It is difficult to imagine how the generations before us survived without the technology  available today.   I know books helped, but Google provides answers in seconds.  Data, translations, email, directions, and the answers to even the most random questions are instantaneously delivered upon request.  Now, with smartphones we carry these capabilities, as well as our private lives, with us everywhere that we go.  Our texts, emails, internet search histories, Facebook messages, videos, photos, and GPS trackings reveal a lot about our day, movements, preferences, and thoughts.  While we gain convenience with this technology, the information is also valuable to others for a number of reasons. For example, retailers already used our smartphones to track our whereabouts at the Short Pump mall.  It is an efficient way to cheaply target marketing and learn our preferences without asking us.  Luckily this experiment was shut down pretty quickly.  Not only may smartphones impact businesses, but it is inevitable (at least in the foreseeable future) that they will have a huge impact on the criminal justice system and how law enforcement agencies gain private, perhaps incriminating information, about us.   

                The United States Supreme Court and the Virginia Supreme Court have yet to determine whether it is a violation of a person’s 4th Amendment rights for the police to search a person’s smartphone incident to arrest.   Courts across the country have rendered split decisions on this very question.  As a reminder, the 4th Amendment protects a person from unreasonable searches and seizures.  So what does this mean?

                It means that until the courts hold that our smartphones cannot be searched incident to arrest, our private lives may be available to be viewed and used against us, if appropriate.  For example, under the current law, it is not clear that it would be impermissible for a police officer to search a person’s smartphone upon arresting her for trespass.  Presumably, a person’s phone has nothing to do with trespass, and there is no obvious reason in most cases as to why an officer would have a reasonable articulable suspicion that the phone contains evidence of the crime of trespass.  Today, however, a person’s smartphone might be searched under this very scenario.  What about a DUI? Let’s say a person is pulled over for swerving, alcohol is smelled, and field tests are failed. The person is arrested, and his phone is searched on the drive to the jail for the breathalyzer test.   Texts on the phone reveal that the person, who now sits silently in the back of the patrol car, told his friends not less than an hour ago that he was on his eighth beer.  In this scenario, one might feel inclined to be grateful to the police for making sure this person, who undoubtedly is a hazard to public safety, is convicted.  Law enforcement agencies, however, have other avenues for collecting evidence to convict this offender without violating his privacy rights. After all, remember that we did not have smartphones until a few years ago and people have been convicted of DUIs for decades. 

So what should you do?   Always be polite and cooperative to the police, but handing over your smartphone for a voluntary search is definitely one way to make sure that any evidence found on your phone can be used against you without a 4th Amendment violation challenge.  In addition, put a password on your phone.  It will be interesting to see how courts adapt to this ever-changing technology.

The condensed story for Hernandez is that he was charged with feloniously assaulting a police officer in violation of Va. Code § 18.2-57(C).  The lower court held that the court did not have the authority to defer disposition (even though such a result might be appropriate), as the defendant was not charged with a crime that had been specifically designated by the Virginia legislature as eligible for such deferment.  Crimes that the courts have explicit statutory authority to defer disposition of include, but are not limited to, spousal rape (§ 18.2-61), first offender drug possession (§ 18.2-251), and first offender misdemeanor property offense (§ 19.2-303.2). 

On January 13, 2011, the Virginia Supreme Court overruled the lower court in Hernandez v. Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), holding that courts have inherent authority to defer disposition of a case after the evidence is presented and a plea is entered.  The lower court may now withhold a finding of guilty for a period of time and require a defendant to complete certain requirements.  Successful completion of the requirements results in a dismissed charge. This means something critical to defendants.  Instead of a conviction, you may now get a second chance under Hernandez.  Defendants should also take note that Hernandez squarely places the onus on them. So don’t blow it. 

Because the Virginia Supreme Court did not provide specific instructions to the lower courts about how to implement Hernandez, requirements vary from jurisdiction to jurisdiction.  For example, in Henrico, the courts will not consider a Hernandez plea unless the defendant has a clean record and pleads guilty.  In addition, the Henrico courts’ status quo conditions include: 24 hours of community service, 6 hours in jail to be served immediately following trial, regular monitoring by the Community Corrections Program (“CCP”), and a requirement to be of good behavior and keep the peace for a designated period of time.  The monitoring by CCP includes regular drug and alcohol testing, even if the charge is not drug or alcohol related.  Testing may be administered the day of trial.  A dirty drug test on a Hernandez plea in Henrico will result in a show cause, a conviction, and jail time.  Hernandez gives defendants a second chance, but if they do not comply with the conditions, the penalties ordered by the court may be more severe than had the defendant pled guilty and been convicted on his trial date. The responsibility to meet the court ordered conditions falls on the shoulders of the defendant.  While there is no promise that complying with the conditions set forth by the court will result in an absolute dismissal of the charge(s), I have yet to see a case in which the court did not dismiss the charge upon successful completion of the conditions. 

Opponents presented legislation in January 2012 to gut Hernandez, as they did in January 2011.  To date, the attack on Hernandez has not been successful.  For those fearful opponents, the judiciary has been implementing Hernandez with great caution.  As for the public at large, while CCP, I concede, may be overwhelmed at times with the influx of defendants in need of monitoring, the Commonwealth undoubtedly saves monies that would be required to fund jails in the short term.  And in the long run, (I admit this point is a little disconcerting but realistic), Hernandez could have a major impact on sentencing guidelines for the once lucky defendant who is convicted of another charge in the future, thereby reducing  his sentence and the monies required to jail him for a subsequent offense. 

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.

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.