Virginia Driving & Traffic Laws

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2009-04-29T17:58:00.000-07:00

UNITED STATES OF AMERICA, v. KENNY KOONGE,

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Kenny Koonge appeals from an order of the district court affirming his conviction after a bench trial before a United States Magistrate Judge. Koonge was convicted of 1) driving under the influence of alcohol ("DUI") in violation of 36 C.F.R. § 4.23(a)(1); 2) reckless driving in violation of 36 C.F.R. § 4.2, incorporating [*2] Va. Code § 46.2-852; and 3) crossing the median in violation of 36 C.F.R. § 4.10(a). The judge imposed a sentence of 18 months' probation with special conditions, fines of $ 950 and a special assessment of $ 30. We affirm.

I.

On November 21, 1998, at approximately 8:00 a.m., the vehicle that Koonge was driving crossed the median of the George Washington Parkway in northern Virginia and struck an oncoming vehicle. Because the Parkway is within the special maritime and territorial jurisdiction of the federal government, the United States Park Police responded to the accident. Koonge was issued citations for the following infractions: 1) DUI in violation of 36 C.F.R. § 4.23(a)(1); 2) reckless driving in violation of 36 C.F.R. § 4.2, incorporating Va. Code § 46.2-852; 3) operating an uninsured vehicle in violation of 36 C.F.R. § 4.2, incorporating Va. Code § 46.2-707; 4) driving over the median in violation of 36 C.F.R. § 4.10(a); and 5) operating a motor vehicle on a suspended license in violation of 36 C.F.R. § 4.2, incorporating Va. Code § 46.2-301.

Koonge appeared before a federal magistrate judge on February 16, 1999 and pled not guilty to all of the charges. The charges [*3] for driving an uninsured vehicle and for driving on a suspended license were subsequently dropped. Koonge also moved for dismissal of either the reckless driving charge or the DUI charge, pursuant to a Virginia statute that provides as follows:
Whenever any person is charged with a violation of § 18.2-51.4 or § 18.2-266 [driving under the influence of alcohol or drugs] or any similar ordinances of any county, city, or town and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.
Va. Code § 19.2-294.1 (LEXIS 1999). Koonge claimed that this provision of the Virginia Code was incorporated into the reckless driving charge, pursuant to 36 C.F.R. § 4.2, which provides in relevant part that
unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a [national] park area are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.
36 C.F.R. § 4.2(a). The court denied the motion, finding that Va. Code § 19.2-294.1 is procedural in nature and inapplicable [*4] to federal courts. The case then proceeded to trial.

The evidence at trial showed that Koonge's vehicle had crossed the median and struck another vehicle. The driver of the other vehicle, Dr. Thareparambil Jacob Joseph, testified that following the accident, he approached Koonge and smelled alcohol on his person. The Park Police at the scene administered field sobriety tests, which Koonge failed. Breathalyzer tests were also administered approximately 2 hours after the accident. Koonge registered .063 and .058, both of which are within the "under the influence" range and below the level of intoxication. *

FOOTNOTES

* Intoxication is a reading of .10 or higher. See 36 C.F.R. § 4.23(a)(2).

At trial, Koonge testified that he had consumed only one alcoholic beverage during the time period from 11:00 p.m. until the time the accident occurred the next morning. He further testified that he entered the median after simply losing control of his vehicle. (In his statement at the scene, Koonge told the Park Police that he [*5] had swerved into the median when he was cut off by another vehicle.) The Magistrate Judge rejected Koonge's testimony and found him guilty of all charges.

The defendant then reasserted his contention that the dual convictions for reckless driving and DUI were improper, in light of Va. Code § 19.2-294.1. The court rejected that argument, finding no prohibition against conviction on both counts in federal court. Koonge was sentenced to 18 months' probation with special conditions, including the completion of an alcohol education program and restricted driving privileges, and to fines of $ 950 and a $ 30 special assessment.

On April 23, 1999, the district court affirmed the decision of the Magistrate Judge, over Koonge's objections. The court found 1) that the evidence was sufficient to sustain the conviction, and 2) that Va. Code § 19.2-294.1 was a procedural rule and inapplicable in federal court. This appeal followed.

II.

A.

HN1We review sufficiency of the evidence to sustain a guilty charge by asking whether, when viewed in the light most favorable to the government, the evidence at trial provided a sufficient basis for having found the defendant guilty beyond a reasonable doubt. [*6] See United States v. Williams, 405 F.2d 14, 17 (1968) (bench trial); United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (trial by jury). See also Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942).

Here, Koonge contends that the evidence was insufficient to sustain either the DUI or the reckless driving charge. We disagree. Several individuals testified that Koonge smelled of alcohol at the scene and appeared disoriented. Additionally, Koonge's own testimony was inconsistent, and he admitted he crossed the median. Thus, there was sufficient evidence from which a reasonable trier of fact could have determined that Koonge was driving under the influence of alcohol on the George Washington Parkway and that his failure to control his vehicle amounted to reckless driving. As there was independent evidence to support these conclusions, we cannot fault the magistrate judge for choosing to discredit the testimony of Koonge. HN2The factfinder's credibility determinations are not a subject of appellate [*7] review. See United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

B.

HN3We review de novo the district court's legal conclusions. See United States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000). Koonge contends that the trial court erred in refusing to dismiss the reckless driving charge, as Va. Code § 19.2-294.1 instructs Virginia courts to do when a defendant is also charged with DUI. Koonge argues that, contrary to the trial court's finding, this provision is substantive in nature and therefore is assimilated into the federal law that governs his conviction. See United States v. King, 824 F.2d 313, 315 (4th Cir. 1987) (stating that the Assimilative Crimes Act of 1942, 18 U.S.C. § 13, (the "ACA") assimilates the entire substantive criminal law of the state); Kay v. United States, 255 F.2d 476, 478 (4th Cir. 1958) (holding that the ACA assimilates entire substantive law but does not generally adopt state procedural rules). We reject the contention, however, that at issue here is whether the Virginia state law prohibition on dual convictions for DUI and reckless driving is a substantive [*8] or a procedural rule.

