Thursday, June 25, 2009

New U.S. Supreme Court Case Impacts DWI & Drug Defense

On June 25, 2009, the United Supreme Court decided a case that should have a major impact on drug, DWI and other cases in which lab results are used at trial. In Melendez-Diaz v. Massachusetts the US Supreme Court held that if the defense objects to a certificate of analysis, the prosecution must call the lab technician if it seeks to introduce evidence of the laboratory test results. In most DWI and Drug cases in Virginia, the lab operator rarely testifies at trial and in the past, the Virginia Courts have routinely allowed the lab certificates into evidence without a witness.

In the Melendez-Diaz case, the Supreme Court found that the Defendant’s Sixth Amendment right to confront the witnesses against him was violated by admitting into evidence over the objection of the Defendant a notarized laboratory drug test certificate, without the in-court testimony of the analyst conducting the test. The Court stated that such notarized certificates are “testimonial” in nature, and thus, are covered by the Confrontation Clause of the Sixth Amendment to the United States Constitution.

The holding of this new case is expected to have an immediate and important effect on DWI and drug-related cases in the Commonwealth of Virginia. We now anticipate that the Commonwealth will be required to call the lab technician in order to admit laboratory certificates into evidence at trial in order to demonstrate how the laboratory test was conducted. Since that testimony is a departure from the current practice in Virginia, it gives defense lawyers an opportunity to win some cases for their clients.

The use of new, innovative arguments at trial is why anyone charged with a crime should retain an experienced defense law firm, such as Gross & Romanick.

What Should You Put In Writing: Understanding Statue of Frauds

Based on its name you might think that the Statute of Frauds has something to do with criminal or civil fraud, but it doesn't. The name "Statute of Frauds" actually refers to a law passed by the British Parliament in 1677, and the name has been retained through the centuries. It specifies which kinds of contracts must be in writing in order to be enforceable. Its purpose is to prevent the setting up of supposed agreements and then supporting them by perjury.

The most common applications of the Statute of Frauds are as follows:
  • Holding a person responsible for the promise to pay the debt of another
  • Contracts for the sale of real estate
  • Leases for real estate over 1 year
  • Agreements which cannot be performed within 1 year
  • Sale of personal property over $5,000
  • Sale of goods over $500, unless the buyer accepts the goods
  • Agency agreements

While the Statute requires a written agreement, almost any writing sufficient to indicate some kind of agreement between the parties will suffice. However, the "writing" must be signed by the party who is being charged. Thus, the venerable Statute of Frauds is still an important and influential part of modern law.

For more information or to have Gross & Romanick aid you in written contracts and agreements, please contact the firm directly by calling (703) 273-1400.

Friday, June 19, 2009

Uninsured/Underinsured Automobile Insurance Coverage

If you are injured in a motor vehicle accident in which another driver is at fault, it may come as a surprise to you to learn that the other driver does not have sufficient insurance to compensate you for your injuries. Under Virginia law you are entitled to payment for medical expenses, lost wages, pain & suffering as well as damages for change of lifestyle. However, Virginia only requires drivers to have a $25,000 bodily injury policy and in some circumstances, even allows drivers to be uninsured. If you are seriously injured, your total losses could easily exceed the financial cap of the other driver’s insurance policy. How do you protect yourself from drivers who have inadequate insurance?

The answer is to purchase uninsured/underinsured coverage from your own insurance provider. All insurance companies offer uninsured/underinsured coverage. This coverage provides compensation to individuals injured as a result of another driver’s negligence when the driver at fault does not have adequate coverage to compensate you for all of your injuries.

Beware! Uninsured/underinsured coverage can be tricky. Virginia law only requires payment from this coverage after all third party insurance that is available is exhausted. For example, if you sustain $50,000 in injuries and the responsible driver has $50,000 of insurance available and you purchased $50,000 of uninsured/underinsured coverage, you will receive nothing from your own policy. On the other hand, if you sustain $100,000 in injuries and the responsible driver only has $50,000 of insurance available and you have $100,000 of uninsured/underinsured coverage, you may be able to recover up to $50,000 from your own insurance policy. We recommend that you purchase $1 million or the most uninsured/underinsured coverage that you can afford.

