Virginia Gang Crime Lawyer
One of the first times I ever sat in on a court hearing after beginning law school, I witnessed a bail review hearing for a young man being charged with selling weed. To provide some background, at the defendant’s previous arraignment, the judge set bail at $150,000 because the young man had a tattoo on his arm. At this arraignment, the prosecutor argued that the tattoo was gang-related and its lettering, which read “MOB,” stood for “member of the bloods,” a notorious street gang. The judge agreed with the prosecutor’s argument and set bail at a preposterously high rate.
At the bail hearing, the young man’s attorney stood up and argued that “MOB” was a completely innocuous acronym which did not have any affiliation with street gangs, but instead had a dual meaning – “mind over body” and/or “money over bitches.” After the crowd in the courtroom stopped laughing about the attorney’s serious tone when explaining the concept of “money over bitches,” the attorney pointed out another flaw in the prosecution’s argument. The attorney emphasized that, by virtue of the police report alone, it was patently absurd for the prosecutor to have argued that his client was a member of the bloods.
The attorney correctly pointed out that, per the police report, his client was arrested while wearing a blue hat. As most people know, a member of the Bloods would never wear a blue hat because blue is the color worn by Crips – the sworn rival of the Bloods. After the defendant’s attorney finished his argument, the judge released the defendant on his own recognizance with a promise to appear at a later date. In literally 3 minutes, bail went from in excess of $100,000 to zero.
As I watched this attorney deftly and successfully argue for his client, I remained puzzled why being in a gang made the crime of selling drugs more serious than a domestic violence charge or even an armed robbery.
Virginia Gang Crime Lawyer Explains Why Being in a Gang Can Enhance Criminal Penalties
Street gangs are generally agreed to have started in Los Angeles, CA, however, their popularity has spread across the country and they are now well-established in places like New York, Massachusetts, and even here in the Commonwealth. Because civilized society is terrified of the bandannas, face tattoos, and brutal violence, most states – the Commonwealth included – have enacted laws intended to deter gang membership and participation. Accordingly, being in a gang can not only result in bail hikes, but being in a gang is actually considered a crime in and of itself and a conviction can result in enhanced penalties.
Virginia Gang Crime Lawyer Explains Gang Sentencing Enhancement
According to Virginia law, a criminal street gang (1) is any ongoing organization or group of three or more people which, as one of it’s primary activities, engages in criminal activity; (2) has a name or identifiable sign or symbol; and (3) whose members individually or collectively have in engaged in the commission, attempted commission, conspiracy to commit, or solicitation of two or more predicate criminal acts – at least one of which is an act of violence. See Virginia Code § 18.2-46.1
Those who participate in a gang or participate in certain criminal activities for the benefit of, or at the direction of the gang, shall be guilty of a Class 5 felony. If the accused is aware or has reason to be aware that the gang includes a juvenile member or participant, then they shall be charged with a Class 4 felony which subjects the defendant to 2 to 10 years in prison. Violation of this statute constitutes a separate offense from the predicate or initial offense. See Virginia Code § 18.2-46.2
In other words, committing a crime for the benefit of the gang is subject to a separate, additional prison term. Prosecutors will argue for gang enhancements if they believe the defendant is a member of a gang and has acted for the gang’s benefit. But as a Virginia gang crime lawyer, I take issue with the broad reading of the term “for the benefit of the gang.” Indeed, personally motivated crimes have wrongfully been viewed as furthering a gang’s purpose. Likewise, crimes motivated by the hope of monetary gain – such as larceny, pimping, and drug sales – are all subject to the rebuttable presumption that the money obtained will be used for the benefit of the entire gang.
Because of the manner in which prosecutors attempt to connect any crime committed by an alleged gang member as being motivated by the purpose of benefiting the gang, it is important to hire a Virginia gang crime lawyer to help assure that you are avoid any sentencing enhancements.