We find persuasive the government's position that the ACA is irrelevant in this case. We find Koonge's reliance on Virginia law to be inapposite, since he was convicted under federal regulations. See United States v. Eubanks, 435 F.2d 1261, 1262 (4th Cir. 1971) (per curiam). Because Koonge was charged pursuant to the Secretary of the Interior's regulations governing vehicles and traffic safety in parks, forests, and public property under the purview of the Department of the Interior, the ACA simply was not invoked in charging Koonge with reckless driving. Specifically, Koonge's DUI charge arose under federal law, i.e., 36 C.F.R. § 4.23(a)(1), the federal DUI offense. Koonge's reckless driving offense, charged pursuant to 36 C.F.R. § 4.2, is likewise a federal offense, although it relies on the reckless driving provision of the Va. Code for its elements. Even if we were to find that this reckless driving provision brought along with it the prohibition on dual convictions for DUI and reckless driving under Virginia law, that finding would not alter the outcome in this case. Here, the DUI conviction is for a purely federal offense, and therefore [*9] the prohibition on dual convictions under Virginia state law is not triggered.
If you have been charged with a Federal DUI in Virginia, contact the Federal DUI attorneys of the SRIS Law Group for help.

DUI Richmond Virginia Henrico BAC .10 Laws Attorneys Code

2009-04-29T17:47:00.000-07:00

Commonwealth of Virginia v. Richard Bernard Wright, Jr.

CIRCUIT COURT OF THE CITY OF RICHMOND, VIRGINIA

On April 29, 1995, Richard Wright, Jr., was arrested for driving under the influence of alcohol in violation of Virginia Code § 18.2-266 ( "DUI"). Following the defendant's arrest and upon a determination that his blood alcohol content was greater than .08 grams per 210 liters of breath, Wright's operator's license was suspended for seven days pursuant to Virginia Code § 46.2-391.2 (Administrative License Suspension, "ALS"). Wright moves the court to dismiss the warrant charging DUI on the [**2] grounds that he has been twice placed in jeopardy in violation of the Fifth Amendment to the United States Constitution, namely, the "Double Jeopardy Clause." The Commonwealth asserts that both the ALS action and the DUI prosecution are lawful and do not place the defendant twice in jeopardy. The court held an evidentiary hearing on July 14, 1995, and took the matter under advisement. The Court has considered the evidence presented, the memoranda of counsel, and many opinions of other trial courts and appellate courts in Virginia and elsewhere.

The Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for [*495] the same offense.'' United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). In order to resolve the questions presented in this case the court must ask the following questions:

1. Does the ALS action result in punishment?

2. Do the ALS action and the DUI prosecution constitute the same proceedings or are they separate proceedings?

3. Do the ALS action and the DUI prosecution provide punishment for the same offense?

Does the ALS Action [**3] Result in Punishment?

Cases decided prior to Halper are of limited utility in the analysis of whether the ALS action results in punishment. No longer does the nomenclature of "civil," "criminal," or "administrative" have dispositive affect upon the underlying issue of whether a sanction is punitive in nature. Furthermore the distinction between a "right" and a "privilege," is no longer helpful in resolving whether a sanction is punitive in nature.

In Halper the defendant was sentenced to two years in prison and fined $ 5,000 for criminal violations of the False Claims Act. Thereafter, the Government filed a civil false claims action against the defendant. The Court stated that the amount of the civil penalty was "entirely unrelated" to the a ctual damages suffered and the expenses incurred by the Government. The Court identified the issue before it as follows:

whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes "punishment" for the purpose of double jeopardy analysis.

Halper, 490 U.S. at 443. Further, the Court stated:

the labels "criminal" and "civil" are not of paramount importance. It is commonly understood that civil proceedings [**4] may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties . . . . HN2the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment . . . .

[*496] We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. [Citations omitted.] Furthermore, "retribution and deterrence are not legitimate nonpunitive governmental objectives." [Citations omitted.] From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. [Citations omitted.]

Halper, 490 U.S. at 448.

If there were any doubt following Halper concerning the definition of "punishment," the Court sought to emphasize [**5] the analysis in Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). The case involved a challenge to an in rem forfeiture after a conviction of drug offenses. The challenge was based upon the Eighth Amendment prohibition against excessive fines. The Court affirmed the reasoning of Halper stating:

Fundamentally, even assuming that [the forfeiture provisions] serve some remedial purpose, the Government's argument must fail. "A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Halper, 490 U.S. at 448, 109 S. Ct. at 1902 [emphasis added].

Austin, 113 S. Ct. at 2812. It is the Court's "emphasis added" which is most significant.

Finally, the Court addressed the issue once ag ain in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). The Court stated the significance of the case as follows:

This case presents the question whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for the same conduct may violate the constitutional prohibition against [**6] successive punishments for the same offense.

Kurth Ranch, 114 S. Ct. at 1941.

Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or indeed, if it had assessed the tax in the same proceeding that resulted in his conviction.

[*497] Kurth Ranch, 114 S. Ct. at 1945.

This drug tax is not the kind of remedial sanction that may follow the first punishment of a criminal offense. Instead, it is a second punishment within the contemplation of a constitutional protection that has "deep roots in our history and jurisprudence," Halper, 490 U.S. at 440, 109 S. Ct. at 1897, and therefore must be imposed during the first prosecution or not at all. The proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time "for the same offence."

Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937 at 1948, 128 L. Ed. 2d 767.

According to the United States Supreme Court in the cases cited above, unless the purpose can be fairly stated to be solely remedial, then the significant deprivation of an operator's permit (a protected property [**7] interest) in the ALS action is "punishment" as the Court has "come to understand the term."

Legislative history as well as statutory construction aid in resolving the inquiry. Senate Joint Resolution 172 authorized the study of administrative license suspension for defendants charged with DUI. Senate Document No. 8 is entitled "Administrative Revocation of Driver's Licenses," and represents the work of The Department of Motor Vehicles, VASAP, and the Transportation Safety Board in fulfilling its responsibilities pursuant to the Joint Resolution. The report favored ALS and offered as a basis for the statutory scheme the following rationale:

Deterrence: Many of those testifying or submitting written comments believe administrative license revocation serves not only as a general deterrent to potential drunk/drugged drivers, but also as a specific deterrent to those previously convicted of DUI. However, many felt that in order for this process to be effective, the action must occur immediately and result in punishment severe enough to discourage drivers from ever driving intoxicated or under the influence of drugs in the first place. [Emphasis supplied.]

