“I’ve been clean and sober for 8 years, my parents sent me to rehab after I graduated  from high school, college, and law school. Don’t ever give up on your kids.” These were the words spoken to me by the prosecutor in the City of Richmond as we left the court room after my son’s criminal case for possession almost 10 years ago. My son has found his way and remained clean and sober since that time.

I often find myself working with families in the same situation our family found itself in December 2002. One of our babies was in jail with several criminal charges pending. What to do?  How can we best help our child?  It is one of a parent’s worst nightmares.

You have the full range of emotions, anger, fear, shame, guilt, blame. You go back and forth between wanted to kill them or give them a hug. Neither extreme is right or wrong. Both are real.

So how can this happen to a good family who has done everything they can to properly love and raise their children?   If I had those answers I would have my own TV show and be the next Dr. Phil. What I do know without question is that our children will make bad choices. Before you say not mine, realize they already have made bad choices, you just don’t know it. The bad choices vary in degrees but all make them. Secondly know we are in the middle of an epidemic of substance abuse in our country. A recent study from Columbia University found that 60% of incoming college freshman nationally have some form of process addiction. This includes not only the usual suspects of drugs and alcohol, but also eating disorders, gambling and a multitude of other pain and stress management behaviors.

Playing the shame or blame game is not productive. I spend a lot of time in many consults counseling the parents on action steps which are productive and helpful in dealing with the family crisis resulting from the arrest. The approach will vary from a hug to a kick in the butt. Every criminal case, like every child, is different. The families need to strike a balance between only carrots or only sticks. Both are needed in proper amounts. We did not bond our son out of the Richmond City jail until he agreed to go to inpatient rehab. That was a very difficult choice but it was the right one. His experience in the Richmond City jail gave him the right motivation to do the hard work of rehabilitation.

Every parent wants to take full credit for the good things their children do. Taking full blame and having the shame and guilt for the poor choices is the other side of the same coin. Both are wrong. Granted the bundle of joy has your DNA but they also have free will to make choices. As a result parents should not take too much credit, nor likewise take too much blame.

I hope and pray no one reading this will experience the trauma of having your son or daughter make the kind of bad choice that lands them in jail with criminal charges. But if you do know that you are not unique. The majority of my criminal clients from Chesterfield, Henrico, Richmond or Powhatan are young people from good families who have made bad choices.

Even good people and their children sometimes find themselves having difficult discussions with the police, or worse under arrest.  So what to do?  Let’s look at some of the more common situations that occur with DUI.

What should I do when I see the flashing lights on the car behind me? 

Carefully pull over and be polite in your interactions with the officer. If you have been drinking or high, things will only get worse if you act like a jerk. Judges always ask the officers how the person acted.  It is much better when the officer says the person was polite and cooperative. That is also a critical factor when I am trying to get the best deal possible with the prosecutor.  He or she always speaks to the police officer before committing to any plea agreement.

On a preventive note, if you are going to be out drinking after 11:30 p.m., have a designated driver. The designated driver should have nothing at all to drink. I have had too many clients who said they didn’t have that much to drink because they were the designated driver yet blew a .11 on the breath test.  He or she thought being the designated driver would earn a break. Granted, the client was less impaired than the friends being driven, but he or she was still impaired. There are no points for good intentions if you are driving impaired.

The police look for any reason to pull you from 11:30 p.m. to daybreak. They know at that time of night there is an 80% chance the driver is impaired. That is why they will look for expired tag and inspection stickers, or burned-out lights. They simply want probable cause for a stop. Once an officer has stopped you and smells alcohol or pot in the car, he or she can begin the field sobriety test and other things needed to gather the evidence for an arrest.

Another urban myth is that you can beat the charge if you refuse to take the blood or breathe test, but these are not required for a conviction. If you fail the field sobriety test, you will be convicted. If you refuse to take the test, you will be charged, and the charge carries penalties of up to 6 months in jail, a large fine, and a suspended operator’s license.