Virginia Gang Crime Attorney Explains the Defenses He Can Assert on Your Behalf
My most fervent objection to gang crime enhancements is that they tend to be incompatible with our freedom of association – a freedom guaranteed by the first amendment. In fact, the biggest and most intimidating gang of them all might very well be the Fraternal Order of Police. Police get together and instill fear in the very citizens they are sworn to protect and are more than willing to beat, maim, brutalize, and wrongfully arrest anyone who stands in the way of their goals – irrespective of whether those goals are legitimate or not.
If someone you know is being charged with a gang-related crime, you Virginia gang crime attorney can assert a few of the following defenses:
- The defendant is simply not a gang member or is no longer actively participating in gang activity. The truth is, whether intentionally or unintentionally, racial profiling very often results in a misapplication of gang enhancement laws
- The defendant was not heavily involved in the gang and merely was involved by association because he/she was friends with another member. When a person claims to be a gang member but lacks an active, participatory role, this is generally referred to on the street to be a “buster,” “false claimer,” or “false flaggin’.” While on the street, being a “false claimer” is something negative, in a courtroom, being a “false claimer” can actually help you avoid being charged with a gang crime
- The prosecutor is using the enhancement as a means by which to rectify their lack of evidence for the underlying crime. Thus, they are attempting to obtain a conviction by convincing the jury that the defendant is a gang member without having to prove the elements of the underlying crime
- The “gang” is actually not a gang at all because they are not engaged in any sort of organized criminal activity. Likewise, they may lack a name or symbol and therefore, under Virginia law, are not subject to gang enhancement statutes
- The defendant did not commit the underlying crime required to charge him/her with the enhancement
- Arguing that the enhancement is not in the interests of justice by demonstrating that the crime was not committed for the “benefit of the gang”
An Example of How a Virginia Gang Crime Attorney Can Help
Steve is a former gang member who has turned his life around and is now a highly successful general contractor. He lives in Oakton with his wife and two children. On the way home from work, Fairfax police recognize him and initiate a traffic stop. Steve knows he has done nothing wrong and is not a member of any gangs. However, because of Steve’s record of prior felonies and trips to prison, he knows that he must be careful to not only avoid enemies of his former gang, but he must also avoid members of his former gang as well – given their displeasure with him for renouncing his gang affiliation. In order to protect himself, Steve carries a gun in his vehicle in case he or his family are ever in danger. Unfortunately, Steve does not possess a license to carry the gun.
The officer pulls Steve over under the pretext that he was following another vehicle too closely. After approaching Steve’s window, the officer states that he smells marijuana and tells Steve to step out of the car. Steve smoked a little weed with his co-worker after leaving his job, but he was fully capable of safely operating his vehicle. Steve refuses to perform any field sobriety tests or chemical tests and the officer places Steve under arrest for DUI without any evidence other than a faint smell of marijuana. Steve is booked for being a felon in possession of a firearm as well as DUI. Because of Steve’s prior record, he faces a long sentence in prison.
Steve hires a Virginia gang crime lawyer to help him with his case. Steve’s Virginia gang crime lawyer obtains video footage from two stores near the area in which Steve was stopped, as well as from the dashcam of the officer’s vehicle. These videos show that the officer was not justified in effectuating the traffic stop. Steve’s Virginia gang crime lawyer moves to suppress all evidence – including the gun – because the officer lacked probable cause for stopping Steve and also lacked probable cause for arresting Steve – which is what led to the officer discovering Steve’s gun in the first place. The motion is granted and the evidence is suppressed. Consequently, Steve’s Virginia gang crime lawyer persuades the prosecutor to dismiss the charges as no admissible evidence exists which could support the crimes Steve has been charged with. Steve’s Virginia gang crime lawyer notifies Steve that the matter has been dismissed.
Virginia Gang Crime Lawyer Explains Virginia’s Street Gang Laws
The definition of criminal gang activity is discussed above, as well its potential penalties. The section below deals with the other gang-related crimes which are subject to punishment under Virginia Law.