Courts should examine carefully [**8] that which is offered as legislative history. Often committee reports and staff documents reflect the views of persons other than the legislators who voted on the measure. However, in [*498] this instance the near unanimity of support for the stated purpose of "deterrence" and "punishment" convince this Court that the legislature did not act for "solely remedial purposes."

Additionally, HN3the clear meaning and effect of §§ 46.2-391.2 and 46.2-391.4 demonstrate that remedial concerns cannot be the sole purpose of the legislature in enacting the ALS provisions. In the ALS action the Clerk of the General District Court shall return the defendant's license at the end of the seven day period unless the probable cause determination is appealed and overruled during the same period. There is no requirement for alcohol evaluation or treatment during the seven day period and no mechanism to determine if the defendant poses a threat to the health and safety of the community. If the defendant was a threat to the health and safety of the community at the outset of the suspension, there is no reason advanced by the Commonwealth for a determination that he is no longer a threat at day seven or any other [**9] day.

Pursuant to Halper, Austin & Kurth Ranch and consistent with the stated legislative purpose and the clear effect of the ALS action, the Court determines that the suspension pursuant to § 46.2-391.2 constitutes punishment for the purposes of double jeopardy analysis.

Do the ALS Action and the DUI Prosecution Constitute the Same Proceedings or Are They Separate Proceedings?

Having determined that the ALS proceeding results in punishment, the court must determine if the effort to prosecute the defendant on the DUI charge is a "separate proceeding" from the ALS action. The Double Jeopardy Clause is not implicated if multiple punishments are rendered in the "same proceedings."

It is clear that HN4both proceedings must be judicial in nature in order to invoke double jeopardy analysis. See Wild v. Commonwealth, 18 Va. App. 716, 446 S.E.2d 626 (1993). HN5Code § 46.2-391.2 provides in part as follows:

If a breath test is taken pursuant to 18.2-268.2 or any similar ordinance of any county, city or town and the results show a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath, or the person refuses to submit to the breath test in violation [**10] of 18.2-268.3 or any similar local ordinance, and upon issuance of a warrant by the magistrate for a violation of 18.2-266 or 18.2-268.3, [*499] or any similar local ordinance, the person's license shall be suspended immediately for seven days . . . .

The magistrate is a judicial officer for this purpose and his decision is pursuant to a judicial proceeding. See Article VI, § 8, Virginia Constitution; Va. Code § 19.2-48.1; Penick v. Ratcliffe, 149 Va. 618, 140 S.E. 664 (1927).

In the case of United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), the court dealt with a criminal prosecution and a civil forfeiture action and stated:

We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different factfinders, presided over by different district judges, and resolved by separate judgments, constitute the same "proceeding." In ordinary legal parlance, such actions are often characterized as "parallel proceedings," but not as the "same proceeding." A forfeiture case and a criminal prosecution would constitute the same proceeding if they were brought in the same indictment and tried at the same time. The government [**11] could have sought criminal forfeiture in this case pursuant to [a federal criminal forfeiture statute]. If it had done so and included the forfeiture count in the same indictment as the other criminal counts and then proceeded to trial against the defendants on all counts, the forfeiture case and the criminal case would have constituted the "same proceeding." However, the government chose to proceed against the claimants on two separate fronts -- in two separate, parallel proceedings . . . . We are not willing to whitewash the double jeopardy violation in this case by affording constitutional significance to the label of "single, coordinated prosecution."

$ 405,089.23 U.S. Currency, 33 F.3d at 1216-17.

In the recently decided case of United States v. Ursery, 59 F.3d 568, 1995 WL 411189, (6th Cir. 1995), the government sought civil forfeiture of the home owned by the defendant and his wife because of use of the property to grow marijuana. The matter was settled with the government by a civil judgment for $ 13,250.00 which was paid by defendant and his wife. Shortly thereafter the government indicted the defendant on criminal charges based upon the same conduct, namely, [**12] manufacture of marijuana. [*500]

The court had little trouble finding that the civil settlement of the forfeiture action was "punishment" for double jeopardy purposes. Additionally, the court had little trouble finding that the two actions were for the "same offense" pursuant to United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), and Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The court turned to the next issue, namely, were the two actions part of a single coordinated proceeding. As the court noted:

HN6The Supreme Court has made clear that the government may seek and obtain both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding. Halper, 490 U.S. at 450.

Indicating that the court must examine the facts and avoid simple labels, the court found that:

The civil forfeiture proceeding and the criminal proceeding were instituted four months apart, presided over by different district judges, and resolved by separate judgments. The district court found these two proceedings to be part of a "single, coordinated proceeding" without providing any factual support for this determination. As a matter of principle, applying [**13] a label to something does not make it so. Without a reasonable analysis of the indicia of coordination, we do not believe these two proceedings logically become part of a single, coordinated procedure merely by labeling them as such. Similar to the Ninth Circuit, we find that applying the label of "single, coordinated prosecution" to the facts of this case simply goes too far. The civil forfeiture proceeding and the criminal prosecution were two separate proceedings for purposes of double jeopardy analysis.

The Virginia Court of Appeals considered a similar issue in the case of Small v. Commonwealth, 12 Va. App. 314, 402 S.E.2d 927 (1991). Therein the Commonwealth initiated simultaneously civil and criminal contempt proceedings against the defendant for violation of a prior decree of court. Criminal proceedings were held after civil proceedings because of problems related to proper service upon the defendant in the criminal case. The court heard the civil contempt charges and imposed a $ 3,000 fine upon the defendant in addition to attorney's fees to the Commonwealth and restitution to customers.

[*501] The defendant sought dismissal of the criminal contempt proceedings on the grounds that it violated [**14] the bar against double jeopardy. The majority said:

While it is true that both criminal and civil sanctions may be imposed as a result of the same conduct, the double jeopardy clause bars the imposition of two separate penalties if both are punitive. The labels "criminal" and "civil" are not of great importance in determining whether a later punishment is barred by the double jeopardy clause. Furthermore, it is not the "fact of punishment but rather its character and purpose" that distinguishes civil and criminal contempt. The punishment for civil contempt is remedial and for the benefit of the injured party. The punishment for criminal contempt, however, is punitive, "to vindicate the authority of the court." [citations omitted] . . . .

