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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 24526
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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This is a criminal case: Here are the facts: 1. My daughter

Customer Question

This is a criminal case:
Here are the facts:
1. My daughter who is 18 was charged with possession of control substance schedule 4 and possession of alcohol. She is a first time offender and has an excellent clean record. College student and working now.
2. Today at court she plead not guilty and went to trail and was found guilty of possession of controlled substance and the alcohol charge was dismissed.
3. I would like to appeal based on the following: first she did not authorize for the cops to search her purse. Secondly they found 2 antibiotics that were hers and 1 xanax which was mine however they were all in the same medicine bottle and all looked alike. She was holding the xanax one for me. Both medications had prescriptions. One was hers the antibiotic and the other was mine the xanax.
4.The incident involved where she was the front passenger in a car along with driver and two other passengers. Unfortunately she was the only adult and the others are minors.
Question: Do I have any legal basis to appeal? What are the consequenses for this type of misdemeanor work wise and college wise. Can it get removed at some point from her record?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Hello,

She was arraigned and went to trial on the same day? Without a lawyer? Without discovery? Without a lab report? On the first day that she appeared in court? Judge or jury tiral? Has she been sentenced?

Either you got or gave me the facts incorrrectly, or there's something your daughter hasn't told you. Can you clarify?

Customer: replied 1 year ago.
no she was not arrested. she was inside the car with the friends and a bicycle cop happened to be passing and questioned them and saw the alcohol in the back seat and all four were charged with possession of alcohol. However my daughter was charged with both alcohol an possession of controlled substance. She got summoned and then appeared on court for the first time on October 5 however the police office did not have the results from the lab therefore her court was moved to today. And she plead not guilty and went to trial today as well and was found guilty of the possession of controlled substance . The alcohol was dismissed.
Expert:  Zoey_ JD replied 1 year ago.

Are you sure she had a trial and not a preliminary hearing? Because this sounds all wrong to me. It's very unusual that a defendant would be rushed to trial on the second date. Perhaps she/you misunderstood the procedure.

What is to happen to her from here? Does she have a new court date? Or is the case now over? If so, was she sentenced?

Customer: replied 1 year ago.
we are in the state of Virginia. The way it works here she got summoned to appear to General District Court and was asked what her pled was. She pled not guilty however the cop did not have the lab results therefore her court was moved to another date which was today. She appeared at court today again on the docket along with everyone else and we waited for over 5 hours to be called and when it was our turned we had a trial with the cop and the judge heard heard her testimony and the cops and ruled against her on the possession of substance. BTW: Are you licensed in Virginia??
Expert:  Zoey_ JD replied 1 year ago.

I'm not licensed in Virginia. However, I can't think of any state in this country where a judge would rush an unrepresented 18 year old into trial on the second court date.

This sounds more like a preliminary hearing. That's a hearing just as to probable cause, which would give the state the right to continue to prosecute her for the possession -- since they have evidence of that -- though not the alcohol. That would make sense on the second court date. Otherwise, if you're correct, your daughter was denied all sorts of due process rights.

So I'm asking again, if she was convicted, what was her sentence?

Customer: replied 1 year ago.
She was fined $500 + court cost and her license was suspended for 6 months and now she has a misdemeanor schedule 4 on her record and we want to appeal. So what you are saying is that we can appeal based on violation of due process: can you please elaborate more on this due process violation??
Customer: replied 1 year ago.
The other thing was that the cop never asked her for permission to search her purse. He took her purse without her consent. Does this violate the search and seizure laws???
Expert:  Zoey_ JD replied 1 year ago.

This sounds like a kangaroo court to me, frankly. She had to have waived all of her rights to have this happen -- her right to counsel, to motion practice, to hearings, to discovery, her rights under the 5th Amendment.

In answer to your question, I can't tell whether the police officer searched the bag unlawfully or not. I have no facts. However, the US Supreme Court says that questions as to constitutionality get determined at pre trial suppression hearings. Your daughter could have asked for a hearing on the search and seizure issue and if after the evidence it was found that her rights were violated, the drugs would have been suppressed and the case dismissed. If she waived her right to such a hearing, the search and seizure issue cannot be litigated on appeal. That is, the appellate court does not litigate the facts of the case. It looks for errors in the application of the law. So the issue of whether your daughter made a knowing and voluntary waiver of the rights she gave up can be looked at on appeal, but not the facts involving the search.

You're going to need to find her a post conviction attorney and see if you can undo this, because her misdemeanor cannot be expunged in Virginia. A drug conviction can hurt her if she's getting Federal financial aid and can hinder her personally and professionally throughout her life.