The Best Offense is a Good Defense

Domestic Assault - Deferred Disposition No Guarantee

As I have previously discussed, Virginia Code Section 18.2-57.2, the so-called domestic assault statute, criminalizes the assault and battery of a family or household member.  My emphasis of "and" will become apparent later in this article.  You may recall that on a first offense family assault, the judge has the option of deferring a judgment of guilt while placing the defendant on local probation, including the completion of an anger management class.  If after two years the defendant has complied with all terms of probation, the case will be dismissed.  This outcome is only available on violations of 18.2-57.2.

Virginia Code Section 18.2-57 is the simple assault statute.  As written, it merely criminalizes the assault of another person, not the assault and battery of an individual.  What is the difference bewteen assault and battery you may ask.  A battery is defined as an illegal or offensive touching of another person.  An assault is an act that puts some in fear or apprehension of suffering a battery.  If I raise my fist in anger at you, that could be an assault, but not a battery.  If I swing and hit you, that would be both and assault and a battery.

Now to my point.  In juvenile and domestic relations court this morning, I had a female client charged with an 18.2-57.2 assault and battery against her boyfriend, who is also the father of her child.  My client was convinced that she was innocent.  I could not convince her otherwise.  According to her, her boyfriend had been picking on her all day while they sat around the house drinking.  After about 8 hours of this conduct, my client walked over to her boyfriend, swung at him, but missed.  She then walked to another room, where her boyfriend followed her.  As he came towards her with his hands out to grab her, my client popped him twice in the mouth and kicked him in the leg. 

Despite my advice, my client insisted on telling her story to the judge, as she was sure she was innocent.  After listening to her testimony, the judge asked for argument on the facts.  The only argument I could make was that the battery was justified as self-defense since the boyfriend came at her after she retired to another room.  The judge agreed there was no battery, and thus she was not guilty of a 57.2 violation.  However, the judge also determined that her initial swing and miss constituted an assault under 18.2-57, as there was no actual battery.  He then convicted her of a simple assault, as it was a lesser included offense of the original charge.

The problem with this decision is that the Virginia Code does not allow for a deferred disposition on simple assaults like it does for domestic assaults.  Consequently, my client now has a conviction on her record and a suspended sentence hanging over her head, whereas if she had not testified, she would have been placed on probation with the possiblity of having the charge dismissed in two years.

Now, this outcome was my client's own doing.  I advised her not to testify, and I advised her to take the deferred disposition, but she chose not to do so.  However, it seems peculiar to me that the legislature would allow for a deferred dispostion on a first offense domestic assault and battery, but not offer a similar alternative for the lesser included offense of simple assault.  There seems to be a fundamental disconnect in drafting these laws to allow someone who is for all intents and purposes guilty of a more serious crime the opportunity to have it dismissed, but not provide the same opportunity to someone guilty of a less serious offense.

To Tell the Truth

No, not the old television game show.....

Last week I was in general district court on a traffic day.  Though I arrived early, the officer on my reckless driving case was late getting to court.  Because he naturally did not return my phone messages, I had to ask the court to pass by the case while I confirmed his radar calibrations and spoke to the Commonwealth Attorney about the case.  When I returned to my seat in front of the bar, the court was addressing cases involving minor traffic matters --- proof of insurance, expired tags etc. 

The court calls a case, and a 30 something year old woman walks to the bench, charged with not having a current sate inspection.  Normally, the court will dismiss the case if you show proof that you have obtained an inspection, and the inspection was not late by more than 3 months at the time of the offense.  Without swearing her in, the judge asked the woman if she had obtained an inspection, to which she replied yes.  As he was preparing to ask her another question, the judge realized he had not sworn the defendant in, so help her god, which he then proceeded to do.  The judge then asked her again if she had obtained a current inspection, to which she replied -- NO! 

For some reason I just found this to be amusing.  It was as if the defendant had not even answered the question differently the first time.  I suppose it is a positive commentary on society that some people do in fact believe in the sanctity of taking an oath to tell the truth -- even in matters as small as this one was.  Perhaps what I found even more amusing was that the judge continued on without blinking, without even making mention of this lady's attempt to defraud the court.  Had I been on the bench, I know fo a fact that I would have called her on the carpet for this type of insincerity.