The double jeopardy clause becomes operative if one of the sanctions "may not fairly be characterized as remedial" and both sanctions may be characterized only as either "a deterrent or retribution." A sanction is not "remedial" if it "bears no rational relation to the goal of compensating" the injured party, which may include the government, for its loss. [Citations omitted.]

Small, 12 Va. App. at 317.

The Court determined that there was [**15] no remedial basis for the court's award of the penalties; consequently, the penalties must be determined to be punitive in nature.

In order for the court to reach its conclusion, it must have determined that the proceedings were "separate." This conclusion does not specifically appear in the majority opinion; however, it is confirmed in the dissent when the author notes: "Assuming, however, that the present case must be viewed as involving two separate proceedings . . . ." Small, 12 Va. App. at 321.

A comparison of the ALS action and the DUI prosecution reveals the following:

a. ALS is civil in nature, the DUI prosecution is criminal and different case numbers are assigned to each matter;

b. The findings in the ALS action cannot be used in the DUI prosecution;

[*502] c. Different judicial officers may be involved. The ALS decision is "automatic" upon determination that the defendant's breath test pursuant to § 18.2-268.2 or any similar ordinance shows "a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath and a warrant issues from the magistrate charging violation of § 18.2-266 or a similar ordinance. (The suspension [**16] can also occur upon a finding that the defendant refused to submit to a breath test and upon issuance of a warrant charging a violation of § 18.2-286.3.) The appeal of the ALS action goes from the magistrate to the General District Court where the arrest was made. The DUI prosecution is docketed in the venue where the offense occurred which may be different than where the arrest occurred. For example if the arresting officer is in hot pursuit the arrest for the offense of DUI in the City of Richmond could take place in an adjoining county such as Henrico County. In that event, the DUI prosecution would take place in the venue where the offense occurred, namely, the City of Richmond; whereas the ALS action would take place where the arrest occurred, namely, Henrico County. In the case of a juvenile, the DUI prosecution proceeds in the Juvenile and Domestic Relations Court and the ALS action proceeds in the General District Court;

d. The sanction for ALS has been completed in all but the rarest of cases before the DUI prosecution is concluded and the cases are resolved in separate orders;

e. Code § 18.2-271 provides that "this suspension period shall be in addition to the suspension [**17] period provided under § 46.2-391.2;"

f. The burden of proof is on the accused in the ALS action and must be sustained by a "preponderance of the evidence,'' while the burden of proof is on the Commonwealth in the DUI prosecution and must be sustained by proof "beyond a reasonable doubt."

Although some of the distinctions listed above would not, by themselves, serve as the basis for the conclusion that separate proceedings are involved in the ALS/DUI scheme, taken as a whole the Court finds that it cannot conclude that these statutes employ a "single, coordinated prosecution."

Do the ALS Action and the DUI Prosecution Provide Punishment for the Same Offense?

HN7The United States Supreme Court in Dixon stated that "in both the multiple punishment and multiple prosecution contexts, this court has concluded tha t where two offenses for which the defendant is punished cannot [*503] survive the "same elements' test the Double Jeopardy Bar applies." The same elements test comes from the Court's decision in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), and requires examination of the two "offenses." If each offense has an element that the other does not, then double jeopardy does not [**18] apply. If only one of the offenses contains a new element and all remaining elements are the same, then one offense is a lesser included offense of the other and double jeopardy does apply. Obviously, if the offenses have identical elements the double jeopardy bar applies.

In consideration of whether the elements of the ALS action and the DUI prosecution are identical it is instructive to address whether Code § 18.2-266 provides separate offenses in each of its subsections or whether the subsections are simply methods of proving the offense of DUI.

The unpublished opinion of the Court of Appeals in Doss v. Commonwealth, 1995 Va. App. LEXIS 425, Record No. 2003-93-3 (Va. App. May 9, 1995), dealt with the issue of double jeopardy in two prosecutions of the same defendant, one for DUI and the other for involuntary manslaughter. In the course of deciding the issue the Court noted that:

we cannot determine on the record before us that the defendant had been convicted previously of violating subdivision (ii), (iii), or (iv) of Code § 18.2-266, rather than subdivision (i).

Unfortunately, the Court in Doss made no mention of the prior decision of the Court of Appeals in Graham v. Commonwealth, 1993 Va. App. LEXIS 198, Record No. 2292-91-3 [**19] (Va. App. June 22, 1993). Graham is also unreported, but is widely cited and annotated in the Code for the following proposition:

Appellant further argues that Code § 18.2-266 defines several different offenses and the trial court erroneously denied his motion to require the Commonwealth to elect the subsection on which it intended to rely. We disagree. Code § 18.2-266 defines a single offense, commonly referred to as DUI, and the subsections merely set forth the means by which the offense of driving under the influence may be proved.

In the case of Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989), the Court of Appeals examined the subcategories of Code § 18.2-266. A careful review of the Court's decision reveals that subsection (i) prohibits driving while the driver has a blood alcohol concentration above the legal limit, while subsection (ii) prohibits driving while "under the influence of [*504] alcohol." The Court's decision states that these two circumstances are separate "offenses" and observes:

The legislative purpose of these amendments was to provide a statutory scheme within the provisions of Code § 18.2-266 and related code sections to prohibit drinking and driving under either [**20] of two separate and distinct circumstances. Code § 18.2-266(ii) prohibits driving "while under the influence of alcohol." In order to facilitate that determination, when chemical tests are performed, Code § 18.2-269 continues to provide for certain presumptions for and against the conclusion that a driver was "under the influence of alcohol" at the time of the alleged offense, that is, when he was driving.

In contrast, Code § 18.2-266(i) prohibits driving while the driver has a blood alcohol concentration of .10 percent or more as measured by a chemical test administered pursuant to Code § 18.2-268. The presumptions contained in Code § 18.2-269 are not applicable to this offense as a result of the 1986 amendment to the code section. Thus, the inquiry under Code § 18.2-266(i) is not whether a driver was in fact "under the influence of alcohol" to a degree that his ability to drive safely was affected; rather, the issue is whether at the time he was driving his blood alcohol concentration was at least .10 percent as measured by a subsequently administered chemical test. [Emphasis in the original.]

Davis, 8 Va. App. at 297-298.

