result of an involuntary Miranda waiver. The statement was made during a conversation between two detectives and Thomas after he had been picked up by his probation officer and was told to “answer their questions.” Thomas argued that his subsequent waiver of Miranda was not voluntary because he had been directed by his probation officer to cooperate with the police. The majority found that under the totality of the circumstances, Thomas’ waiver was not involuntary. The partial dissent would have found that the context was sufficient to call into question the voluntariness of the waiver.

Additional issues in the appeal related to evidentiary issued which the Court resolved unanimously on the standard of review.

Ryan Douglas Roberts v. Commonwealth of Virginia (09/17/2024) involves a challenge to a warrantless search. Roberts was asleep in his car in a parking lot where there had been prior overdose incidents.  As an officer approached the vehicle, he could see that Roberts was armed, with his hand resting on a pistol tucked into his waistband.  The officer tapped on the window, which roused Roberts, who appeared dazed and intoxicated. The officer advise that he was going to open the door to secure the weapon out of a concern for safety. As he did so, he observed a clear bag partially protruding from Robert’s pants pocket contain what appeared to be drugs.

Judge Raphael, joined by Chief Judge Decker and Judge White, uphold the search as legitimate under the public safety/caretaker exception. While I have no truck with the result, I think that the search was valid under more general principles of adequate probable cause, namely that Roberts was found unconscious in a known drug use area while armed.  Clearly the gun was in plain view and the drugs were immediately discovered in plain view while the weapon was being secured.

Leonard W. Cowherd, et al. v. City of Richmond (9/17/2024) is an interesting twist on the controversy surrounding the removal of monuments to Confederate soldiers. In this case, the soldier is General A.P. Hill, and the monument in question once covered the mortal remains of the General, who died seven days before Lee’s surrender, during the final days of the Siege of Petersburg. Hill was initially buried in a family plot, but his remains were subsequently moved first to Hollywood Cemetery in Richmond, then to land in Henrico County, subsequently annexed by Richmond, on what is now the Lewis-Ginter Botanical Gardens.

When the City determined to remove the monument, Hill’s descendants filed this suit claiming that they, not the City, had the superior right to determine where the monument in would be moved. The circuit ruled that the City’s maintenance of the monument for over 100 years gave it the superior claim which the Hill descendants, as the plaintiffs, had not overcome. The Court of Appeals, Judge Callins joined by Judge Beales and Sr. Judge Clement affirmed that decision.

I am informed by a reader that the remains are now in a cemetery in Culpeper (this was not made clear in the opinion and I had assumed they remained in the monument). The monument, presumably will be turned over by the City to the Black History Museum and Cultural Center as was its original plan.