Should I agree to a search of my car? 

There is no good answer that question. If you are asking the question, you are already screwed because you are holding or have something in the car you are not supposed to. If you refuse, the police will either impound the car if they arrest you and get a search warrant or simply search to do an inventory of the vehicle’s contents because they are responsible for a vehicle’s contents when it is impounded. If they can’t arrest you at the scene but think you have some form of contraband in the car, they can detain you until they can get a search warrant. So either way they find the stuff, and you are screwed. Before you drink away from home, know the potential consequences.

For over 12 years I have been a part of an amazing ministry called Northstar Community. A recovery ministry for anyone with “Hurts, Habits or Hang-ups,” it began as an eight-week pilot program of Bon Air Baptist Church in Chesterfield County. At its heart is a Christ-centered twelve-step program. Lori and I showed up the first week to support our friends the McBeans. Teresa McBean, our minister, is now recognized as one of the preeminent leaders in the field of Faith Based Recovery. 

Lori and I felt an immediate connection to the message, even though we had no active addiction issues. My dad was an alcoholic and ultimately committed suicide due to the disease and his unwillingness to honestly work the steps. Right away I knew that my experience would be useful to the ministry. Lori felt Teresa’s messages were just for her. We quickly committed to join in an amazing journey with an incredible group of pilgrims. Lori and I both feel that working our personal 12 steps helped us more than anything else we did to deal with the grief of our son’s death. As we have learned, we all have hurts, habits, and hang-ups that we need to work through. Northstar is a great place for anyone to work through personal issues, whether or not they are directly related to addiction or not.  

I am discovering that just about everyone has been touched by addiction, either directly or indirectly. All of us know someone who suffers from the disease of addiction or have a close friend whose family member is hurting. Yet we are often unaware because it is the dirty little family secret. At Northstar we have a number of support groups for addicts and the ones who love them. We have learned that it is not just the addict who needs help, it is everyone they touch. As I learned, a family member’s addiction affects everyone in many ways. My dad was sober for twelve years before he relapsed. I felt if he wasn’t drinking then things would be good in the family, but they were not really any better. A person getting sober does not solve the problems alone; the whole family and all of the loved ones need help. We have support groups to help families navigate through these stormy waters.

We have an excellent website, northstarcommunity.com, which gives a more complete picture of the ministry.  If you go to the website you may even see yours truly delivering an occasional message. Yes we do live on the “high wire without a net,” letting a lawyer deliver the message for a church community. Our community gatherings are broadcast weekly on Channel 6, the Richmond CBS affiliate, at 11:30 Sunday mornings.

There are two provisions of an insurance policy that are often not fully understood by clients when they are in an accident.  These are the provisions of med-pay and the rules on property damage.

Med-Pay

Most insurance policies in Virginia include coverage for medical payments for injuries suffered in an accident. This is a benefit you receive whether the accident is your fault or the fault of someone else. The amount of coverage varies with the policy. The coverage varies from $500 to $5000 per person per accident depending on how much coverage was purchased in the policy. However, the total coverage available for an accident can be multiplied by the number of vehicles covered by the policy. It is important to know that a claim for med-pay must be made within one year of the accident. Payment of this coverage does not affect your premium. It is not treated as a loss claim against your policy. You may collect med-pay even if the accident is your fault. It is simply protection you purchase to protect you and your family while riding in vehicles you own. If you are in an accident, check your policy to see how much med-pay is available to you. In many cases you will need to ask for your med-pay. Many companies and agents do not tell their customers that this coverage is available under their policy. It is another way the insurance industry tries to save money. This is not true for all, but you cannot depend on the company’s adjuster or your personal agent to advise you on med-pay coverage. One of the things we do as a service for our clients is to process and collect the full amount of med-pay they are entitled to under their policy. This is part of the service we provide at no additional charge. We will gather the medical bills and the supporting documentation needed by the insurance company to pay the money owed to our clients under their policy. 

