NOVA Legal Beat

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. I’m a federal employee, and between all the furloughs brought by sequestration and the shutdown, I’m starting to have trouble paying my bills. I know financial problems can lead to the revocation of security clearance, but will one or two missed payments result in that outcome?

A. Financial problems have sunk the careers of many federal employees who lost their security clearance. In many cases, however, the root of the revocation lies less in the fact that the employee incurred a debt that he or she did not immediately pay than in the fact that he or she did little or nothing to resolve the problem. Under the “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information,” an :unwillingness or inability to satisfy debts” could disqualify an employee for security clearance.

Employees, generally, should not expect to receive a Letter of Intent/Statement of Reasons (LOI/SOR) detailing the government’s plan to revoke their security clearance right after they default on a payment. Usually an LOI/SOR will come after a reinvestigation, which could occur every five, 10 or 15 years, depending on the type of security clearance. What will make the difference between keeping or losing a security clearance will be the employee’s efforts to satisfy his or her obligations. These efforts could include paying the debt in full, arranging with the creditor a payment plan or filing for bankruptcy.

Above all, anyone who has received an LOI/SOR should request a hearing at the Defense Office of Hearings and Appeals (DOHA) or whichever other agency has jurisdiction to hear their security clearance appeal. Being represented by a qualified attorney with proven experience in security clearance litigation can also be very important, as is ensuring the DOHA administrative judge is provided with the most current and accurate financial information and is aware of all steps you have taken to improve your financial situation.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. Is a police officer allowed to search my car if he pulls me over for running a red light? Can I oppose any such search?

A. One of the most confusing aspects of the law for ordinary citizens regards what is and what is not permissible during a traffic stop. In fact, it sometimes confuses attorneys! Under ordinary circumstances, an officer is not permitted to search your vehicle just because you ran a red light. There has to be probable cause that a crime is being committed before searching your vehicle. A commonly used basis for probable cause is an “odor” of marijuana. Absent such an odor or other similar probable cause, there would be no basis for a search.

However, the officer is allowed to ask you to leave the car, which can allow them to frisk you for weapons and other dangerous items. This frisk can of course lead to the discovery of non-dangerous, but otherwise illegal items. Additionally, you can be arrested and a search can be conducted to inventory your car for “safekeeping” purposes. If they discover an illegal item then you can be in big trouble. Also, if you consent to a search, then they can of course search your vehicle. The law on this is very detailed and fact-oriented, so generalized advice may not apply to your circumstance.

If you’re asked to consent to a search, you should absolutely decline that request. There is no good reason to consent. Many defendants, knowing there is contraband in their car, have consented to a search because they think an officer won’t search if they agree to it. Needless to say, the search occurred and they had no defense to it. If an officer searches or threatens to search your vehicle, do not volunteer information to them. You could eliminate any defense you may have at court.

Absent probable cause on the scene, the officer cannot conduct a search without your consent. They may be on a fishing expedition for contraband – don’t take the bait by consenting! If a search was conducted without your consent, you need to notify your attorney as soon as representation begins. A motion to suppress is required to contest the validity of the search and exclude the results of it from trial, and that motion may need to be heard prior to your trial date. An experienced attorney can walk you through a thorny area of the law.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. I’ve heard a lot in the news recently about people leaving their children in cars and being prosecuted for it. Is this for real? When I was young I remember being left in the car alone and I turned out fine. Could I really go to jail for doing the same now?

A. Yes, you definitely can find yourself in jail for leaving your child in the car alone, which can be a pretty bad outcome for a few minutes of oversight (not even considering the harm that could occur to the child).

All of us are aware of the types of cases in the news that result in serious injury or death. These offenses are known as felony child neglect in Virginia and are punishable by up to 10 years in jail and up to a $100,000 fine. When there has been no serious injury, but the child’s health was recklessly endangered, you can face a felony conviction and up to five years in jail.

Even in mild cases, parents who leave their kids in the car alone can face prosecution. Leaving a child in a car for five to 10 minutes can result in a misdemeanor conviction for the charge commonly known as “contributing to the delinquency of a minor.” Misdemeanors carry up to 12 months in jail. This is a catch-all statute that covers all manors of supposedly harmful actions toward a child, including leaving him or her alone for a period of time.

Judges in this area take these offenses very seriously, so if you’re faced with such a charge, it is not something to take lightly.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. I am a single mother who, up until recently, had been getting along well with my child’s father. Recently he has started talking more and more about changing our child’s last name to his. I’m very lukewarm to the idea and want to know how he might change our son’s name.

