Wheeling Criminal Law Blog

New breath test device claims to measure THC

While several states around the country have legalized the use of marijuana for recreational purposes, West Virginia has not. However, last year a law was passed that legalized the use of pot for medicinal purposes and starting next summer, people will be able to actively use marijuana under the medicinal pot program. Knowing that this is on the horizon makes it reasonable that residents should understand that the potential for an impaired driving arrest may exist.

NPR recently reported that a company in California has developed a device designed to detect THC in a person's system. The purpose of this device is to allow officers to be able to test drivers for suspected impaired driving due to marijuana. Despite touting that the goal of the device is objective and accurate information capture, it is important to know that the person leading this effort is an emergency room doctor and member of law enforcement.

How can I get a conditional discharge?

Although restriction on the use of marijuana is easing in states throughout the U.S., possession can still land you in hot water, despite West Virginia’s adoption of medical-use marijuana last year. Unless you have a prescription, pot is still a controlled substance, and those found with it face the same legal problems as anyone caught with other illegal drugs. If you are a first-time offender, you may qualify for a conditional discharge of the offense, as long as the charge is for personal use and not for sale or distribution.

According to the state Legislature, you must not have any prior guilty pleas or convictions in West Virginia or anywhere else in the U.S. to qualify for this program. That includes any charges relating to pot, stimulants, depressants, hallucinogenic or narcotic drugs and marijuana, as well as drug paraphernalia, from bongs and roach clips to the very paper used to wrap or market drugs.

Stressful scenario leaves Parkersburg mom facing felony charges

Many in Wheeling may wonder what separates a felony charge from a misdemeanor. Some might guess that it is the intent behind the alleged crime that results in more serious charges, while others still might say that the outcome of a supposed offense makes that determination. While those factors may come into consideration in some cases, more often than not it may be the means of commission which determine whether one faces felony or misdemeanor charges. The intent behind an alleged offense (or even lack thereof) may ultimately be viewed as being irrelevant given the crime's supposed conditions. 

A Parkersburg woman is currently facing multiple felony charges after she admitted to authorities that she had injured her infant son. The 16-month-old was brought into a local hospital for treatment for chemical burns. When asked how the boy had sustained such injuries, the woman claimed that his four-year-old brother had accidently sprayed bleach in his face. Later, however, she admitted to being the one who had sprayed the bleach on the boy. She the child has been crying excessively, which in turn made her upset. She then left the boy in the crib for 20 minutes before returning to check on him. 

Implied consent laws for DUIs in West Virginia

West Virginia, similar to many other states, has implied consent laws when it comes to driving under the influence. These laws state that by getting behind the wheel of a vehicle, you implicitly agree to submit to any DUI tests if placed under arrest. A refusal to submit to such tests can result in automatic suspension of driver's license.

When you submit the initial application for a driver's license, there will be language in the document concerning the implied consent law, but like the fine print on any contract, it is all too easy to skim it without really understanding what it entails. 

Detailing the Miranda Warning

Popular media has likely taught most in Wheeling that if one is arrested, he or she should immediately be informed of his or her rights. Most could probably even recite the exact repetition of the words :"You have the right to remain silent...," etc. Yet even though most are familiar with this procedure, few may actually understand its purpose, or why it is even required at all. 

These rights are commonly known as "Miranda Rights" due to them arising from a case involving an individual of the same from which the U.S. Supreme Court established this particular legal standard. Technically referred to in legal terms as "the Miranda Warning," this standard requires that law enforcement officials inform detainees of their rights to protect themselves against self-incrimination. According to the Cornell Law School, these rights (with the aforementioned right to remain silent) include: 

  • The right to consult with an attorney
  • The right to have an attorney present during questioning
  • The right to have an attorney appointed (if indigent)

Felony vs. misdemeanor DUI

Any case in which you are charged with driving under the influence of drugs or alcohol in Wheeling should be taken seriously. Having said that, not every DUI offense is created equal. Many come to us here at the Scott C. Brown Law Office after having been arrested for DUI concerned that they could be facing jail time. While there are certainly serious consequences to can accompany any DUI conviction (some of which maay fall outside of the realm of criminal law), the penalties that you might face vary depending on what form of DUI you are charged with. This begs the question of when is a DUI a misdemeanor in West Virginia, and when is it a felony? 