Virginia Case Allows Stacking of uninsured/ underinsured coverage

In the 2009 case of Virginia Farm Bureau Mutual Insurance Company v. Williams, the Virginia Supreme Court held that an individual injured in a car accident may “stack” the insurance coverage available under her own automobile insurance policies. In this case, a passenger was injured when the automobile she was in collided with another vehicle. The combined insurance policy limits of the two automobiles involved in the accident was insufficient to cover her losses. The Virginia Supreme Court permitted the injured person to combine (or “stack”) the uninsured/underinsured policy limits from the three automobiles owned by her father and covered by the insurance he had purchased for those vehicles. Because the Court permitted stacking, the total benefits available to her were increased and available to compensate her for the injuries she suffered in the accident.

The case is significant because in the past Virginia courts disallowed stacking. However, it is important to note that the decision was based on contract interpretation and not public policy. Therefore, there may only be a short window of opportunity to stack uninsured/underinsured polices. The Insurance Company lawyers are certain to review the Williams case and re-write future policies to avoid the outcome of the Williams case. Nevertheless, the case demonstrates why it is so important to have adequate uninsured/underinsured coverage and a knowledgeable attorney on your side.

Hire A Personal Injury Lawyer With Experience

If you are injured in an automobile accident, it is critical that you hire an experienced law firm, such as Gross & Romanick. The Virginia insurance scheme is complex and extraordinarily difficult for an individual to navigate. Beware of lawyers who take automobile injury cases on an occasional basis but do not know how to seek the maximum insurance coverage that is available to the injured person.

Thursday, June 18, 2009

Happy Clients

A recent client of Gross & Romanick was initially charged with reckless driving (going 91 in a 55 mph zone) and illegal window tints. With Gross & Romanick’s help, the final disposition was speeding (74 mph in a 55 mph zone) with a$250 fine. The window tint charge dismissed.

The client wrote to Gross & Romanick shortly thereafter:

Dear Mr. Romanick:

Thank you so much for representing me for my reckless driving/window tint charge. I appreciate your continued honesty from the beginning, and your continued professionalism and patience through the continuance, and the particular judges and prosecutors we had. I am pleased we got the lucky break we did, and realize that I would not have been able to take advantage of this without you defending me. I will hold on to your business card and be sure to give a good reference for you in the future. I would say I will see you soon, but hopefully I won’t!

Tuesday, June 16, 2009

The Importance of Having a Written Contract

A common problem that we encounter at Gross & Romanick is the client who wishes to enforce an agreement that was not put into a writing signed by all parties. Even an exchange of e-mails or written proposals without a signature does not necessarily create a binding contract. While some oral agreements are enforceable, it can be extremely difficult to prove the existence of an oral contract and its terms. To be enforceable, an oral contract requires: (a) a meeting of the minds, (b) definite terms, and (c) a pattern of adherence to those terms. More often than not, the existence of an oral contract boils down to a “he said-she said” debate, which can make enforceability very uncertain.

In addition, under the Statute of Frauds in Virginia, some oral contracts are never enforceable. These include, but are not limited to:

    Agreements to pay the debts of others;
    Agreements for the sale of real estate;
    Agreements to lease real estate for more than 1 year;
    Agreements that cannot be performed within 1 year; and
    Agreements to lend or extend money in an aggregate amount above $25,000.

It is always better to put an agreement into writing, signed by the parties. Doing so eliminates the “existence of a contract” issue, the Statute of Frauds issue, and the argument over what the terms of the agreement were. Also, having a written agreement increases the likelihood that the parties to the agreement will actually acknowledge and abide by the deal. In Virginia, you also have a longer time period to enforce a written contract following a breach (5 years for written contract versus 3 years for oral contracts).

Too many people fail to create a written agreement. This is especially true when the agreement involves friends and family, because it seems to imply lack of trust. In fact, a written agreement is good for all parties because it explains the actual terms of the contract, which understanding may differ among the parties if there is no writing. The only party that benefits from an oral agreement is the party breaching the contract. In our legal experience, it is alarming how often a party to an oral agreement will simply lie about the agreement when the other party seeks to enforce it. Do not take this risk!

Virginia Lawyers Who Tweet

Our very own Jeff Romanick, @FairfaxLawyer, is mentioned in a recent Virginia Lawyers Weekly article on the Virginia Legal community on twitter.

Take a look: its a fascinating analysis of Twitter for those not in the know and a run-down of Virginia Lawyers on twitter.

