Virginia Criminal and Traffic Law Blog

Timing of Convictions Essential for Felony DWI

In Virginia, a third offense driving while intoxicated within a 10 year period is punishable as a felony.  In a recent decision, Stewart v. Commonwealth, the Court of Appeals reversed a Winchester Circuit Court's guilty finding on a felony DWI because the Commonwealth failed to prove that the instant offense was actually a third within 10 years.  The Court of Appeals stressed that the timing element of prior convictions must also be proven beyond a reasonable doubt in order for a felony DWI conviction to stand.

In the Stewart case, the Commonwealth introduced evidence of an arrest warrant for a second offense DWI within 5 years, as well as a circuit dispositional order for a second offense DWI.  However, no evidence was presented that the second offense DWI conviction in circuit court occurred within 5 years of the defendant's first offense DWI.  The problem belying the Commonwealth in this situation was that after a conviction of second offense in general district court, the defendant appealed his case to circuit court.  As a result of this de novo appeal, the defendant was entitled to a brand new trial as if nothing had happened in general district court.  Consequently, the defendant was also required to be rearraigned by the Court on the charge, meaning the official reading of the charge and entry of a plea.  The circuit court dispositional order only reflected a guilty plea to "DWI, 2nd offense" - it did not specify that it had occurred within 5 years of the first conviction.

Because the Commonwealth failed to introduce any other evidence that the defendant pled guilty to and was found guilty of a second offense DWI within 5 years (e.g., DMV record, transcript of circuit court arraignment, etc.), the Court of Appeals determined that the trial court erred in convictin and sentencing the defendant to a third offense (felony) DWI. 

The defendant also alleged that the Commonwealth failed to prove her first conviction occurred in Virginia, and if it did not, that the foreign statute under which she was convicted was substantially similar to Virginia's DWI statute.  The Court of Appeals, though, reaffirmed that a presumption exists in the favor of the Commonwealth that prior convictions are consistent with the Virginia DWI statute.  The defendant therefore bears the burden of proving that a prior conviction is inconsistent with Virginia the Virginia statute.  In the absence of any rebutting evidence, the trial court must presume that prior convictions are admissible for purposes of enhancing DWI penalties.

You've Been Busted With Pot - Now What?

So the police have charged you with possession of marijuana.  What does that mean in the state of Virginia?  Marijuana possession is prohibited by Virginia Code Section 18.2-250.1.  A first offense is categorized as an unclassified misdemeanor, and punishable by a maximum of 30 days in jail and a $500 fine.  A second offense is categorized as a class 1 misdemeanor, an offense that carries a potential maximum punishment of 12 months in jail and a $2500 fine.  A conviction for marijuana possession also carries with it a six month suspension of your driver's license.

When prosecuting drug possession cases, the state must prove that you either knowingly or intentionally possessed marijuana.  Practically speaking, the prosecutor must prove beyond a reasonable doubt two different things.  First, it must be demonstrated that you were aware you were in the possession of marijuana, and second, that you knew or should have known that the substance in your possession was actually marijuana.   Possession may be actual or constructive.  An example of actual possession would be finding a joint in your coat pocket, while constructive possession might be finding a bag of pot in the glove compartment of your car.  In the first circumstance, the illegal drugs are on your person, while in the second scenario, they are not on your person, but are in an area that is under your control.

For obvious reasons, allegations of constructive possession are easier to defend against than actual possession.  In fact, the code section prohibiting marijuana possession states that no presumption of knowing or intentional possession shall arise simply because the marijuana was found on the premises or in the vehicle that you owned or were occupying.  Refer back to the marijuana in the glove compartment.  By itself the location of the drugs is not sufficient to convict you.  However, if the police present evidence that the vehicle was registered in your name, that you were the only one in the vehicle when the drugs were found, that you had other personal items in the glove compartment, and the vehicle smelled like marijuana, that additional evidence could prove beyond a reasonable doubt that constructively possessed the marijuana.