That the Court acknowledged that separate offenses [**21] could be possible under the subsections is revealed by the favorable citation of State v. Knoll, 110 Idaho 678, 718 P.2d 589 (Idaho App. 1986), as follows:

it has been demonstrated empirically, and it is now widely accepted, that a motorist's ability to drive safely is adversely affected by a blood-alcohol content of .10% even though some individuals may exhibit few outwardly visible symptoms of intoxication at that level . . . . Consequently, many states have legislated directly against driving with a blood-alcohol content of .10%, some defining it as a separate offense and some treating it as driving under the influence per se.

[*505] Davis, 8 Va. App. at 297 citing State v. Knoll, 718 P.2d at 591-92 (emphasis added).

The confusion created by Davis, Graham, and Doss is unfortunate, but it is not necessary to resolve this confusion to address the issue before the Court today.

The elements necessary for "proof" of the ALS action are as follows:

1. The defendant must have refused a breath test or registered a blood alcohol content of .08 or higher;

2. A warrant alleging violation of § 18.2-266 or § 18.2-268.3 must issue.

The elements necessary for "proof" of the DUI prosecution are as follows:

[**22] 1. The defendant must have been operating a motor vehicle;

2. The defendant must have "violated" one of the subsections of § 18.2-266.

It is not necessary to decide whether the separate subsections of § 18.2-266 provide a basis for separate offenses. It is sufficient to decide that:

1. If the prosecution under § 18.2-266 is based upon subsection (i) rather than (ii), (iii) or (iv), and the ALS action is based upon the blood alcohol content (per se standard), then the "same elements" exist for both the ALS and the DUI;

2. If the Commonwealth relies upon the per se standard for the ALS action and does not proceed under subsection (i) of § 18.2-266, then the elements of the "offenses" are different;

3. If the Commonwealth relies upon a refusal to take the test as the basis for the ALS action, its subsequent reliance on subsections (ii), (iii) or (iv) of § 18.2-266 clearly involve elements of the "offenses" that are different.

Although it is possible that the Commonwealth may trigger the double jeopardy bar to subsequent prosecution, until the Commonwealth offers its proof, the Court cannot make a determination.

Conclusion

Many commentators including lawyers, academics, [**23] judges, and journalists have addressed questions involving the ALS/DUI statutory scheme in Virginia. It is important to remember that this Court does not have the prerogative of addressing the wisdom of the statutes, only their constitutionality.

The Court concludes that the ALS action results in "punishment," and the proceedings are separate; however the elements of the ALS action and the DUI prosecution are identical only if the Commonwealth chooses to [*506] pursue both the ALS action and the DUI prosecution based upon the per se results of the blood test. The warrant in this case charges a violation of Code § 18.2-266. It remains to be seen which subsection the Commonwealth utilizes for the prosecution.

For the reasons stated above the Court denies the defendant's Motion to Dismiss. The m otion may be renewed if the Commonwealth proceeds with its prosecution under subsection (i) of Code § 18.2-266.
If you have been charged with a DUI in Richmond, VA or DUI in Henrico VA, contact the SRIS Law Group Virginia DUI attorneys for help.

Virginia DUI Lawyers Driving Under Influence VA Court

2009-04-29T17:34:00.000-07:00

KENNETH WAYNE TURNER v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
Defendant appealed his conviction by the Circuit Court of the City of Charlottesville (Virginia) of driving under the influence (DUI), second or subsequent offense, in violation of Va. Code Ann. § 18.2-266. Following defendant's appeal de novo to that court under Va. Code Ann. § 16.1-136, the circuit court amended to DUI second offense the warrant on which he was convicted of DUI first offense in a district court.
Defendant was arrested for DUI first offense, and prior to trial, he was again arrested and charged with DUI second offense. Prior to a trial de novo in the circuit court for the first arrest, the district court convicted defendant of the lesser-included offense of DUI first offense for the second charge. On review, the court reversed his conviction for DUI second offense based on double jeopardy. Although a circuit court had discretion under Va. Code Ann. § 16.1-137 to amend a defective warrant, there could not be a trial de novo for the same offense after an acquittal by a court having authority to try the offense. The impossibility exception to double jeopardy did not apply because the Commonwealth had been aware of defendant's prior DUI conviction and de novo appeal at the time of his prosecution on the DUI second offense charge. Defendant's trial de novo on the amended warrant charging DUI second offense could not be characterized as a subsequent prosecution for a new offense arising out of facts discovered after the conviction. Defendant was prosecuted for the same offense as originally charged and tried in the district court, of which he had been acquitted.
The court reversed the circuit court judgment, set aside the conviction for DUI second offense, and remanded for resentencing of the DUI first offense conviction.
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Virginia Reckless Driving Suspended Fairfax Court Police

2009-04-29T17:25:00.000-07:00

Commonwealth of Virginia v. Corey S. Gibson

CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA

Defendant Corey S. Gibson appeals his March 1, 1996, General District Court convictions on the charges of reckless driving, driving on a suspended operator's license, and speeding to elude. At trial in this Court, Gibson introduced evidence that on April 6, 1996, after his de novo appeals to this Court on these charges were properly noted and perfected, he was again tried in the General District Court on identical charges brought by a different police officer. Gibson claims that this Court must therefore dismiss the three charges pending before this Court based upon the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Va. Code § 19.2-294. The Court has considered the evidence presented, the memoranda submitted, and the arguments of counsel. For the reasons set forth [**2] in this letter opinion, the plea of double jeopardy is sustained as to the driving on a suspended license charge but is overruled as to the reckless driving and speeding to elude charges. The statutory argument is also overruled.

At approximately 12:40 p.m. on Thursday, February 23, 1996, Officer T. W. Harrington of the Fairfax County Police noticed a dark maroon Honda motorcycle operating at what he believed to be an unlawful speed in the Tysons Corner area of Fairfax County. As a result, Harrington activated his emergency equipment and pursued the motorcycle, which was driven by Gibson. Gibson looked back at the police cruiser and then accelerated away at a high rate of speed. The motorcycle ran at least three red lights, [*246] crossed over a median strip, and proceeded northbound in the southbound lanes of Route 123 directly outside of the Tysons Corner Shopping Center. Numerous cars were proceeding in the southbound lanes as Gibson proceeded in the opposite direction and entered Route 495 South.

