06 October 2017

Why Does Anyone in Virginia Get Charged With False Pretenses?

I'm in the middle of a conference where we are discussing insurance fraud. Generally, it's a fairly useful conference discussing a subject which can be complex and hard to prosecute. However, the entire time we've been here they've been obsessive about the primary charge being Obtaining Money by False Pretenses (Va Code 18.2-178). Personally, I think this is an error that proceeds from the fact that people get blinders on them and ignore common law when there is a written statute.

I believe that a much easier prosecution proceeds from Larceny by Trick, a common law form of larceny punished, as most grand larcenies are by Va. Code 18.2-95 (I'm assuming that if an insurance company cares enough to get the ball rolling it will be over $200). Now, when your intrepid author brought this up and another experienced attorney asked me "What about venue?" This was a good question because the situation involved three co-conspirators at least one of which may not have even been at the scene of the claimed incident and therefore had a question as to where he should be charged.

Of course, I flat-footed it. Honestly, I haven't had a defense attorney argue venue for a long time and while the rule for its venue is in the statute for False Pretenses (it can be prosecuted where "(i) any act was performed in furtherance of the offense, or (ii) the person charged with the offense resided at the time of the offense"), I blanked on the general venue statute and made an argument that wasn't the strongest in the world. Consequently, the other prosecutors decided to go with False Pretenses and it probably didn't make much of a difference in the scenario we were working with.

However, as some people have discovered over the years, I have a stubborn streak a mile wide when it comes to arguing legal issues and I'm still convinced that Larceny by Trick should always be a favored charge over False Pretenses.

Larceny by Trick has the same elements of general larceny save one: "the element of trick substitutes for the wrongful taking element required by larceny."  Reid v. Commonwealth, 65 Va. App. 745, 753 (2016). So, larceny by trick would be caption accomplished by the voluntary giving of the money or property to the defendant through any sort of falsity known by the defendant to be false. Another way of thinking about this is that the trespass upon the victim's property is not realized by the victim initially because of a falsity knowingly put forth by the defendant. The remaining elements of asportation and the intent to permanently deprive the victim of the property remain the same as well as the monetary requirement for Grand Larceny ($200).

Obtaining by False Pretense is a species of fraud and therefore has two further limitations that larceny by trick does not. First is the transfer of title. This is a fraud statute instead of a larceny and therefore "an essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant." Shropshire v. Commonwealth, 40 Va. App. 34, 39 (2003). Second is the immediate misrepresentation requirement. For this statute to apply "the false representation [must be] of a past or existing fact." Hubbard v. Commonwealth, 201 Va. 61, 66 (1959). In fact, when monetary payouts are involved the title requirement is discounted and "cases tend to turn on whether the misrepresentation was one of existing fact which makes out false pretenses or some other fraud which makes out larceny by trick."  Reid at 750.  But See Owolabi v. Commonwealth, 16 Va. App. 78 (1993)(case about credit cards as choses in action which had dicta importing the fraud requirements into larceny by trick).

Combining the requirements of the statute and case law, False Pretenses requires that (1) defendant obtained, (2) by false pretense, (2.01) under an immediate misrepresentation (3) money/property, (3.01) that may be subject to larceny, and (3.02) the title thereto.

I'm hard pressed to think up an example that could be charged under False Pretenses that couldn't be charged instead under Larceny by Trick. And why wouldn't you if you could? Under Larceny by Trick you don't have an immediate misrepresentation requirement and no issues about whether title passed. It's cleaner, simpler prosecution.

Additionally, a prosecution under larceny gives at least one collateral advantage. False Pretenses is a fraud the proof of which causes a defendant to be "deemed guilty of larceny." Thus, it doesn't support a conviction of Conspiracy to Grand Larceny under Va Code 18.2-23 and a conspiracy would have to be prosecuted under Va Code 18.2-22 and carry less potential incarceration.

Venue:  And here's where I was a true idiot. Sure, the False Pretense statute sets out its own venue requirements, but the requirements for all other crimes aren't much different. If there's a crime in Virginia and the prosecution is uncertain where exactly it occurred then the default is where the defendant lives, or if not a Virginia resident where he was caught, or if he neither lives in Virginia nor is caught here any jurisdiction where a related crime occurred. Va Code 19.2-244. Consequently, if I know the crime occurred, but I have a hard time nailing down the exact locale of the criminal activity, I just try it where the defendant lives.

Simplest answer in the world and I just flat-footed it. Venue shouldn't provide any problems in prosecuting a Larceny by Trick.

