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Frequently Asked Questions in Virginia Criminal Defense, Family Law and Estate Planning

Below are answers to some questions commonly asked by people seeking information about criminal law, family law or estate planning in Virginia. If you have other questions or have a specific legal need in any of these areas or in other areas such as personal injury, business law or bankruptcy, contact Farmer Legal in Glen Allen for advice and assistance from a Virginia attorney dedicated to serving your legal needs.

Q. Can the police search my car without a warrant?

A. At its core, the Fourth Amendment to the U.S. Constitution requires that all searches be reasonable. In most cases, this means there must be probable cause to initiate and conduct a search, and the search is often conducted pursuant to a warrant. However, there are many instances where a warrant may not be required, and automobile searches are actually a complicated area of law. The thing you need to know is whether the police are asking your permission to conduct a search or are telling you they are going to search. If the police are asking for your consent, they probably don’t have cause to search unless you give them permission, and you are fully within your rights to politely but firmly refuse to give your consent.

On the other hand, if the police tell you they have the right to search, even without a warrant, you should not try to interfere with them. Your attorney will investigate the circumstances surrounding the search and determine whether it was constitutional or not. If it wasn’t, your lawyer can probably get the evidence suppressed or even have the case dismissed.

Q. Can I refuse to take a breath test if I get pulled over?

If the officer has probable cause to believe you are guilty of driving under the influence (DUI), you can be arrested and required by law to take a blood or breath test of your blood alcohol content. Refusing to take the test will result in an automatic one-year suspension of your driver’s license if this is your first offense. In addition, evidence of your refusal can be used as evidence against you in court. If this is the second or third time you have refused a test, your license can be suspended for three years. Also, you can be convicted of a separate misdemeanor offense for refusing to take a test when required.

Sometimes, the police may ask you to take a preliminary breath test or a field sobriety test. Field tests are tests of your thinking, balance and motor skills, but many of them are subjective and nonscientific. The police use these tests to establish probable cause when they don’t think they have enough evidence yet to arrest you for drunk driving. It is important to understand whether the police are asking you to take a breath test or are requiring it. You have the right to refuse to take a preliminary breath test, and the police cannot arrest you unless they have other evidence which establishes probable cause to believe you are DUI.

Q. How is property divided in a divorce?

A. One of the main issues in a divorce is deciding how the marital property will be divided. If the spouses can agree on how to divide the property between them, the court will enforce and uphold that agreement. If they cannot agree, then the judge will decide following a trial. The division of marital property does not have to be equal, but it should be fair or equitable. Courts look at a variety of factors in the property settlement. In order to ensure a fair distribution, it is very important to be represented by an attorney who can make sure every asset (and debt) is properly accounted for, properly characterized as marital or separate property, and correctly valued. Farmer Legal can help you if a spouse is hiding assets or if your divorce includes property which is difficult to value, such as the ownership in a business, stock options or an interest in a pension or profit-sharing plan.

Q. What do I do with a living will after I make it?

A. Excellent question. A living will is an important document that lets family members and medical personnel know how you wish to be treated in the event of a medical emergency, including lifesaving measures and end-of-life decisions. But what good is the document if your loved ones or the medical community don’t even know you have a living will? The Virginia Department of Health maintains an Advance Health Care Directive Registry, where you can store your Advance Health Care Directive, Health Care Power of Attorney, Declaration of Anatomical Gift, and other similar “living will” documents. This database is secure and confidential but still accessible by medical providers, emergency responders, family members and others whom you designate as able to access the registry.

Storing your documents in the registry is very helpful to make sure these documents are given effect if needed, but you should also discuss your living will with your family so that they know your wishes. It’s also a good idea to keep a copy of your living will and other such directives in a secure place at home or in a safety deposit box, and let family members or trusted individuals know where to look in case of emergency.

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