Harrington pursued Gibson on 495 where Gibson accelerated to speeds in excess of 100 miles per hour. Just prior to the Route 95 interchange, Harrington was advised by radio dispatch to cease [**3] his pursuit as the Virginia State Police would be confronting Gibson. Although he ceased his high speed pursuit, Harrington saw the State Police confront and stop Gibson, and then he continued on to the scene of the apprehension. Upon questioning, Gibson advised Harrington that he had attempted to elude the officer because Gibson was driving on a suspended license.

On March 1, 1996, Gibson was tried in the Fairfax County General District Court and convicted of reckless driving, driving on a suspended license, and speeding to elude. He timely noted his appeal to each of those convictions. On April 8, 1996, Gibson again stood trial in the Fairfax County General District Court on identical charges brought by Trooper P. H. Boland of the Virginia State Police (Boland) and was convicted of each of the charges.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This protection prevents both successive prosecutions and successive punishments for the same criminal offense. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). In Blockburger v. United States, [**4] 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), the Supreme Court formulated the so-called "same elements" or "Blockburger" test to determine whether two offenses were separate or identical for double jeopardy purposes.
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
Id. at 304. The proponent of the double jeopardy claim has the burden of proving that the offenses are identical. Low v. Commonwealth, 11 Va. App. 48, 50, 396 S.E.2d 383 (1990).

The Court finds that Gibson has met his burden of proof on the driving on suspended charge. Harrington's testimony at trial was clear that Gibson [*247] was involved in one continuous act of driving from the time he first observed the motorcycle in the Tysons Corner area until Gibson was apprehended by the State Police. The same elements of (1) driving (2) after his license had been suspended were implicated in the charges brought by both Boland and Harrington. Consequently, the driving on suspended charge must be dismissed on double jeopardy grounds.

[**5] Gibson's double jeopardy argument must nonetheless fail as to the remaining two charges. Boland charged Gibson with reckless driving and speeding to elude based upon driving conduct at the interchange of Routes 495 and 95. Harrington charged him with committing the same offense in the Tysons Corner area. Gibson failed to introduce evidence of the specific driving conduct that constituted the speeding to elude Boland. The introduction of the summons evidencing the conviction noted only the location of the offense and did not establish that the driving conduct was the identical conduct which led Harrington to issue his speeding to elude charge. Nor did Gibson prove any connection between his running three red lights and proceeding the wrong way through busy traffic on Route 123 at Tysons Corner and any reckless driving observed by Boland numerous miles away. Therefore, Gibson has failed to establish that the acts of reckless driving and speeding to elude, which support the charges brought by Harrington, bore any relationship to the charges brought by Boland. Consequently, as Gibson has failed to satisfy his burden of establishing that the offenses are identical, the Court rejects his [**6] double jeopardy claim on the reckless driving and speeding to elude charges.

Gibson further argues that Va. Code § 19.2-294 precludes a conviction on any of the charges pending before this Court. That statute reads in relevant part as follows:
If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a state and a federal statute, a prosecution under the federal statute shall be a bar to a prosecution under the state statute.
Relying primarily on the panel decision in Lash v. County of Henrico, 13 Va. App. 251 (1991), Gibson argues that his conduct consisted of one distinct continuous and unaltered course of driving, and therefore, the convictions on the charges lodged by Boland constitute a bar to further [*248] convictions herein. 1 Gibson misreads the precedent interpreting Code § 19.2-294.
If you have been charged with reckless driving in Fairfax, Virginia or driving on suspended license in Fairfax, VA contact the SRIS Law Group VA reckless driving lawyers for help.

Virginia Driving Under Influence Richmond Henrico New Kent DUI Habitual Offender

2009-04-28T19:56:00.000-07:00

Commonwealth of Virginia v. Billy Charles Turner

CIRCUIT COURT OF HENRICO COUNTY, VIRGINIA

In this case, the Commonwealth has proceeded by Information to declare Mr. Turner to be an habitual offender pursuant to § 46.1-387.2 of the Code of Virginia. The Division of Motor Vehicles certified abstracts of convictions from the Circuit Court of New Kent County of August 1, 1984, for leaving the scene of an accident involving personal injury; Circuit Court of New Kent County of August 1, 1984, driving under the influence; General District Court of Caroline County of September 5, 1984, for driving while intoxicated; and General District Court of the City of Richmond of May 24, 1987, for drunk driving.

The abstracts from the Circuit Court of New Kent County of August 1, 1984, show that the charge of leaving the scene of an accident involving personal injury occurred on February 5, 1984, at 12:10 a.m., and the charge of driving under the influence also occurred on February 5, 1984, at 12:30 a.m.

In a prior action on December 23, [**2] 1985, the Commonwealth filed an Information to declare Mr. Turner an habitual offender utilizing the certified abstracts of the three 1984 convictions. When Mr. Turner appeared before this Court, the Court ruled that the two convictions from the Circuit Court of New Kent County of August 1, [*141] 1984, should be treated as one offense pursuant to Section 46.1-387.2, since they were committed within a six-hour period. Accordingly, this court dismissed the proceeding as there were insufficient convictions before the court to declare Mr. Turner an habitual offender.

The thrust of Mr. Turner's present argument is that the abstract of the conviction in the Circuit Court of New Kent County of August 1, 1984, for leaving the scene of an accident involving personal injury, is not in sufficient compliance with § 46.1-387.3 to prove that conviction. Therefore, since both convictions in the Circuit Court of New Kent County of August 1, 1984, are treated as one under § 46.1-387.2, the Commonwealth has failed to prove the whole offense of August 1, 1984, which again leaves insufficient convictions to declare Mr. Turner an habitual offender.

For several reasons, the Court finds Mr. Turner's argument [**3] to be without merit. First, the Court does not agree that the abstract of the conviction of the Circuit Court of New Kent County of August 1, 1984, for leaving the scene of an accident involving personal injury, is insufficient to prove that conviction. Mr. Turner argues that since this is a felony, the abstract should be an order from the Circuit Court rather than being on a traffic summons. Section 46.1-414 provides HN1that abstracts shall be made on forms prepared by or approved by the Department of Motor Vehicles and the Department of State Police. The abstract of the conviction of the Circuit Court of New Kent County of August 1, 1984, for leaving the scene of an accident involving personal injury contains all of the information required by § 46.1-414. Accordingly, the Court finds the abstract sufficient.