04 October 2017

Fraud for Social Services and Medicaid

If you live in an economically depressed area you have a lot of people receiving various forms of social services. Most of them need it. Some of them don't. Anyone who has done criminal work for any period of time can tell you stories of people married to (or living with) someone who is rich and claiming benefits or claiming benefits in two States or just straight out lying about whether they have a job. It's money for the taking and people will try to scam their way into it.

So what can be done? Those in charge of the system can, and do, try to police it themselves, but in the case of more extreme, repetitive, and unrepentant abusers there are criminal legal sanctions. While there are probably more than what I'm going to list below, however these are the ones I see charged most often.

63.2-502 - Perjury for to Obtain Public Assistance - Obviously, this is about lying in order to get benefits and it is one of the two ways in which cases tend to start as people lie about their circumstances to get money or get more money. It is punished a perjury and therefore has a punishment of up to ten (10) years.

63.2-513 - Failing to Report Changed Circumstances - This is the other way in which cases start. This occurs when the person getting aid fails to report that they've gotten a job or gotten married or that the three kids they're claiming to get money have been removed by Child Welfare. These can be more difficult if the case is one in which the recipient has not had his six month review (they're reviewed every six months) because the recipient always claims he didn't know/understand he was supposed to take the initiative to report. However, after that six month check in when they are specifically asked if there's been a change (and they always say no) that claim becomes very difficult to defend.  Violating this section is a deemed to be a violation of 63.2-522 and therefore is a larceny. Punishment depends on whether it is a misdemeanor amount or felony, but since this is usually done in the felony level it generally carries up to twenty (20) years.

63.2-522 - Social Services Fraud - Basically, this is the statute which specifies that getting money by defrauding the Social Services is a larceny. Punishment depends on whether it is a misdemeanor amount or felony, but since this is usually done in the felony level it generally carries up to twenty (20) years.

However, if the benefits come from Medicaid then there are different charges which must be filed:

32.1-314(1) - Perjury to get Medicaid - This is basically the same as the basic charge for lying to get benefits, but it applies only to Medicaid benefits. It carries up to twenty (20) years as punishment.

32.1-314(2) - Medicaid Benefit Fraud - Lying, concealing to get Medicaid benefits.

32.1-314(3) - Failing to Report Changed Circumstances - Not reporting things which would change the amount of funds coming in.

All the charges under this section are punished with up to twenty (20) years in prison.

22 August 2017

Slandering a Woman's Chaste and Virtuous Character

It's interesting what you find when you hunt around in the nooks and crannies of the statutory code:

§ 18.2-417. Slander and libel.

Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any female of chaste character, any words derogatory of such female's character for virtue and chastity, or imputing to such female acts not virtuous and chaste, . . . or shall use grossly insulting language to any female of good character or reputation, shall be guilty of a Class 3 misdemeanor.

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As a non-gender neutral statute, this is clearly an unconstitutional remnant from times when women were viewed as finding their value in their reputation (note that we couldn't have cared less if men were indecent and immoral). I did take out the one sentence which provided a constitutionally sound, gender neutral option, but it was basically a general fighting words option.

I have to wonder when was the last time someone was convicted under this statute.


15 July 2017

Santa, The Easter Bunny, & the FCC

A defense attorney is trying to get a trial judge to take judicial notice of something published on the FCC's website, fcc.gov, which is unmistakably a federal government website. This is how the Virginia Court of Appeals reports the conversation:
From Ragland v. Commonwealth in March 2017:

 [Trial Court]: But it isn’t a fact, [counsel], just because the Federal Government says it’s a fact.

[Defense Counsel]: Well, it is an official publication of the government.


[Trial Court]: Of the Federal Government which I barely recognize in this Courtroom.

. . . [further discussion] . . .

 [Trial Court]: I’m unpersuaded. I’m unpersuaded that FCC.gov is something that’s binding on this Court. I mean I’m not, I’m just telling you that I virtually guarantee you I could look up FCC. something or other and it could easily be a rogue site that I wouldn’t have any idea.
 The defense attorney was trying to provide evidence that the cell phone his client was caught smuggling into a jail might be a satellite phone or maybe a wireless phone or internet phone or something else.  The appellate court found all of that irrelevant anyway and blew right past the trial court's disbelief in the FCC and it's obviously governmental website while affirming the conviction.