In most cases, a DUI charge will be a misdemeanor. For example, if your current predicament represents your first offense, then you likely will only be charged with a misdemeanor. This is not true in every case, however. According to the West Virginia Legislature, if your alleged DUI resulted in serious bodily to or the death of another, you will be charged with a felony. The state does differentiate between "bodily harm" and "serious bodily harm" in this instance. "Serious bodily harm" is that which can produce: 

  • A substantial risk of death
  • Serious or prolonged disfigurement
  • Prolonged impaired health
  • Prolonged loss of or impairment to any bodily organ

Can you be arrested for failing a drug test?

Drug testing has become much more commonplace both in Wheeling and throughout the rest of the country. Public and private employers alike may use during the candidate screening process. Amateur and professional sporting and activity associations may rely on it to determine participant eligibility. If you are on parole or probation, you could be required to submit to it as condition of your release. No matter the circumstances requiring you to be drug tested, you may share the same question that many others have: can you be arrested for failing such a test? 

The answer to that question likely depends on the situation. If repeated drug testing is a requirement of your probation or parole, and you fail a test, then yes, you may be incarcerated (even if the offense you were convicted or accused of is not related to drug use or possession). In this scenario, however, it would have likely been explained to you prior to your being released that a failed drug test would probably result in you being arrested again. So in this case, it might not come as much of a shock. 

Understanding attorney-client privilege

When one has been accused of and arrested for a crime in Wheeling, he or she will need all of the help and support that is available in order to endure the ordeal that may be ahead. A major source of that assistance may come from his or her attorney. Thus, it is essential that an attorney and an accused share a trusting relationship. The principle of attorney client privilege allows for this. According to the American Bar Association, attorney-client privilege prohibits a lawyer from sharing any information revealed to him or her by a client related to that client's representation (without, that is, the client's consent). 

How far does such protection go? Most are surprised how far this privilege extends. Not only can an attorney not share information that a client shares with him or her confidence, but he or she is also barred from sharing anything he or she happens to learn in relation to a case, regardless of the source from which it originates. Even information that a lawyer learns after his or her client's formal proceedings have ended is protected under privilege. The protection itself is indefinite, surviving even a client's death. 

What is a RICO violation?

If you face federal charges in West Virginia for having allegedly committed a RICO violation, this is a serious matter indeed. Even though RICO violations come under the heading of white collar crimes, which people generally think of as less serious than violent crimes, in this case, you face substantial prison time and substantial monetary fines if the federal prosecutor convicts you.

RICO is the acronym that stands for the Racketeer Influenced and Corrupt Organization Act that Congress passed in 1970. The original intent of the legislators was to craft a body of statutes whereby the federal government could target, prosecute and convict Italian Mafia members. Since then, however, the RICO statutes have targeted other alleged white collar criminals as well, including the following:

  • Money launderers
  • Embezzlers
  • Counterfeiters
  • People engaged in bribery
  • People engaged in mail fraud
  • People engaged in racketeering

The rights restrictions that come with felonies

It goes without saying that a felony conviction in Wheeling brings with it a wide range of consequences. When clients facing felony charges come to see us here at The Scott C. Brown Law Office, their main concern is on the potential criminal penalties they may face. If you are also dealing with a felony arrest, your likely share the same worry (and for good reason). Yet even if you secure a favorable outcome to your case, having a felony on your record automatically means that you forfeit certain rights. 

You may have already known a felony conviction can keep you from owning a firearm in the future. Yet there are a plethora of other rights that you may lose. The can include: 

  • The right to vote
  • The right to travel internationally 
  • The right to serve on a jury
  • The right to parental benefits 
  • The right to social benefits 
  • The right to work in certain fields

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