Sometimes it feels like you can get pulled over for anything in Virginia. Continue reading
Do you remember the recent case of Sarafin v. Commonwealth? Do you remember that this case was the latest example of our dear courts finding someone guilty of driving while intoxicated while merely sitting in his car with the radio turned on and the key in the auxiliary position? Do you remember how I gave the defendant no chance at success given the latest appellate court decisions on the subject? Well, Mr. Sarafin appealed . . . and he almost won. But, ultimately, he lost and little has changed since we last went over this topic. Continue reading
We will keep this one short. Really short. Must the prosecutor prove that you intended to operate your motor vehicle to convict you of DUI in Virginia? Nope.
Virginia’s DUI statute was enacted to protect against “what could happen with an intoxicated individual behind the wheel, regardless of whether he intended to be there, turn on the car, or move the vehicle.” Case v. Virginia, Record No. 2188-12-4 (Va. Ct. App. 2014). Virginia’s DUI statute accordingly does not incorporate the typical mens rea requirement that the prosecutor must prove the defendant’s intent to commit the criminal act. Id. As such, it’s no defense to claim that you weren’t trying to drive.
We will keep this one short, too, because we addressed the issue of being caught drunk in your car with only the key in the ignition only one year ago. Can you be convicted of DUI in Virginia if you were only found asleep in your car parked in your private driveway with the radio turned on and the key in the auxiliary position? Yes, you can. Continue reading
We will keep this one short. Can a naval station that provides limited access to the public have “public highways” for the purposes of Va. Code § 18.2-266 (i.e., Virginia’s DUI statute) or its analogue under the Federal Code? Yes, it can. Continue reading
In U.S. v. Williams, Criminal No. 3:13MJ137 (2013), a criminal defendant was charged with possession of marijuana, among a bunch of other crimes. He moved the court to suppress all evidence of his crimes on the ground that the arresting officer lacked reasonable suspicion to stop the defendant’s vehicle in the first instance. The arresting officer claimed that he did have reasonable suspicion to believe that the defendant had committed a crime: his car touched one of the fog lines on at least five occasions. As such, the court was faced with some interest questions: (i) um, what is a fog line?, (ii) does simply touching a fog line constitute a crime?, and (iii) does simply touching a fog line at least give an officer reasonable suspicion that a crime was committed? Richmond U.S. District Magistrate Judge David J. Novak fortunately had answers to these questions. Continue reading
In Villareal v. Commonwealth, No. 0764-13-2 (2013), an off-duty police officer was hired to perform security outside of a restaurant that was part of an outdoor strip mall. He unfortunately got to witness firsthand an intoxicated woman back her car right into his parked car in the mall’s parking lot. He promptly arrested her and she was thereafter charged with driving under the influence (4th offense) and driving on a license suspended due to multiple prior convictions for driving under the influence.
The criminal defendant moved the trial court to dismiss her charge of driving on a suspended license under Va. Code § 46.2-391 on the ground that she was not seen driving on a “highway.” The trial court overruled her motion and convicted her of driving on a suspended license. She accordingly appealed. Continue reading
Can you refuse to take a field sobriety test in Virginia? Can that refusal be used against you at trial for DUI in Virginia?
Well, the good news is that you can refuse to take any field sobriety test in Virginia. See, e.g., Jones v. Commonwealth, 279 Va. 52 (2010). And, the other good news is that the court cannot use your refusal as evidence of your “consciousness of guilt.” Id. But, there’s some bad news. Continue reading
Can you be convicted of speeding on the basis of an officer’s estimation of your speed?
In Lewis v. Commonwealth of Virginia, Record No. 1195-12-1 (unpublished), an officer was running his radar gun from his moving police cruiser. He clocked a driver going 56 mph in a 35 mph zone going the opposite direction. He turned around, flashed his lights, and tracked down the driver who weaved ever so slightly within his driving lane but otherwise was not driving erratically. The driver looked drunk, smelled of alcohol, admitted to having one beer and one shot, and failed five field sobriety tests. The officer arrested him for speeding and driving under the influence of alcohol. Continue reading
An Officer arrives at the scene of an accident. He sees that one car is stuck in the median. He sees limited damage to the car. He notices that it had been raining that day. He asks the driver what happened. The driver says that he “hit a patch of water and hydroplaned into the median.” The officer asks him whether he had been drinking. The driver says that he “had a few beers.” The driver says nothing else. The officer charges the driver with the crime of reckless driving. The driver does not testify at all at trial per his privilege against self-incrimination. So is this fact pattern sufficient to find the driver guilty of reckless driving? Continue reading