Traffic Stops and Your Rights

Many people are confused about their rights when they are stopped while driving on the road by a police officer. In fact, a large percentage of individuals stopped for routine traffic violations incorrectly believe that they are required to perform whatever tasks or tests are requested by the police. If you are stopped for any sort of traffic violation, with a few exceptions, you have the right to politely decline almost any request made by the police officer.

The 5th Amendment of the United States Constitution protects against “compulsory self-incrimination” (meaning that no person can be required to give evidence against them self). This protection extends to both statements and various field sobriety tests, such as walk the line, touch your nose, etc. In the context of routine traffic stops, this means that you have the right to refuse an officer’s request for you to exit the vehicle. You also have the right to refuse to perform field sobriety tests. You have the right to refuse consent to a search of your vehicle. You may choose to exit your vehicle and perform these tests, but that is your choice. In many circumstances, the police officer cannot legally order you out of your car to perform sobriety tests if you are stopped for a routine traffic violation.

Under most circumstances, a motorist should not make any statement or have a discussion with the police officer. Do not try to convince the officer of how little you had to drink (“only 2 drinks officer!”). Citizens are under the mistaken belief that the policeman must read you Miranda Rights before asking basic questions about your drinking and driving behavior. Whatever you say and do will probably be used against you in court.

In many cases, even if you remain polite and courteous with the police officer, the officer will aggressively attempt to convince you to perform field sobriety tests, including a field blow test. Again the 5th Amendment affords you the right to refuse to perform tests. However, after you are legally arrested and transported back to the police station, there are statutory consequences for failing to take a breath test. Refusal to take a breath or blood test after being legally arrested is a violation of Virginia’s implied consent law and may subject you to the loss of your privilege to drive, as well as other consequences.

If you do refuse to cooperate with a police officer, you may be threatened with arrest and you may anger the police officer. Therefore, you should understand the consequences of being uncooperative. If the police officer does arrest you and charges you with a criminal offense (such as DWI or Possession of Marijuana), you should seek out a knowledgeable and competent criminal defense attorney. Regardless of whether you complied with the officer’s requests or exercised your rights and refused, you should have a lawyer to ensure that your rights are properly protected in court.

Tuesday, June 9, 2009

Commercial Landlord Practice Area

Commercial landlords need legal assistance from experienced lawyers who understand this area of the law as well as their business concerns. Leasing to tenants at a shopping center, office building, warehouse or other commercial facility involves issues from lease interpretation to collection of unpaid rent. Property managers and leasing brokers depend upon our advice for management decisions, contract language and eviction.

Gross & Romanick represents many of the largest commercial landlords in the Washington DC area, as well as a national REIT. We pride ourselves on taking a practical, business approach to resolving tenant problems. Whether the property manager is new at the job or hardened by the battle, our attorneys can help them with the difficult task of retaining good tenants, enforcing the rules, and collecting rents.

We handle:

- the lease & other agreements

- evictions

- self-help

- bankruptcy

- litigation

For more information about our commercial landlord arm, or to speak to an attorney, contact Gross & Romanick by calling (703) 273-1400.

Tuesday, June 2, 2009

At-Will Employment: The Employee Handbook

WHAT CONSTITUTES AN EMPLOYEE HANDBOOK: An employee handbook can consist of a two page memo informing your employees of specific rules regarding a certain aspect of their employment or it can be a three volume epic covering every aspect of employee behavior, benefits and duties.

DOES A HANDBOOK CREATE A CONTRACT? Not under Virginia law unless there is a written or oral agreement referencing the handbook. However, there are certain conditions in which a handbook or manual can be relied on to establish an employee's rights against an employer. These conditions are: 1) when the wording appears to take the relationship out of an at-will context by fixing the duration of the term of employment, and 2) if its terms constitute a binding promise. An employer may be unhappy to find that a jury or a judge will make the final decision as to whether the wording of the handbook changed the relationship from at-will employment to something more binding.

ACTION ADVICE: Always have your employee handbooks or handbook modifications written by an attorney. Make sure that the handbook states that the terms of employment are "at will". Avoid vague language that may promise benefits that the company does not wish to provide. When discussing disciplinary procedures, give the employer broad discretion to impose probation, demotion and termination. Have employees sign for receipt of the handbook. Finally, follow the handbook when making decisions about employee benefits and discipline.

The above article is not meant to replace legal counsel. To speak to one of the lawyers at Gross & Romanick, please contact the firm directly by calling 703-273-1400.