Property Damage

One of the most traumatic issues of an accident, other than serious injury, is the loss of the trusted vehicle you own. Often the vehicle has been a good serviceable and reliable source of transportation. You may have just spent a significant sum to repair the vehicle. Then in an instant it is a total loss. What are your rights? Virginia law is clear. The insurance company is only required to pay the lesser of the cost of repair or the fair market value of the vehicle at the time of the loss. No More!! On the total loss this is most often not enough to replace the vehicle. The car is paid off and now you are faced with a note, or worse, you feel you can’t afford a replacement vehicle, even a used one. It seems unfair but that is the law.

The other side of the coin is if you have a new vehicle and there is substantial damage. That can be equally traumatic. Your new car, your pride and joy, is now a crumpled mess. You can’t imagine how you could ever drive that car again. The carrier says they will not declare the vehicle a total loss. You want the car totaled and the insurance company to buy you a new one. Under Virginia law the insurance company can dictate that it will only pay to fix the car and not declare it a total loss. But if the company decides to follow that path, then it is also required by law to pay for the diminution in value after the repair has been completed. This is important to consider. Under Virginia law you are required to disclose that the vehicle has been damaged if the repair costs are over $500. This is true whether you sell it yourself or trade it in to a dealership for a new vehicle.Under most policies in Virginia you are also entitled to a rental car. If the accident is not your fault then the guilty person’s insurance company is required to pay. The insurance company must pay until your car is repaired. If the car is a total loss then it only pays for a reasonable time following a determination that the car is a total loss. This is usually 10 to 14 days.

Do I really need a lawyer to help me or can I handle my personal injury case myself? 

There may be cases in which the insurance carrier for the person who caused your accident and injuries will treat you fairly.  In cases where you have minor injuries you may be ahead of the game to resolve the case yourself.  However if you incur significant medical bills it becomes more difficult to get a fair settlement for your claim.  An additional consideration is the fact that often the insurance company wants to settle very quickly.  This may be a mistake also.  You should wait a minimum of 6 months after you feel you are well to make sure no further problems come up.  Because once you accept a settlement and sign the release, you can never go back and reopen your claim.  I regularly field questions from people who want information on whether they should settle.  They want to know if the offer is fair.  I am happy to meet and discuss these cases and if it is a fair offer I say so.  Many times the offer is not fair and the person will benefit from the expertise of our firm.

When should I hire a lawyer to handle my personal injury case?

In short, sooner is better.  There are things that need to be done very soon after an accident in order to properly prepare and pursue a personal injury claim -- key things that if done will increase the recovery for the client.  It is important to properly investigate the circumstances which led to the accident while the evidence is fresh.  We find that the ability to interview the witnesses as soon as possible after the accident can be crucial.  Over time witnesses move and are difficult to locate.  Their memory fades.  Police officers misplace their notes.  Evidence is lost or no longer available.  The vehicles are disposed of and not available for pictures.  Pictures of the vehicles are very important to show the severity of the collision and in some cases critical to proving how the accident occurred.

When Should I Seek Medical Treatment?

One of the things I see affecting the recovery in some personal injury cases is the stoic attitude of the injured person.  Many people don’t want to keep running back to the doctor.  They also feel that I will get better and really don’t need to see the doctor.  However the insurance companies will use gaps in treatment to discount the value of the claim, both in negotiations and at trial.  I have often worked with clients who were in constant pain for many months but did not seek treatment.  The argument is made that if you were in that much pain you would have gone to the doctor.  Another problem occurs from the delay in seeking treatment.  There are times when the client’s doctor cannot say his or her treatment was a result of the accident because the client had not been seen for a long period of time.  The client had been in constant pain but the constant pain had not been documented.  We always recommend that our clients continue to get treatment while they are suffering pain and disability from their injury.

