General Questions about Family, bankruptcy, and criminal law.

I recently provided a variety of answers to various legal questions in VA and DC -- although these apply in concept to every state. I provide them here in my blog to help any others with similar concerns.

QUESTION: My wife and I are separated....if she gives me money that she owes me from the sale of the home she brought into our marriage will I incur any tax liability.

ANSWER: Yes. You will incur tax liability equal to your share of the sale of the house. If you re-invest the money in another property, or you meet the tax liability exemption for income from the sale of property, then you may avoid tax implications. Your best bet is to meet with an attorney and discuss the property settlement agreement, and your obligations/assets thereunder. If you need help with this, give us a ring!

QUESTION: My husband filed bankruptcy chapter 13 on his bills I did not I'm co on the house and he will not make payments and I do not make enough money to pay the loa what should I do?

ANSWER: Chapter 13 requires a restructuring of the debt under a bankruptcy plan. Until the plan is approved, there is a “stay” in place – you don’t need to pay anything. Once the plan is approved, your husband will have to pay under the terms of the plan. However, you need to make sure that you are not ALSO named in that chapter 13 plan. Now is NOT the time to play dumb. You need to review the paperwork he is filing and UNDERSTAND what is happening. This effects your life. Additionally, in VA, tenants by the entirety (i.e. property owned jointly by you and your spouse under the “entirety doctrine”) have special rules under bankruptcy provisions. You need to meet with a lawyer to discuss this. You can probably call his bankruptcy attorney to get some of these answers, but if the lawyer does not know, call us.

QUESTION: Hi I am getting out of an abusive relationship. I have two children with him. Recently, I pressed criminal charges against him for domestic abuse and will appear in court as a witness at the end of the summer. He has never held a job regularly, I have been the main breadwinner and have been head of household claiming our two children on taxes. My parents live in VA but don't have the resources or space in their house to house me and my two children until I can get on my feet, get a place/find a job and my daughter goes to kindergarten this upcoming fall. His parents who live all the way across the country have offered for us to come live with them and that they would help with everything until I get a job or further my education. What is the problem with starting over somewhere new? It's not like I am trying to take them away from him, I'm moving in with his parents across the country. Is there anything preventing me from taking my children to Oregon after fulfilling my duty as a witness in the criminal trial?

ANSWER: Nothing. As long as you don’t have any order from VA, you are free to take the children and go wherever you like. Parental kidnapping is only a problem when there is a court order. However, you run the risk of him filing in VA BEFORE you have six months at your new location. Under the UCCJEA (Uniform Child Custody and Jurisdiction Enforcement Act), you have to live in your new location, with the children, for six months before the Court there may entertain a motion or hearing on custody. If he files in VA before that time, you will have to return to VA to fight the case. That could be very expensive. We currently have a client who did what you are proposing – she moved to PA. However, the spouse did file, she ignored it, and the spouse got a custody order in VA (in her absence). She is now facing FBI kidnapping charges. Be very careful. If you would like to discuss UCCJEA or other provisions of child custody in VA/DC/MD – give us a ring at 703-402-2723 or admin@hanoverlawpc.com.

QUESTION: I was convicted of marijuana possession of less than an ounce in Washington D.C. about four years ago. I have yet to get the charge expunged, but I was wondering if I should still get it expunged or will it be dropped from my record since marijuana is legal in D.C. now?

ANSWER: No, it will not be dropped. Further, the laws in DC make expungement much more difficult for convictions. Generally, it is seven years, and only covers specific types of crimes. Drugs are not usually expunged. If you would like to discuss expungement further, give us a ring at 703-402-2723 or admin@hanoverlawpc.com.

QUESTION: Is it lawful for a felon in Virginia to own and/or possess a compound bow?

ANSWER: There is no provision preventing a felon from owning a bow. However, if you are convicted of any crime while in possession of the bow, it will be treated as an aggravated offense, and given your prior record, would carry severe penalties. I would avoid porting any type of weapon. However, a bow alone will not cause a problem for a felon – only a fire-arm. If you have questions about weapons or restrictions on felony convictions, give us a ring! 703-402-2723 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

Expungement and Letter of Good Conduct -- DC Rehabilitation Actions

A client came to our office on Friday, and asked the following question regarding expungement in DC:

I was accused of breaking and entering in Washington, DC in 2006. I pled out to a misdemeanor with no jail time. I long ago completed my probation -- is there something I can do to get this off my record? I heard that DC has a program to remove arrests, and was hoping you could help.

Good news! DC does have such a program. In fact, as far as rehabilitation goes, DC is by far one of, if not the most, liberal jurisdictions in the country. So what should you do to get a conviction off your record?

There are three methods for addressing criminal convictions on your record (this is really jurisdiction independent):

• Expunge your conviction: Two components to this --
  
  1. remove public access to the charge, disposition, and court record, and possibly;
  2. remove the arrest and police records from public access.
• Seek a Pardon: This removes all aspect of your case from the system (both arrest and court records), and erases the event itself.
• Partial Pardon/Letter of Good Standing (or Rehabilitation): This is a middle-of-the-road approach offered in some jurisdictions that permit the governor or mayor to indicate a convicted individual has rehabilitated. This can be cited when applying to jobs, etc.