Secondly, the Court believes that Mr. Turner has a misperception of the legislative intent of § 46.1-387.2 treating multiple offenses committed within a six-hour period as one offense. In this Court's opinion, the legislature intended to lessen the impact of the Habitual Offender Law on first time offenders who might well commit several offenses listed in § 46.1-387.2 within [**4] six hours. For example, a person who is stopped for driving under the influence might also be found to have been operating the motor vehicle while his license to drive had been suspended or revoked. In such a case, the person would be two-thirds [*142] of the way toward being an habitual offender. By this act of grace, the legislature never intended that multiple offense committed within six hours be forever and for all purposes inexorably intertwined into a single offense. Therefore, the Commonwealth may choose to use either conviction of August 1, 1984, in combination with two other requisite convictions to establish that Mr. Turner is an habitual offender. To do otherwise would be to place a person like Mr. Turner in a better position than one who had committed only a single offense.

Since Mr. Turner concedes that the abstracts of convictions of the Circuit Court of New Kent County of August 1, 1984, for driving under the influence; General District Court of Caroline County of September 5, 1984, for driving while intoxicated; and General District Court of the City of Richmond of May 24, 1987, for drunk driving are correct, his argument that there are insufficient convictions to declare [**5] him an habitual offender must fail. Mr. Turner's argument must also fail since the Court finds that the abstract of conviction from the circuit Court of New Kent County of August 1, 1984, for leaving the scene of an accident involving personal injury is a competent abstract.

For the reasons previously expressed, the Court rejects Mr. Turner's assertion that the doctrine of collateral estoppel precludes the separation of the two February 5, 1984, offenses. The prior ruling of this Court in December, 1985, did no more than recognize the legislative intent that these two offenses could not be combined with the other 1984 offense to support an habitual offender declaration. See Dorn v. Commonwealth, 3 Va. App. 110, 348 S.E.2d 412 (1986).

This opinion serves as the basis for the Court's ruling on December 8, 1987, finding Mr. Turner an habitual offender.

If you have been charged with a DUI in Henrico, Virginia, DUI in Richmond, Virginia or DUI in New Kent County, Virginia contact the SRIS Law Group for help. A former police officer & former prosecutor are standing by to help you.

DUI Refusal Virginia Implied Consent Virginia Beach

2009-04-28T19:45:00.000-07:00

CITY OF VIRGINIA BEACH v. ROBERT R. RENEAU

Supreme Court of Virginia

The record shows Reneau was arrested and charged with driving under the influence on April 7, 1975. He was informed of the provisions of the implied consent law by the arresting officer and later by a magistrate. On both occasions Reneau refused to take either a blood or breath alcohol test. After his second refusal, a warrant was issued for his refusal to submit to a blood or breath alcohol test in violation of Virginia Beach Code § 22-84.2.

[*868] At trial on the driving under the influence charge, the general district court, having heard all the evidence, amended, sua sponte, the warrant to charge reckless driving and then found Reneau guilty of improper driving. Immediately thereafter the refusal charge was heard and the general district court convicted Reneau of unreasonably refusing to take a blood or breath alcohol test and revoked his license for 90 days. Reneau appealed the latter conviction to the circuit court.

The circuit court, after hearing the evidence, dismissed the case, holding that trial of the refusal charge after amendment of the driving under the influence warrant to charge reckless driving and Reneau's conviction for improper driving violated the HN2mandate of Virginia Beach Code § 22-84.2(1) [***3] that the refusal charge be tried "subsequent to the defendant's criminal trial for driving under the influence of intoxicants." We believe this was error.

The record establishes clearly not only that there was a "trial" of Reneau's driving under the influence charge but also that his refusal charge was tried subsequently, all within the meaning of § 22-84.2(1) of the Virginia Beach Code. The general district court heard "all the testimony" concerning the driving drunk offense, then amended the warrant to charge reckless driving and convicted Reneau of improper driving. Thereafter, albeit immediately, the court tried Reneau on the refusal charge.

It was immaterial to the validity of Reneau's refusal conviction in district court what disposition that court may have made of the driving under the influence charge. HN3Under the Virginia Beach Code, which parallels the state statute, 2 a driving under the influence trial and a refusal trial are independent proceedings, and "the outcome of one is of no consequence to the other." Deaner v. Commonwealth of Virginia, supra, 210 Va. at 289, 170 S.E.2d at 201. So far as is pertinent here, the law requires only that a refusal charge be tried [***4] "subsequent to the defendant's criminal trial for driving under the influence of intoxicants." That requirement was met in this case. Accordingly, the judgment of the trial court will be reversed and the case remanded for a new trial.

DUI Laws in Virginia are very complex. A skilled DUI lawyer in Virginia can help you navigate these complex Virginia DUI laws.

Virginia DUI Dismissed Drunk Driving Bedford Court

2009-04-28T19:33:00.000-07:00

Commonwealth v. Michael Shane Lacy
CIRCUIT COURT OF BEDFORD COUNTY, VIRGINIA

I am writing this letter to rule on the issue of whether or not Mr. Lacy can be convicted of driving under the influence under § 18.2-266 of the Code of Virginia after he has been convicted of two counts of aggravated involuntary manslaughter under § 18.2-36.1(B) of the Code of Virginia. On May 5, 1994 Mr. Lacy was sentenced to ten years in the state penitentiary with seven and one-half years suspended and two and one-half years to serve on each of the aggravated involuntary manslaughter charges. Additionally, he was sentenced to an additional term of six months in jail, a $500.00 fine, and loss of license for twelve months pursuant to the driving under the influence charge.

All of these charges arose out of actions of the Defendant on August 13, 1993. On that date the Defendant consumed a large quantity of alcoholic beverages after he finished his workday. He was driving from Lynchburg to [*2] Bedford in a southerly direction on Route 221. At around 9:00 o'clock p.m. he crossed the center line of Route 221 and crashed head-on into the vehicle operated by Helen Royal. As a result of this head-on collision Helen Royal and a passenger in her car, Natasha Guobadia, were killed.