Recruitment of Persons for Criminal Street Gangs (Virginia Code § 18.2-46.3)
Any person who solicits, recruits, encourages, or attempts to cause a person to actively participate in or become a member of a criminal street gang is guilty of a Class 1 misdemeanor. If the person being recruited is a juvenile, then the crime is enhanced to a Class 6 felony. Likewise, if encouragement to join the gang or participate in gang activity is accomplished through the use of force or threats of death or bodily injury, then the crime will be charged as a Class 6 felony. If you have been charged with recruiting for a criminal street gang, it is imperative that you contact a Virginia gang crime lawyer with the knowledge and skill necessary to help.
Third or subsequent conviction of Criminal Street Gang Crimes (Virginia Code § 18.2-46.3:1)
Upon a felony conviction of § 18.2-46.2 or § 18.2-46.3, where it is alleged in the warrant, information or indictment on which a person is convicted that (i) such person has been previously convicted twice under any combination of § 18.2-46.2 or § 18.2-46.3, within 10 years of the third or subsequent offense, and (ii) each such offense occurred on different dates, such person is guilty of a Class 3 felony.
In other words, if a person has been previously convicted on two separate occasions of §§18.2-46.2 or 18.2-46.3 in the previous 10 years, the third offense shall be charged as a Class 3 felony.
Although it might not be clear to most people, mob-related crimes are often charged when there is an allegation of gang activity. A mob is any collection of people who are assembled for the purpose of committing an assault, battery, or other act of violence.
Any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in Virginia Code § 19.2-297.1, without authority of law, shall be deemed a “mob.”
Shooting or Stabbing with Intent to Kill or Maim (Virginia Code § 18.2-41)
Any person who is a member of a mob or gang who maliciously or unlawfully shoots, stabs, cuts, wounds, or causes bodily injury to any person with the intent to cause any such injury shall be charged with a Class 3 felony and shall face a sentence of between 5 to 30 years in prison. Given the severity of the sentence, if you have been charged with a mob-related crime, you will want to find the best Virginia gang crime lawyer you can to help defend your innocence.
Enhanced Punishment for Gang/Mob Activity in a School Zone (Virginia Code § 18.2-46.3:3)
Any person who engages in mob or gang activity in a school zone – whether public or private, elementary, middle, or school, or on any college or university – or upon public property within 1,000 feet of a school, will be charged with a felony and shall be sentenced to a mandatory minimum of two years to be served consecutively with any other sentence.
Contact a Virginia Gang Crime Lawyer Today for a Free Consultation
Even if you have yet to be charged with a gang-related offense, you are more than welcome to contact our office for a free consultation with a Virginia gang crime lawyer so that we can answer any questions you may have.
In Virginia, anyone who engages in gang activity can be charged with a crime even if they did not actually commit the crime themselves. The term “guilt by association” literally applies when it comes to Virginia’s gang crime laws. Accordingly, if you have been charged with any mob or gang-related crime, you should immediately contact an aggressive, highly skilled, and affordable Virginia gang crime lawyer who can help you avoid a conviction and spending any time in prison. Contact the Law Offices of Randall Sousa today for a free consultation with a highly skilled Fairfax criminal defense attorney who knows precisely how to help you obtain the best possible outcome in you gang crime case. 571-354-6164
If your child has been accused of a gang-related crime, you can obtain more information on how our office can help by viewing our pages on juvenile defense and school disciplinary hearings. Likewise, if you have been charged with a gang enhancement where the predicate crime involved the sale of drugs, please feel free to visit our Fairfax drug lawyer page to receive more information about how we can help you secure a favorable outcome as it relates to your underlying drug sales charges.
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Randall Sousa, Esq.
Fairfax Criminal Defense Attorney
Telephone: 571-354-6164 | Mobile: 571-328-6825
Toll Free: 800-875-6022
2920 District Ave. Suite 524
Fairfax, VA | 22031
By: Randall Sousa
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The Law Offices of Randall Sousa provides clients throughout Virginia with affordable, professional, and aggressive criminal defense legal services. If you have been arrested, charged with a crime, or are under investigation, call us now for a Free Consultation.
Fairfax Criminal Defense Attorney Randall Sousa possesses a deep commitment and passion for criminal defense, and he is relentless when it comes to fighting for his clients in each and every case.
Law Offices of Randall Sousa
2920 District Avenue Suite 524 Fairfax, VA 22031