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Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4021
Experience:  9 years legal experience, primarily in criminal justice
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I got a Class 4 Misdemeanor for Drunk in Public in Fairfax,

Customer Question

I got a Class 4 Misdemeanor for Drunk in Public in Fairfax, Virginia. I'm 23 and in the Army. I have not yet reached my court date and its my first offense. Never been arrested or committed any crime. No tickets or any thing.
I stopped my car and peed in the woods, then a police pulled over right behind me and asked me how much i have had to drink, I said just one glass, so he search me and arrested me. Took me and detained from 2:30am to 10:30am. I was given a $107 fine and asked to pay or come to court. No test was made to see if i was drunk.
I do not want this on my records, so my questions are as follows:
How can i prove that i wasent drunk?
Do i need a lawyer for the court hearing or am i to go by my self?
Also, if convicted, how long does this show up on my record?
Please anything else will help.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 11 months ago.
Hello.

Since you want to keep the charge off your record (because once you are convicted in Virginia it stays on your record permanently and is nearly impossible to get off) it would be a good idea for you to hire an attorney or apply for the public defender to help you. Since this is a minor offense and your first charge, your lawyer may be able to work out a deal where you complete a program (often called diversion, deferred prosecution, or suspended imposition of sentence) in exchange for a dismissal. The program usually involves a fine, community service, and/or a treatment program, as well as requiring you to stay out of further trouble for a period of time. Once you successfully complete it, the charge is dismissed, but if you violate the program you will be stuck with the conviction. You can also try to challenge the charge at trial if they won't offer you a disposition without a conviction. It is not your responsibility to prove you were not intoxicated, but rather the burden is on the prosecutor to prove you were intoxicated. It doesn't sound like they will be able to prove it, and in reality if the officer was sure you were drunk he would have charged you with a DUI rather than public intox. So you do have options but to protect your record and your career it is a good idea to get a lawyer to help you before the trial date.
Customer: replied 11 months ago.

Thanks for your advice.

If i have to get a lawyer, approximately how much am i going to pay?

and if i have to be on a "stay out of further trouble for a period of time" about how much time am i looking at?

Also, do you know if the military can provide a lawyer for me.

Also, i have a witness, because I was with a girl who can testify i only had one glass and i was not drunk. Is that going to help?

I have heard public defenders are not really helpful in court as they are "new on the job" or fresh from school, so all they do is plead guilty or make a deal, not try to win for the client cuz they hate to loose a case. Else i will like to apply for a public defender as i am broke to get an attorney

Also, upon arrest, the officer didn't read my rights to me or inform me why i was being arrested until we got to the station. So the friend i was with didn't even know what was going on. Can i use that against him?

Expert:  Hammer O'Justice replied 11 months ago.
Lawyers vary from region to region so I can't tell you how much but you can call around to get an idea of what is standard.

The period of the probation is usually about six months but it could be more or less. There's not a set time and depends on the agreement.

Yes, the witness can help.

I don't know about the military providing a lawyer...I'm a criminal law expert, not a military one.

PDs wrongfully get a bad rap. As with all lawyers, there are good and bad. Some of the best lawyers I know are PDs, and many have lots of experience. They also tend to have better relationships with prosecutors and get better deals as a result. You can always start with a PD and hire counsel later if you don't like them.
Customer: replied 11 months ago.

Also, upon arrest, the officer didn't read my rights to me or inform me why i was being arrested until we got to the station. So the friend i was with didn't even know what was going on. Can i use that against him?

Expert:  Hammer O'Justice replied 11 months ago.
No. Contrary to TV, you only have to be Mirandized if the officer was going to interrogate you while in custody. It is a common misconception.
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4021
Experience: 9 years legal experience, primarily in criminal justice
Hammer O'Justice and 6 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.

Ok, here are my other concerns. I read that to qualify for a PD, there needs to be the possibility of jail time. Is that true?


Also, if i am found not guilty, does the arrest stay on my record?
And if so, what do I have to do to get that completely of my records?

Expert:  Hammer O'Justice replied 11 months ago.
In most counties, PDs are only provided for a jailable offense. All you have to do to find out if that is true is to call the PD's office in the county where you are charged.

If you are found not guilty, the arrest stays on your record unless you get it expunged. A disposition of either acquittal, a dismissal, or a nolle prosequi is eligible to be expunged in Virginia. The law is here:
DANGEROUS URL REMOVED?000+cod+19.2-392.2

You have to file a petition to get the expungement. The clerk of court's office will likely have a preprinted application that you can fill out when your case is disposed of.
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4021
Experience: 9 years legal experience, primarily in criminal justice
Hammer O'Justice and 6 other Criminal Law Specialists are ready to help you
Customer: replied 9 months ago.

ok, so I finally went to court without a lawyer and was charged with the drunk in public. I have 10days to appeal the charge. which I want to. but I need a lawyer to win. I was told before that I didnt qualify for a PD. so I was wundering if I can get one when I apeal the case.

Expert:  Hammer O'Justice replied 9 months ago.
If you didn't qualify for a PD at the trial level, you probably won't qualify for an appeal because the standard in most counties is whether or not you could go to jail. Even if you lose the appeal you still can't go to jail. You can file the notice of appeal yourself, since you have a very short window of time and then try to find a lawyer before the appeal gets underway. If the PD's office still will not take you, there are not many places you can go. If there is a law school in your area, I would suggest contacting them to see if they have any clinical programs doing criminal or appellate work (basically you'd be represented by a law student under the supervision of an attorney). You can also try contacting the state bar to see if they have a list of attorneys that do pro bono work (some state bars keep such a list and others don't). These would be private lawyers who do free legal work, not the public defender, so you wouldn't have to qualify in the same way:
http://www.vsb.org/vlrs/

They are not easy avenues but other than the PD's office they are just about the only options to try. Since the public defenders do criminal representation legal aid and other pro bono organizations don't usually do those type of services.
Customer: replied 6 months ago.

Ok, so I applied for an appeal, but the officer did not show up so the case was dismissed. I want to get that expunged from my record. I was wondering how to go about that. And if i get it expunged, can the arrest record ever be seen on a background check or security clearance check. I am looking to be a correction officer or a state trooper and not sure if that should be an issue.

Expert:  Hammer O'Justice replied 6 months ago.

Hello again.

I'm glad to hear that your case was dismissed. Since it was, you are eligible to apply for an expungement. Simply contact the clerk of court to request a petition for an expungement. It is a fairly easy form to fill out so you shouldn't have any trouble with it.

While an expungement gets rid of the record of the arrest and the charge in most places, law enforcement agencies still have access to expunged charges. However, they will not likely hold it against you because it wasn't a conviction, and you can truthfully say that you were not convicted.

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