Even if the the state has enough evidence to secure a conviction for possession of marijuana, there is still a chance you may be able to escape from this situation without a conviction.  If this is your first possession offense, the court has the option of deferring disposition of your case for 6 months.  During that 6 months, you will be on community probation and will be required to remain drug and alcohol free.  You will be subjected to random urine screens to test for the presence of drugs and alcohol.  As part of the probation you will also be required to submit to a substance abuse screening and treatment program if necessary.  Additionally, you will have to perform a set amount of community service, in most marijuana cases no more than 24 hours.  The court may impose any other terms and conditions of probation that it sees fit for your individual situation.  Finally, your driver's license will be suspended during your 6 month probationary period.  However, we can request that the judge issue you a restricted license so that you can drive to and from work, school, doctor's appointments, court related appointments and child care services.  While this may seem like a lot of work on your part, it is worth it in the long run.  If at the end of the 6 months you have satisfied all the terms and conditions, the judge will dismiss the charge without entering a finding of guilt.  However, if you fail to satisfy any conditions of the deferred disposition, the judge will find you guilty and sentence you accordingly.

If you have been charged with a marijuana, narcotic, or prescription drug offense, please contact our office at (804)217-9898 to discuss your charge and what options you may have.  Attorney Charles Homiller regularly represents individuals across the Central Virginia region who have been charged with drug offenses, as well as most other criminal and traffic offenses.

Unreasonable Refusal Statute Deemed Constitutional

Falling in line with a majority of other states, the Virginia Court of Appeals recently upheld the constitutional validity of the statute criminalizing an unreasonable refusal to submit to a blood or breath test when charged with DWI.  The case of Rowley v. Commonwealth presented a challenge to Virginia Code Section 18.2-268.3 alleging that it violated the protections afforded by the Fourth and Fifth Amendments to the US Constitution. 

Section 18.2-268.3, which is a provision of the Virginia implied consent law, requires an individual arrested on suspicion of DWI to provide a sample of his breath or blood for a determination of his blood alcohol content.  This requirement is imposed by one's operation of a motor vehicle on the highways of the state of Virginia.  By using the roads of Virginia, you are impliedly consenting to the taking of this sample by the police.  A refusal to submit to the test, whether expressly or by actions that prevent the test from being administered, will result in a charge of unreasonably refusing to submit to the test.  A first offense carries with it a 12 month license suspension for which a restricted license is not available.  Upon conviction of a second offense, the court may impose jail time.

In the Rowley case, the defendant argues on appeal that the refusal statute violated his fifth amendment right against self-incrimination.  His argument more or less contended that the state could not compel him to produce evidence against himself by requiring his submission to a blood or breath test.  The Court of Appeals, however, found that one's right against self-incrimination is limited only to testimonial communications, meaning evidence that would be given verbally.  A blood or breath test, according to the court, is non-testimonial in nature, just as fingerprints, voice recordings, and suspect lineups are non-testimonial.  Moreover, the court refused to find that compelled submission to a breath test was transformed into testimonial evidence merely because criminal prosecution was the outcome for failing to comply.

The court in Rowley also determined that the refusal statute did not violate an individual's right against unreasonable searches and seizures under the Fourth Amendment of the US Constitution.   The police typically may not search an individual without a warrant or probable cause, or else the fruits of the search will be deemed inadmissibile as evidence since they resulted from an unreasonable search.  However, a person's consent to a search will obviate the need for a warrant or probable cause, thus allowing the police to conduct a legally effective search.  Because, as stated above, one's use of the roads of Virginia results in an implied consent to the blood or breath test, the court found that the statute compelling such test does not violate the Fourth Amendment.