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.

A Primer On Domestic Assault Cases

     In my practice, I represent a large number of court-appointed criminal defendants.  A large percentage of these clients either are charged with, or have been charged in the past with assault on a family member.  Virginia Code Section 18.2-57.2 makes it a Class I misdemeanor for a person, including juveniles, to commit assault and battery against a family or household member.  Consequently, the maximum punishment for a first or second conviction of this offense includes 12 months in jail and a $2500 fine.  A third conviction within 20 years is punishable as a Class 6 felony, meaning 12 months in jail or 1 to 5 years in prison, as well as a maximum $2500 fine.

    Who is considered a family or household member?  Obviously one's spouse, children, parents and siblings are for the purposes of this statute.  Grandparents, grandchildren, stepparents, and stepchildren also are covered by this statute.  Additionally, an ex-husband or ex-wife are included within this definition even if you don't live with them.  In-laws are considered family under this law only if they live in the same house as the defendant.  If you have a child but are not married, the child's other parent is protected under this statute.  Finally, if you live together with someone or have in the past 12 months cohabited with someone, that person and any of their children living with you are considered family or household members.

     A question I receive quite often is "why can't my spouse/girlfriend/parent/etc. drop the charge?"  The answer is that once an arrest is made, the alleged victim merely becomes a witness for the Commonwealth.  The only way the charge can be dismissed is if the prosecutor decides to dismiss it.  There is a compelling reason to prosecute these types of cases, as domestic assault has been shown to be a repetitive offense, and in particular one that victims quite often will not pursue out of fear or intimidation of the alleged assaulter.  Consequently, the Commonwealth will only on rare occasions nolle pros, or dismiss, a charge without it going to trial.

     If you are a first time offender, the Virginia Code allows you the opportunity to keep your record clear of a conviction for family assault.  Virginia Code Section 18.2-57.3 permits a court to make a finding of facts sufficient to find a person guilty without entering a judgment of guilt.  The defendant is typically required to remain on probation for a period of two years and participate in a community based anger management class.  If the class is successfully completed and the defendant remains out of trouble during the probation period, the court will dismiss the case against him. 

    If you are convicted of a domestic assault under this section, not only could you receive jail time and a fine, but you will likely also be served with a protective order prohibiting contact with the victim for up to two years.  An additional, yet little known impact that a conviction for domestic assault has is that you lose your right to purchase or possess a firearm.  If you are subsequently caught trying to purchase or in possession of a firearm, you will be charged with a felony, creating even more problems for yourself.

Do I Have to Get a Virginia Driver's License?

     With the rapidly increasing immigrant population in Virginia, particularly around Richmond, Tidewater and Northern Virginia, a traffic court charge I see more and more of is "no operator's license."   What many people new to Virginia do not know is that even with a foreign (meaning out of state) license, a time limit still exists to acquire a Virginia license if you have moved to Virginia.

     Virginia Code Section 46.2-308 grants a temporary privilege to new Virginians to operate their vehicles on the state highways.  However, after 60 days of living in Virginia, you must obtain a Virginia license from the Department of Motor Vehicles.  If you do not, and are stopped by the police, you will be charged with an offense that is punishable as a Class 2 misdemeanor.  The maximum penalty for driving without an operator's license is six months in jail and a $1000 fine.  A judge will in many cases be lenient on a first offense of this kind, provided you do not have a checkered driving record.  However, subsequent charges will likely be penalized more heavily.  A primary reason for this is so that the state can ensure that drivers either a) have a motor vehicle liability policy in place, or b) are contributing to the state uninsured motorist fund.

     The bottom line is that while waiting at the DMV can be a hassle and a headache, it is a much better alternative than paying out hundreds of dollars in fines and potentially going to jail.

Next Generation Lie Detectors?

Here is an interesting article out of South Carolina concerning the use of brain scans to determine whether someone is lying.  Allegedly, they are more accurate than a traditional lie detector test, results of which are not currently admissible as evidence at trial.  Nevertheless, I would still be hesitant about the use of brain scan results for many reasons - expense, confronting witnesses and self-incrimination, to name a few.

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.