The Best Offense is a Good Defense

What is Aggressive Driving?

     Having discussed previously the reckless driving statute, I will take a second to explain Virginia's aggressive driving statute.  Virginia Code Section 46.2-868.1, like the reckless driving statute, criminalizes certain driving behavior, much of which has in recent years been referred to as road rage.  Unlike reckless driving, however, prosecution of this law may require an additional element of intent, as I will explain below.

     There are two elements that the Commonwealth must prove to obtain a conviction for aggressive driving.  First, there must be a violation of one or more enumerated traffic regulations.  These include: not driving on the right side of the highway, following too closely, not yielding the right of way, evasion of traffic control devices, improper passing, passing to the right, not allowing a vehicle to pass, speeding, and stopping on highways.  A violation of one of these statutes satisfies the first element for aggressive driving. 

     The second element that the state must prove is that the offending driver was either a) a hazard to another person, or b) committed one of the above offenses with the intent to harass, intimidate, injure or obstruct another person. 

     How is aggressive driving punished, you might ask.  Run of the mill aggressive driving that satisfies the elements listed above is punishable as a class II misdemeanor, meaning a maximum penalty of 6 months in jail, a $1000 fine, and a 6 month suspension of your driver's license.  Additionally, the court may require that you attend an aggressive driving program.  However, if the evidence at trial proves that the aggressive driving was done with the intent to injure another person, the charge becomes punishable as a class I misdemeanor, just like reckless driving, meaning a maximum penalty of 12 months in jail, a $2500 fine and 6 month license suspension.

    Now it would seem that a prosecution of this offense that alleges a defendant was a "hazard" to another person would essentially be a prosecution for reckless driving.  Recall that the general reckless driving statute criminalizes any driving that endangers the life, limb, or property of any person.  Sounds to me like the same thing.  The only difference is that reckless driving is a class I misdemeanor, while most aggressive driving charges are class II misdemeanors.  Which one do you think the police are going to charge you with?  Hint: which one carries a stiffer fine?

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. 

Increased Traffic Fines to Raise Revenue

As if we needed more evidence as to why police officers overcharge on traffic violations, take a look at this recent statement by Virginia's new governor.

"Gov. Tim Kaine said Wednesday his transportation funding plan will likely include higher fines for bad drivers, tolls and increased debt.  'We need more revenue - revenue as a combination of state revenue, local revenue options, debt, public-private ventures.  And you'll see a proposal that will, I think, combine those in a way that will put us in a good place.'"

Putting the burden of revenue building on traffic regulation merely puts more pressure on police officers to increase the volume of traffic stops and to charge motor vehicle operators with more serious charges than a situation merits.  As an example, many police officers will charge an at fault driver of a motor vehicle accident with reckless driving, even though the officer did not even witness the driver operating the vehicle.  The police know that the court will in many cases reduce the reckless driving to improper driving, which still imposes a fine and court costs on the defendant.

To read the full article, visit http://home.hamptonroads.com/stories/story.cfm?story=98298&ran=98761

Reckless Driving Double Standard

This one of my my favorite stories from 2005.  Apparently, some police officers feel that the law doesn't apply to them.  Can you imagine what would have happened if an ordinary citizen had been injured by one of these foolish men in blue?  It's too bad we can not have our employer get us off the hook for a criminal or traffic violation by talking to the police that way.

http://www.thenewspaper.com/news/06/681.asp

Is reckless driving a crime in Virginia?

     In the Commonwealth of Virginia, the answer is YES.  Reckless driving is punishable as a Class 1 misdemeanor, which could mean up to 12 months in jail and/or a $2500 fine.  While this punishment would only be imposed in the most extreme of circumstances, if convicted you may also face a suspension of your driver's license, 6 demerit points on your driving record, increased insurance premiums at renewal time, as well as a conviction on your criminal record.