The indictments for aggravated involuntary manslaughter both allege in part that "Michael Shane Lacy did unlawfully and feloniously kill and slay …(victim) by driving a motor vehicle while under the influence in violation of subdivision (ii), (iii), or (iv) of Section 18.2-266 …" The indictment for driving under the influence charges in part "Michael Shane Lacy did unlawfully drive … a motor vehicle while under the influence of alcohol …which impaired his ability to drive or operate said motor vehicle safely …"

Upon considering this issue this Court has reviewed the analysis of the Court of Appeals in Lash v. County of Henrico, 13 Va. App. 251, 264-266, 410 S.E.2d 689, 8 Va. Law Rep. 1136 (1991). In Lash Chief Judge Koontz made an exhaustive analysis of claims of double jeopardy in the Commonwealth of Virginia. In this analysis Chief Judge Koontz noted that a court must initially distinguish between constitutional [*3] double jeopardy claims as addressed by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), and claims under § 19.2-294 of the Code of Virginia. HN1 Blockburger double jeopardy claims involve a focus on whether one offense requires proof of a fact which the other offense does not require. See also Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990). HN2 A claim of double jeopardy under § 19.2-294 of the Code of Virginia involves the question of whether the same act forms the basis for two separate offenses.

First, with respect to the constitutional double jeopardy, it is clear that under the facts of the instant case there is no constitutional double jeopardy bar to a conviction of both the aggravated involuntary manslaughter offenses and the driving under the influence offense. Under Blockburger the traditional test is whether one offense requires proof of a fact which the other offense does not require be established. In the instant case aggravated involuntary manslaughter requires proof of additional facts not required to prove driving under the influence. Under aggravated [*4] involuntary manslaughter the Commonwealth must prove that the conduct was "so gross, wanton, and culpable as to show a reckless disregard for human life". Accordingly, there is no constitutional double jeopardy because additional facts must be established to prove aggravated involuntary manslaughter.

Under § 19.2-294 the focus is not on the elements of the offense but on whether violations of two statutes are based upon the same act. Wade v. Commonwealth, 9 Va. App. 359, 365, 388 S.E.2d 277, 6 Va. Law Rep. 1242 (1990).

In Padgett v. Commonwealth, 220 Va. 758, 263 S.E.2d 388 (1980), the Supreme Court of Virginia considered a case where the defendant was charged with reckless driving in Lynchburg and driving intoxicated in Bedford County arising from a high speed chase which began in Bedford County and ended in Lynchburg. The Court in that case held that the conviction of the Lynchburg offense was a bar to his subsequent conviction in Bedford because the offenses involved "the same act or acts of driving" and "contemplates a continuous interrupted course of operation of a motor vehicle …" Id. at 761.

Likewise, in Lash v. County of Henrico, 13 Va. App. 251, 266, 410 S.E.2d 689, 8 Va. Law Rep. 1136 (1991) [*5] the Court of Appeals considered charges of reckless driving and eluding a police officer arising out of one continuous chase by a police officer. In that case the Court of Appeals held that the acts of driving were a continuous conduct that gave rise to both offenses and thus the bar of § 19.2-294 arises.

The actions of Michael Shane Lacy in the instant case also involve a continuous course of conduct of operating a motor vehicle from Lynchburg into Bedford County. This act of driving under the influence on Route 221 is the act which gave rise to the aggravated involuntary manslaughter convictions and the driving under the influence conviction. Therefore the underpinning of the convictions of Michael Shane Lacy for all offenses arise out of the acts of driving under the influence. Therefore under this analysis the statutory double jeopardy bar of § 19.2-294 of the Code of Virginia is applicable in this case.

HN3 Even though the same act or acts is the underpinning for the violations of both § 18.2-36.1(B) of the Code of Virginia and § 18.2-266 of the Code of Virginia § 18.2-294 does not apply were [*6] one offense is a common law offense. In Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796 (1981), the Supreme Court of Virginia noted that § 19.2-294 of the Code of Virginia only applies where two or more statutory offenses are involved (emphasis added). In that case the Supreme Court of Virginia noted that manslaughter is a common law offense. Blythe involved voluntary manslaughter but the same rule would apply to involuntary manslaughter as a common law offense.

In this case, however, the Defendant is charged with aggravated involuntary manslaughter. This offense is created by statute and is therefore a statutory offense. If the Defendant had been charged with common law involuntary manslaughter then it would not be a statutory offense and § 19.2-294 would not apply.

Accordingly, I hold that the conviction of the Defendant of driving under the influence in violation of § 18.2-266 of the Code of Virginia places him in statutory double jeopardy in violation of the bar of § 19.2-294 of the Code of Virginia. Accordingly, the charge of driving under the influence is dismissed and the [*7] judgment of guilt and punishment is set aside.

I direct the Clerk to prepare an appropriate order dismissing the charge of driving under the influence.

J. Michael Gamble, Judge

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WEBLOGS BY SRIS

2008-12-15T02:29:00.000-08:00

Virginia Driving Laws

2008-11-16T08:19:00.000-08:00

There are many types of Virginia driving laws in Virginia. Some of the different types of driving laws in Virginia are Virginia reckless driving laws, Virginia driving under the influence laws, Virginia driving on suspended license laws & Virginia speeding tickets laws.

If you have been charged with violating a Virginia driving law such as Virginia reckless driving, Virginia DUI, VA driving on suspended or VA speeding ticket, then contact the Virginia traffic attorneys of SRIS Law Group for help.

Feel free to check out the Virginia Reckless Driving Video

VIRGINIA STATE CODE 46.2-921.1 SLOW DOWN/MOVE OVER

2008-11-08T18:12:00.001-08:00

Did you know that if you see an officer on the side of the road, you have to either slow down or move over. This is called the slow down/move over law in Virginia. Virginia state troopers are now charging people with violating Virginia State Code 46.2-921.1 regularly. Be aware that Virginia State Code 46.2-921.1 is a criminal charge in Virginia. In Virginia, a violation of 46.2-921.1 is a Virginia Class 1 misdemeanor. A Virginia Class 1 misdemeanor carries a maximum penalty of 1 year in jail and or up to a $2500 fine. If you are convicted of a class 1 misdemeanor, you may also loose your security clearance.

Do not take a slow down/move over charge in Virginia lightly. Contact a SRIS Law Group traffic attorney to defend you if you have been charged with violating Virginia State Code 46.2-921.1.

To read more about: Virginia Code 46.2-921.1 Move Over/Slow Down Law

Virginia Reckless Driving Video