A. Changing a child’s name requires a court order, even in cases where there is agreement. Either parent can petition the court on the child’s behalf. If the other parent objects, the court will hold a hearing on the matter. The standard of proof required is a showing that the name change is in the best interest of the child.

So how does the court determine if the change is in the best interest of the child when the parents are at loggerheads? There are four main factors considered by the court: (1) whether the objecting parent had abandoned ordinary parent-child ties; (2) the parent has engaged in conduct that would embarrass the child in continuing to use the name; (3) the child will suffer detriment by continuing to bear the name; and (4) the child desires for the name to be changed.

Saving the child or a parent from a minor inconvenience or embarrassment are not sufficient reasons for the change. When it comes to name changes, the assistance of an attorney can be invaluable in protecting your child’s best interests.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. An ex-girlfriend of mine is alleging that I am the father of her child. We haven’t dated for almost a year and haven’t talked since the breakup. I doubt that the child is mine. What can I do to ensure I don’t get stuck paying for a kid that’s not mine?

A. From the sound of it, your ex-girlfriend is seeking support and maintenance for her child either directly from you or in the form of assistance from the state. When there is no legal father already established (either on the birth certificate or being married at the time of the child’s birth), she is required to identify the probable father. Once she has identified a probable father, the Division of Child Support will initiate child support proceedings against that father. These proceedings include establishing paternity and then establishing support.

When it comes to paternity, you can either acknowledge it voluntarily or ask for a DNA test, which you will pay for if it’s proven that you’re the father. If you have any doubt as to whether you’re the father, you absolutely need to have the DNA test performed; otherwise you will be ordered to pay support.

If the DNA test comes back that you’re not the father, there is nothing else to be done on your part. If it shows that you’re the father, support will be established based on your income and other factors. Also, if paternity is established, make sure that you participate in the process establishing support to ensure that any support amount ordered is appropriate. If there is anything more complex than just looking at pay stubs, you will want to consult an attorney because there are a lot of financial considerations and factors that can go into determining support.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. If you get pulled over, what is the best way to respond to a police officer’s question of “Do you know how fast you were going?”

A. Of all the questions that we attorneys get, this is definitely one of the most common. At some point, almost everyone who drives will have some encounter with the police and nothing causes more anxiety than what to say. Since any statements will be used against you in court, it is of the utmost importance that you don’t incriminate yourself. Otherwise you may ruin any chance you have to contest the inevitable ticket.

However, you also do not want to lie to the police officer either. Experienced officers have heard just about any excuse or lie you may come up with, and they won’t get you out of the ticket. One of the biggest factors considered by the Commonwealth in any plea negotiations is your attitude towards the police officer, and lying may short-circuit any negotiations before they start.

So what is a driver to do when admitting guilt or lying about it can cause you problems at court? My recommendation is simply to express uncertainty or ask the officer to tell you how fast you were going. One of the most common issues in speeding cases is the calibration of speedometers, so it is quite likely you weren’t going exactly the same speed you thought you were anyway. The most important thing is to be polite, courteous, and non-argumentative with any police officer. Even the most skilled orators are not likely to talk their way out of a ticket, so why risk aggravating the officer and ruining any chances of leniency at court? The best advice is to say nothing substantive and let your attorney handle the talking at court.

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Editor’s Note: This new sponsored Q&A column is written by Mathew B. Tully of Tully Rinckey PLLC.

Question: My boss recently expressed concern about my performance — that I was “slipping up”. I suffer from ADHD and the issues that he noted with my performance are consistent with my symptoms — does this count as a disability under the Rehabilitation Act?

A. Likely yes. In order to state a claim under the Rehabilitation Act, the employee must show that he or she has a disability that substantially limits one or more major life activities. The Equal Employment Opportunity Commission has defined major life activities as “[f]unctions such as . . . learning, reading, concentrating, thinking, communicating, [and] interacting with others.”

The Commission also recognizes disabilities that limit brain function. In its regulations, the Commission has stated that “it should be easily concluded” that major depressive disorder, bipolar disorder, post-traumatic stress disorder, and intellectual disabilities substantially limit brain function.

However, the determination of whether an impairment constitutes a disability is made on a case-by-case basis, and the Commission recognizes in its regulations that “not every impairment will constitute a disability.” Therefore, if you can demonstrate that your Attention Deficit-Hyperactivity Disorder substantially limits a major life activity then you will likely be covered under the law.

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