     What constitutes reckless driving in Virginia?  The Virginia Code sets forth a number of offenses that are chargeable as reckless.  Traveling more than 20 mph over the speed limit, traveling at more than 80 mph, racing, or driving so as to endanger life, limb or property are all reasons the police could charge you with reckless driving.  Additionally, many officers will charge you with reckless driving if you are involved in an accident and thought to be at fault.  However, the Virginia Supreme Court has held that the mere fact an accident occurs is not proof beyond a reasonable doubt that one is guilty of reckless driving.  If you are in an accident and charged with reckless driving, seek legal counsel immediately to fight this charge.

     Having a conviction for reckless driving could potentially deprive you of obtaining a job, a security clearance, or even a loan or mortgage.  For this reason alone, it is important that you obtain experienced legal counsel to assist you with a charge of reckless driving.  The Law Office of Charles Homiller regularly represents clients charged with reckless driving in the Central Virginia and Tidewater areas.  If you are charged with reckless driving, do not take it lightly.  Call the Law Office of Charles Homiller at (804)523-2999 to discuss the facts of your case and options that may be available to preserve your name and livelihood.

Losing the Right to Remain Silent

It has long been held that an individual is under no obligation to speak to a police officer if he approaches you on the street.  However, a bill currently in front of the Virginia General Assembly appears to be trying to limit that situation.  House Bill No. 25, now being discussed by the Committee for Courts of Justice, would amend the Code of Virginia as follows:

§ 19.2-82.1. Temporary detention by law-enforcement officer of person suspected of criminal behavior; penalty.

A law-enforcement officer may detain any person whom the officer encounters under circumstances that reasonably indicate that the person has committed, is committing, or is about to commit a crime. A law-enforcement officer may detain the person pursuant to this section only to ascertain his identity and to inquire about the suspicious circumstances surrounding his presence. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of the officer. Any person who fails to identify himself or who provides a false identity is in violation of this section and is guilty of obstruction of justice under subsection A of § 18.2-460.

In other words, a person could be convicted of a Class 1 misdemeanor, and sentenced to 12 months in jail and a $2500 fine by simply refusing to give his name to the police.  "Reasonable suspicion," as this amendment contemplates, is a very low standard for the police to meet in deciding whether to question someone.  Yet, what is humorous about this proposed amendment is that it authorizes the police to ask you your name and question your presence, but only criminalizes your failure to provide a name.  Does that mean if I am walking down the street in Shockoe Bottom at 2 am, minding my own business, when the bars are letting out, and a police officer stops me and asks my name, I must give it to him or else face arrest?  According to this proposed amendment it would, if the officer has a reasonable belief that I have been, am currently, or am about to be involved in criminal activity.  If this bill succeeds in becoming law, it will interesting to see the interplay it has with the police's ability to stop and frisk individuals they encounter walking down the street.

This proposal demonstrates yet another attempt by the government to chip away at our ability to preserve our individual privacy rights and freedom from intrusion into our personal lives.

Welcome to the Battle

Welcome!  This new weblog, hosted by the Law Office of Charles Homiller, is dedicated to the discussion of criminal and traffic law issues affecting not only those charged with such offenses, but each and every citizen of the United States.  Every day, people walk through their lives without realizing the danger that exists to some of their most prized constitutional and civil rights - the right to privacy, the right to counsel, and the right against self-incrimination, among others.  Police and prosecutors across the country are consistently chipping away at these rights that were guaranteed to us by the authors of the Constitution.  The Law Office of Charles Homiller is committed to ensuring that its clients, when charged with a criminal or traffic offense, are protected against these heinous intrusions into our civil liberties.

The Law Office of Charles Homiller, founded in 2004, and located in the near West End of Richmond, Virginia, represents individuals and small businesses throughout Central Virginia.  THe firm's founder, Charles J. Homiller, Jr., regularly represents both adults and juveniles charged with criminal and traffic offenses in the city of Richmond, as well as the counties of Henrico, Hanover, Chesterfield, New Kent and Goochland. 

The Law Office of Charles Homiller represents clients charged with serious traffic offenses including speeding, reckless driving, DUI/DWI/drunk driving , driving on a suspended or revoked license, habitual offenders, and hit and run.  We also represent individuals charged with both misdemeanor and felony offenses, including larceny, robbery, assault and battery, drug possession, manufacture and distribution, weapons offenses, fraud and sex crimes.