I recently had the opportunity to speak to a local Kiwanis Club in Midlothian about one of my favorite developments in the law. My topic was the Chesterfield Colonial Heights Drug Court. Drug Court is one of the most important developments in the practice of criminal law in the last 30 years. Statistics show that over 80% of the crimes committed in Chesterfield and the Richmond metro area are related to drug abuse in some way. Everything from car theft and grand larceny to domestic violence can be traced to drug abuse and addiction. Not to mention the felonies of possession of many controlled substances.

The Drug Courts in Chesterfield, Richmond, and Henrico are three of the 14 in Virginia. They combine intensive treatment and proper punishment to the participants.  It is an alternative available for felonies. I serve as Chairman of the Drug Court Foundation for Chesterfield. I am more familiar with how that Court operates. In Chesterfield a person is eligible for drug court  if they are charged with a felony possession of a controlled substance. A person who is heavily involved in distribution of drugs is not eligible to participate. People charged with grand larceny, forging checks and forging prescriptions are all eligible. Personnel from the Drug Court will evaluate candidates to determine if they are truly addicts.

When a person is found eligible they are allowed to pled into the program. If they successfully complete the program, then their charges will be dismissed. If they are terminated from the program they have agreed they will serve at least 6 months for each charge.  

The Drug Court has a full team to provide treatment and monitor the participants. Everything from a probation officer to a Chesterfield County policeman is involved. The participants are subject to random testing 24/7. If they are positive they are sanctioned the following Wednesday and sent to jail for at least 10 days. If a participant is sanctioned for dirty screens they are terminated from the program and must serve the jail sentence they pled to.

The success of Chesterfield’s Drug Court is remarkable. The recidivism rate for graduates of the program is less than 17%. It goes to less that 28% for participants who do not successfully complete the program. That is compared to over 50% return for those who do not go into drug court.

In addition the annual cost for a drug court participant is approximately ½ of the cost of incarceration for a year. There are additional costs benefits for our community from drug court. Participants are required to work. This is additional tax revenue. They must remain current on all child support obligations. One of the most dramatic benefits is the savings in neonatal care. The Chesterfield Drug Court has averaged one birth a year to program participants. This means that there is at least one less baby born each year who is not born with an addiction requiring substantial neonatal care. Those savings can amount to over $250,000 per birth.

The Drug Court in Chesterfield is one of the best kept secrets in our area. It is also one of the most effective programs in the battle against the two headed monster of addiction and the crime which is a byproduct of a person’s addiction.

On December 18th, Joe Owen and Owen & Owens PLC hosted a breakfast for the Chesterfield Colonial Heights Drug Court at the Village Bank Corporate headquarters.  Joe is Chairman of the Chesterfield Colonial Heights Drug Court Foundation. 

The breakfast was attended by various legislative, government and court officials from throughout the Richmond Metropolitan Area.  The Honorable Frederick G. Rockwell, III, of the Chesterfield Circuit Court, and the Honorable Jerry Hendrick, Jr., of the Chesterfield Juvenile and Domestic Relations Court, described the very positive impact which the drug court is having in battling substance abuse and related crime in the Richmond Metorpolitan Area.

These sentiments were echoed by Chesterfield Commonwealth's Attorneys William Davenport and Larry Hogan.  Both men, who are career prosecutors, descibe how the success of the Drug Court program moved them from reluctant participants to vocal advocates of the program.  Hogan made it clear that the program is not a minor slap on the wrist.  Rather it is an intensive rehabilitative program which combines state of the art treatment and quick and certain jail time for those who mess up.

A statistical comparison of Drug Court and traditional legal treatment further highlights the importance of Drug Court.  The average criminal has an 80% likelihood of committing another crime and going back to jail.  The Drug Court participants almost reverse that statistic.  65% to 75% of the graduates of Drug Court go on to live crime-free lives. It costs approximately $5,000 a year for a person to participate in Drug Court.  To incarcerate the same person it costs from $60,000 a year for an adult to $100,000 for a juvenile.

When a person goes to jail they do not experience many positive changes.  A graduate of the drug court generally becomes a productive citizen.