Alcohol & Drugs: MIP, MIC, Intoxication Possession in VA - Is a Jury Worth It?

[jsdm]

court stalling on continuance - procedural newbie

Long story short, drug charge appealed to circuit court. Upon appealing I was given no choice on the court date, 4/15/08. Furthermore, I was told it would take 10 days before the appeal was processed, and not to send anything before then. This was on 3/6/08. So, as instructed, I waited ten days, and then some, before mailing my motion to continue to the DA's office on 3/21. On 3/31 I called the DA's office. They confirmed that my motion had been received but that they hadn't yet received the case file/the appeal hadn't yet been processed. I left my phone number and they said they would call me once it was received. Today, 4/8, I called again and they said that it still had not been processed. I left my phone number again and they assured me that they would call when, and if, the motion was granted.

Should I file a second motion to continue? I never sent a copy of the first motion addressed to the court (foolish me thinking simple motions should be simple), will this be an issue? I'm getting worried now as the set date is only a week away and by the way things are going it's possible that I'll have an exam on that day. Even if I don't have an exam, I don't want to have to go 200miles just to make an adjournment for being grossly unprepared (I want a trial jury). The reason stated on the first motion was for classes.

 

[jsdm]

Never mind, they got back to me today.

 

[jsdm]

In January I was stopped in Roanoke County, VA, while returning home from the holidays. I was written up for going 75 in a 60, and then asked that question that everyone here knows too well: "May I conduct a search of the vehicle?" Now I didn't know the law in VA, I don't live there. I do remember hearing that if you refuse a search in NY that they could suspend your license, though after reading through this forum some I'm beginning to think that was an urban legend. Still, I don't like the idea of someone poking through my car, especially then since I had a lot of junk in it - I don't travel light. So I said "Like I really have a choice?" Without falter he asked the question again, at which point I responded "I guess you can look around." To this he responded "Step out of the car." So much for for just looking around.

I was taken to his cohort at the back of the car while he conducted his search. I mentioned to the other officer that I would refuse if I could and he informed me that no such repercussions exist in VA. I was in the middle of talking to the second officer along those lines until the first officer came out proclaiming like a little school girl "Well what do we have here?" and the rest is history. Inside on the floor in the back of the car there was a tin with some pot inside. I didn't even know it was there.

So, at the mock up that they call district court, I filed a motion to suppress the search. The judge informed me that the suppression hearing would be held alongside the hearing, right then. I said that I wasn't prepared, and that if I'm going on trial, I want a jury. Apparently, district court doesn't allow juries, and that you have to appeal to circuit court. Why you can't just go directly to circuit court is beyond me. Given no chance of a plea bargain, I gave it my best shot. In retrospect, I should of asked for an adjournment and filed for discovery.

On the stand, for that pivotal question, the officer's testimony, as read from his notes, was

"...I asked the defendant if he had any drugs, alcohol ... (or the like) ... in the car, to which he replied no. ...I then told the defendant that he was free to go, but before he did may I asked if I may conduct a search of his vehicle. At first the defendant said nothing. I asked the question again, and he replied yes."

On cross, I asked "I notice you've paraphrased our interaction ... What were my exact words?"

"They were as I have written."
"You can't remember anything else?"
"No."
My heart sank. I then put forward my own testimony,
"When asked by the officer if he could conduct a search, I said that 'I guess you could look around, just don't tear anything apart.' " Mind you, I wasn't planning on testifying anything. The judge asked me if I could remember him telling me if I was free to go. I said I don't remember him saying it, but that I don't dispute it. The judge also asked if there was any point during the search that I tried to object, and I said (pretty much) no. I told her about my conversation with the other officer..

So it came down to his word over mine. He screwed any chance of a defense over the speeding ticket as well, as in his testimony he stated that there were no other cars around. Bullshit. I tried anyway, and asked if he knew what the beam angle of his radar gun was. He said he had no clue, but that he had proof that it was calibrated. I said I wasn't asking for or disputing that. I also offered in my testimony that there were other cars on the road, for what good it did.

I appealed, and immediately after that visited their law library and photocopied some hopefully useful forms. Given no choice of court date, I filed continuance. The DA only finally got back to me today about setting the date (right now it's scheduled for the 15th.) However, before they can set the date they need to know now if I want trial by Jury. Today was also the first day I've heard of how much it costs for a Jury. The potential court fees for appealing to district court are already as much as my potential fines would be, and the cost of a Jury would nearly double the court fees. I don't have bottomless pockets, if I did I could hire a lawyer better than myself. As it is, this all the money I have in my savings account. I was hoping to go for the informed Jury defense but now I'm debating if it could even work, and if it's all worth it. I've since learned that financial aid is rescinded only if it the offense occurs during the time it was being received and this technically happened before the semester began. I don't want this on my record either, but I get the feeling that even winning it would still show up in a background report.

So, how well does the informed jury approach work? Is it any more or less likely to work in an isolated town like Salem, VA? The quantity, as testified by the officer, was 0.7 grams. It's not like I was driving stoned (though VA has a mandatory 6 month drivers suspension for a possession charge anyway). Hell, when getting grilled by the second officer I offered to take a blood test. He shut up, although he wouldn't perform the test.

I have other questions too, but right now I really need some advice regarding the Jury. I need to call the DA on Monday about it. I am toying with the idea of subpoenaing the second officer as a witness, but I am doubting it'll help as his testimony will probably be much like the main officer's.