Getting an Expungement in DC

In DC, the first determination is whether the convicted offense falls within an "expungeable" group, or is barred from any form of relief. That can be found ins DC Code 16-801 (definitions). The following are excluded from expungement in DC:

(9) "Ineligible misdemeanor" means:

(A) Interpersonal violence as defined in § 16‑1001(6)(B), intimate partner violence as defined in § 16‑1001(7), and intrafamily violence as defined in § 16‑1001(9).

(B) Driving while intoxicated, driving under the influence, and operating while impaired (§ 50‑2201.05);

(C) A misdemeanor offense for which sex offender registration is required pursuant to Chapter 40 of Title 22, whether or not the registration period has expired;

(D) Criminal abuse of a vulnerable adult (§ 22‑936(a));

(E) Interfering with access to a medical facility (§ 22‑1314.02);

(F) Possession of a pistol by a convicted felon (§ 22‑4503(a)(2) [see now § 22‑4503(a)(1)]);

(G) Failure to report child abuse (§ 4‑1321.07);

(H) Refusal or neglect of guardian to provide for child under 14 years of age (§ 22‑1102);

(I) Disorderly conduct (peeping tom) (§ 22‑1321);

(J) Misdemeanor sexual abuse (§ 22‑3006);

(K) Violating the Sex Offender Registration Act (§ 22‑4015);

(L) Violating child labor laws (§§ 32‑201 through 32‑224);

(M) Election/Petition fraud (§ 1‑1001.08);

(N) Public assistance fraud (§§ 4‑218.01 through 4‑218.05);

(O) Trademark counterfeiting (§ 22‑902(b)(1));

(P) Attempted trademark counterfeiting (§§ 22‑1803, 22‑902);

(Q) Fraud in the second degree (§ 22‑3222(b)(2));

(R) Attempted fraud (§§ 22‑1803, 22‑3222);

(S) Credit card fraud (§ 22‑3223(d)(2));

(T) Attempted credit card fraud (§ 22‑1803, 22-223) [§§ 22‑1803, 22‑3223];

(U) Misdemeanor insurance fraud (§ 22‑3225.03a);

(V) Attempted insurance fraud (§§ 22‑1803, 22‑3225.02, 22‑3225.03);

(W) Telephone fraud (§§ 22‑3226.06, 22‑3226.10(3));

(X) Attempted telephone fraud (§§ 22‑1803, 22‑3226.06, 22‑3226.10);

(Y) Identity theft, second degree (§§ 22‑3227.02, 22‑3227.03(b));

(Z) Attempted identify theft (§§ 22‑1803, 22‑3227.02, 22‑3227.03);

(AA) Fraudulent statements or failure to make statements to employee (§ 47‑4104);

(BB) Fraudulent withholding information or failure to supply information to employer (§ 47‑4105);

(CC) Fraud and false statements (§ 47‑4106);

(DD) False statement/dealer certificate (§ 50‑1501.04(a)(3));

(EE) False information/registration (§ 50‑1501.04(a)(3));

(FF) No school bus driver's license (18 DCMR § 1305.1);

(GG) False statement on Department of Motor Vehicles document (18 DCMR § 1104.1);

(HH) No permit - 2nd or greater offense (§ 50‑1401.01(d));

(II) Altered title (18 DCMR § 1104.3);

(JJ) Altered registration (18 DCMR § 1104.4);

(KK) No commercial driver's license (§ 50‑405);

(LL) A violation of building and housing code regulations;

(MM) A violation of the Public Utility Commission regulations; and

(NN) Attempt or conspiracy to commit any of the foregoing offenses (§§ 22‑1803, 22‑1805a).

Generally, all felonies are excluded from expungement.

Once you determine that the conviction can be expunged (i.e. is not in the list above), the following code sections control:

§ 16–802. Sealing of criminal records on grounds of actual innocence.
§ 16–803. Sealing of public criminal records in other cases.
§ 16–803.01. Sealing of arrest records of fugitives from justice.
§ 16–804. Motion to seal.
§ 16–805. Review by Court.
§ 16–806. Availability of sealed records.
§ 16–807. Savings provision.

Distilled, the code stipulates that a defendant must wait 2 years to seal and information related to qualifying misdemeanors/charges (those not on the list above). The petitioner (called a "movant") must wait 5 years from date of conviction for misdemeanors on the list above (called disqualifying convictions), and 10 years from the date of a felony conviction, to petition for sealing the record. There are provisions for early expungement for not-guilty, noll-prosequi, and deferred sentencing agreements. The code relevant code states:

(from DC Code 16-803)

(2) (A) If a period of at least 5 years has elapsed since the completion of the movant's sentence for a disqualifying misdemeanor conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying misdemeanor conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying misdemeanor conviction, except when the case terminated without a conviction as a result of the successful completion of a deferred sentencing agreement.

(B) If a period of at least 10 years has elapsed since the completion of the movant's sentence for a disqualifying felony conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying felony conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying felony conviction, except when the case terminated without conviction as the result of the successful completion of a deferred sentencing agreement.

A letter of good conduct/rehabilitation is also available in DC, regardless of the length of time since serving the last conviction. These are complicated, however, and you should speak to us about the steps to obtain such a letter in DC. Additionally, DC has strict guidelines that protect employers that hire individuals with prior criminal records. This is designed to encourage employers to reintegrate released men and women into the workforce. See DC Council amendments favoring employment of released individuals.

Do you need help handling a criminal conviction? Both post conviction relief and expungement related activity ar best done through an attorney. Contact us at 703-402-2723 or 1-800-579-9864. If you're eligible, we can help!.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.