While the majority of courts have upheld the constitutionality of so-called DUI refusal statutes, this is a perfect example of how DUI prosecution defies legal logic.  To compare the taking of one's blood or breath to fingerprinting or voiceprinting is comparing apples to oranges.  The former is an intrusion into one's body, while the other is not.  One's blood alcohol content is not a physical characteristic that is being displayed in plain view for all to see.  Certainly a person's gait, balance, speech pattern, and other external physical indicators of intoxication are nontestimonial evidence that can be admitted against a defendant.  However, to compel an intrusion into a person's body to acquire scientific evidence of intoxication for the purpose of prosecuting that person, all under the threat of separate prosecution for a failure to comply, falls well within the protections afforded by the Fifth Amendment.  If it walks like a duck, and quacks like a duck.....I guess we must conduct a blood or breath test to make sure it is a duck.

Starting With A Clean Slate - Expungement In Virginia

In a typical week, I will receive several phone calls or email from persons wanting to "expunge" a charge from their criminal record.  Many times this is desired because of a job application, but other reasons include personal dignity, adoption, foster care or other situations that require background checks.  Unfortunately, most of the people I speak to are not eligible for expungement, even though they claim that a charge was "dismissed" against them.  Virginia law has strict requirements for when an expungement of a criminal charge is available to a citizen, and even when available, there is still no guarantee a court will grant it.

So when is someone eligible to have a criminal charge expunged?  Virginia Code Section 19.2-392.2 is the governing statute, and sets forth three situations.  The first is if you are found not guilty of a charge by the court.  The second is if the commonwealth attorney takes a nolle prosequi or the charge is otherwise dismissed against the defendant.  Third, an expungement may be ordered if the defendant is granted an absolute pardon for a crime of which he was unjustly convicted.  The key to remember with all three scenarios is that an expungement will only be available to a defendant who is innocent.

With that being said, some types of misdemanor crimes are dismissed by courts after taking the case "under advisement" for a period of time.  This scenario usually follows a finding by the judge that there is sufficient evidence to make a finding of guilt.  However, instead of convicting and sentencing the defendant, the court may order community service to be completed, restitution to be paid, unsupervised probation, or any number of other conditions.  Following a duration of time set by the court, if all the conditions have been met by the defendant, the court will dismiss the charge against the defendant.  Examples of offenses where this type of arrangement is found include possession of marijuana, domestic or simple assault, and shoplifting. 

As you recall, the expungement statute states that a charge "otherwise dismissed" may be eligible for expungement.  However, the Supreme Court has interpreted the statute as not to include the situation I described above, where a defendant must satisfy certain conditions set by the court in order to achieve a dismissal of the charge against him.  The theory behind this is that expungement is an option only available to innocent persons.  The Supreme Court does not connote innocence to situations in which the court finds there is enough evidence to support a guilty conviction, but allows the defendant an opportunity to make up for the mistake by performing certain acts or remaining out of trouble.

The bottom line with expungement is that it is not an available option if you have been found guilty of an offense, or if you have satisfied certain conditions in order to obtain a dismissal.  Only when a judge declares you not guilty, the commonwealth nolle prosses your case, or you are pardoned for an unjust conviction can you petition the circuit court for an expungement.

If you have been acquitted of a criminal offense or had the charge nolle prossed or dismissed, contact the Law Office of Charles Homiller at (804)523-2999 for information on how to get it erased from your record.   Our experienced criminal defense practice is dedicated to preserving your dignity and livelihood when you have been wrongfully accused of a crime.

Felony v. Misdemeanor

What is the difference between a felony and a misdemeanor in the Commonwealth of Virginia?  The simple answer is the punishment that one can receive for conviction of a crime.  Felonies are crimes that are punishable by death or imprisonment in a state correctional facility (prison).  All other crimes are considered misdemeanors.  Misdemeanor incarceration, which may not exceed 12 months, typically takes place at locally run facilities, such as county or regional jails. 

Misdemanors are divided into four classes, with Class 1 being the most serious.  The maximum punishments for the different classes of misdemanors are as follows:

Class 1:  12 months in jail; $2500 fine
Class 2:   6 months in jail; $1000 fine
Class 3:  $500 fine
Class 4:  $250 fine

Felonies are divided into six classes, again with Class 1 being the most serious.  The maximum punishments for the different classes of felonies are as follows:

Class 1:  Death, if older than 16 at time of offense and not mentally retarded; or,
              Life imprisonment and/or $100,000 fine
              *** If defendant is less than 16 at time of offense or is mentally retarded, death
                   penalty is not authorized.
Class 2:  20 years to life imprisonment and/or $100,000 fine
Class 3:  5-20 years imprisonment and/or $100,000 fine
Class 4:  2-10 years imprisonment and/or $100,000 fine
Class 5:  1-10 years imprisonment or 12 months in jail; $2,500 fine
Class 6:  1-5 years imprisonment or 12 months in jail; $2,500 fine

Certain crimes, such as grand larceny, are termed unclassified felonies.  This is because the punishment for conviction of these crimes is defined by the specific statute criminalizing the offense, not by the general guidelines described above.

Increased Fines on First Time Offenders

Take a look at this article from The Daily Press in Hampton Roads about proposed legislation to increase traffic fines to fund transportation projects.  The proposed bill would impose an additional $100 fine for traffic offenses that carry penalties of four demerit points.  Such offenses include speeding 10-19, failure to use a turn signal and following too closely.  But it does not end there. 

If you carry a balance of at least 4 demerit points, you will be assessed an annual penalty of $100, plus another $75 fine for each additional demerit point beyond four.  The bill has been labeled an "abusive driver" bill, despite the fact that only two violations could subject a person to these stiffer penalties. 

The problem I have with this bill is the potential collateral effects it could have on the judicial system as well as the general population.  A large segment of our population already does not have the financial ability to pay for traffic fines assessed to them.  As a result, many violators have their licenses suspended for not paying the fines, but continue to drive out of necessity.  I am in no way condoning such behavior, but at the same time realize that for some, there may be no other way to get to work, the doctor, the grocery store, etc.  If the General Assembly were to pass this bill, we will only see an increase in this problem as more people will be unable to afford the fines being proposed.  Our court system will subsequently become even more congested than it currently is.  Anyone who has spent a morning in traffic court can attest that it can be as bad if not worse than waiting at DMV. 

Interesting to note that a patron of this bill, David Albo, is a prominent Northern Virginia defense attorney.  Northern Virginia, revenue for highway projects?  You do the math.

Court Dismisses DWI Based On Hospital Records

     On Wednesday, January 25, 2006, Henrico County Circuit Court Judge Gary A. Hicks dismissed a charge of driving under the influence because of a flaw in the Commonwealth's evidence.  Prosecutors attempted to prove the defendant's blood alcohol content (BAC) by introducing hospital records made during the course of treatment.  The Commonwealth argued that this records were admissible under Virginia Code Section 19.2-187.02, which permits medical providers to disclose private healthcare records containing blood alcohol results for the purpose of DWI prosecutions.  Charles J. Homiller, attorney for the defendant, argued that the records should not be admissible, or at least not credible, because the statute circumvents Virginia's implied consent law and in no way regulates the collection of blood like the implied consent law does.

     The case involved a defendant who was involved in a single vehicle accident late at night.  When the police arrived on scene, the defendant was already being prepared for transport by paramedics to the hospital.  The defendant had suffered a significant head injury, which required immmediate trauma care attention.  While at the Virginia Commonwealth University Medical Center in Richmond, Virginia, the defendant was treated for his injuries, part of which required the drawing of his blood.  While in the emergency room, the defendant was questioned by Henrico County Police about the accident and his alcohol consumption.  Based on the responses he received from the defendant, as well as the surrounding circumstances, the officer admitted at trial that he believed he had probable cause to arrest the defendant for driving while intoxicated.  However, the officer did not arrest the defendant at that time, even though he was within the three hour window required by the implied consent statute.  When asked why he did not arrest the defendant and have his blood drawn under the implied consent statute, the officer responded that he knew the hospital would draw it, therefore he didn't have to.

     Instead, two and a half weeks after the accident, the officer obtained a search warrant for the defendant's medical records to produce evidence of his blood alcohol content.  Based on that information, the officer proceeded to arrest the defendant for driving while intoxicated. 

     The implied consent statute, which requires a defendant to submit to a blolod or breath test if arrested within three hours of the alleged offense, prescribes certain qualifications and procedures that must be met and followed during the blood collection process.  While a deviation from any of the procedures will not necessarily render the evidence inadmissible, the credibility of that evidence may be called into question.  Additionally, the implied consent law grants the defendant the ability to request an independent analysis of the blood sample to verify the result obtained by the state.  In this case, however,  the implied consent statute was not invoked because the defendant was not arrested within three hours of the alleged offense.

     In issuing his decision, Judge Hicks stated that he was concerned with the lack of evidence concerning the blood collection procedure.  No evidence was presented by the Commonwealth concerning the qualifications of the person drawing and/or analyzing the blood, the procedure used to collect and store the blood, or the time the blood was collected and tested.  The Commonwealth argued that based on 19.2-187.02, there was no requirement that the state put on evidence concerning these issues.  However, Judge Hicks agreed with defense counsel that the manner in which the blood alcohol results were obtained created enough doubt about the reliability of the evidence as to render it inadmissible.

     This decision is important to persons charged with DUI/DWI in the wake of the controversy over the constitutionality of the per se presumption of intoxication.  This holding would disallow the Commonwealth from merely presenting a person's protected medical records as proof of intoxication without providing evidence that the blood was collected in a suitable manner.  Moreover, it would limit the Commonwealth's ability to issue a search warrant for such records and hide behind 19.2-187.02 instead of following the requirements of the implied consent law.

Virginia DUI statute held to be constitutional

     A much anticipated  opinion by a northern Virginia judge has upheld the constitutionality of the Virginia DUI statute.  Fairfax County Circuit Court Judge Robert W. Woolridge Jr. issued the first written opinion on the recently contested issue raised by general district court judge Ian O'Flaherty last summer.  Contestants of the DUI statute, however, did score a partial victory when Woolridge also determined that the application of a per se presumption of intoxication because a person's blood alcohol level meets a certain numerical threshold would not be constitutional.

     O'Flaherty began dismissing DUI cases last year after the argument was raised that the presumption of intoxication embedded in the Virginia DUI statute unfairly shifted the burden of proof from the Commonwealth to the defendant.  Such a burden shift violates a defendant's right to be presumed innocent until proven guilty.  Additionally, O'Flaherty felt that the "rebuttal defense" provided to a defendant under the statute violated one's right to remain silent.  Finally, O'Flaherty called into question the reliability of a presumption that arises from scientific testing that may occur anywhere from 30 minutes to 3 hours after the alleged offense is committed.

     While both prosecutors and defense attorneys have claimed victory after Woolridge's ruling, opponents of the current DUI law seem to have chipped away at the DUI exception to the Constitution.  The decision essentially precludes a judge or jury from deciding that a defendant is guilty of driving under the influence merely because his blood alcohol content is .08 or higher.  Woolridge determined that while a presumption would be unconstitutional, an inference of intoxication would not be.  However, if the defendant can produce evidence that he was not intoxicated at the time of the offense, the burden of proof then shifts back to the prosecution, and the defendant could be found not guilty even with a blood alcohol level of .08 or higher. 

     Regardless of this decision, most circuits in the state of Virginia have failed to address this issue fully.  Moreover, just because one circuit court justice takes this opinion does not make it binding on others.  Until the issue reaches the Supreme Court of Virginia for a final opinion, individuals will continue to have to challenge the unconstituional presumption of intoxication found in the DUI statute.