10 April 2017

Commonwealth Attorney Super Secret Conference

So, ithnain times per yahren there's a conference in the Triangle of Doom for Virginia prosecutors. We all get together and discuss how to jump when the Bugle Boy does the plays reveille but of course we would never blow it eight-to-the-bar, in boogie rhythm.  

In the end we're all just here to make the world a better place and we're trying to figure out how to do it. If only Xur and the Ko-Dan Armada would stop attacking it would make things ever so much easier.  And we'd even be happy if the Lord of Mordor would stop ringing. 

The first day was interesting. I went to a Latin mass in Chesterfield and then off to Crab Louie's for an excellent lunch at my favorite restaurant. Period. There is none better. Wear nice clothes - not a t-shirt and jeans place. 

Then I went off to Jotunheim where the class discussed Mr. Snow Miser and Mr. Heat Miser  and the Island of Misfit Toys. Afterwards, we rested, recuperated, studied, and a few were rumored to even have showered.

The second day had longer classes for all the attorneys. We spent a good portion of the morning getting lectured on Application of Sith Lord Theory and Shooting Like a Storm Trooper before there was an award ceremony where all the attorneys from the Triangle of Doom applauded each other. Then there was one single long lecture about Duck Dodgers and the 21st and a Half Century. I then went and played disc golf at a course somewhere west of Church Hill (which has changed drastically since I left 11 years ago).

The third day was broken down into smaller courses. I went to Advanced Divotractological Transcendistic Drug Rehabilitation, Ignoring Weird Ideas Out of California 101, Invasion of the Body Snatchers as a Practical Example , and Learning to Love Defense Attorneys Without Being Intoxicated. Three of the four were very good. The fourth was weaksauce, but you expect some duds in every training.

The last day there were only morning courses. The first was rather blue tarnations soft, but the second was truly pretty darned goodlilike. On the way out of the city, I hit Crab Louie's for an excellent lunch at my favorite restaurant. Period. There is none better. Wear nice clothes - not a t-shirt and jeans place. Then I visited the office of the Honorable Dicky Cox, in Powhatan County to see how things were going and swap tall tales, before I finally took the loooooong drive back home.

So there, all you defense attorneys who complain about about our private conferences (but see no problem with yours) now know what we're all about as we White Hats try to be beacons for all that is good and great in the universe God has given us.

** THIS MESSAGE APPROVED BY THE CENSORSHIP BOARD OF THE GREMLINS OF MY BRAIN ** 

30 March 2017

Appealing a Bond in Virginia

It was pointed out to me that I didn't discuss the process for appealing bonds in Virginia. Admittedly, I've never seen one appealed above a circuit court, but there is a process and here it is as best I can discern by delving into the dark recesses of the Virginia statutes and rules of court.

Everything starts with the magistrate. A magistrate (limited judicial officer who is the first to see arrestees) can set a bond except when the case falls under the statutory presumption against bond, 19.2-120, the arrestee is an illegal alien with certain charges, 19.2-120.1, or a judge set a no bond condition on a capias (that's a bench warrant for those of you from States uncouth enough to use English in their courtrooms) 19.2-130.1.  Shortly after her appearance before the magistrate, the defendant's next hearing is in front of a judge. This usually is one of district court judges (general or juvenile and domestic), but it can be the circuit court judge; it all depends on how she was charged and what the charge is.

If the defendant appears before a district court, she can ask for a bond hearing and it must be set within 3 days; so can the prosecutor if he believes the bond inadequate 19.2-158.  That judge can set a bond or alter an existing bond (increase, decrease, change conditions). If either side is unhappy about the result of that bond hearing they can appeal to the next higher court (the Circuit Court in this case). If the district court judge sets a bond in contravention of the statutes which set a presumption against bond, 19.2-120 and 19.2-120.1, and the prosecution appeals then the district judge must stay the execution of his bond order until an expedited appeal is done or for 5 days, whichever is shorter. 19.2-124. An appeal to the circuit court generally just involves going to the district court clerk's office, filling out a little paperwork, and setting a date.

When the bond issue gets to the circuit court, either on appeal from a district court or dealing with its own case (the same 3 day window as above applies), it sets a bond which it considers appropriate. Then comes the interesting part. Both sides have the ability to appeal to the Court of Appeals and thereafter to the Virginia Supreme Court (arguably).

So, your circuit court judge, the Honorable Euripides Titus Hartfordshire the Fourth, believes that everyone has a constitutional right to a bond. He's wrong, of course, but he's a Hartfordshire of the Snob Knob Hartfordshires and you aren't. You're not going to win that argument in his court and all the defense attorneys know it. So you're constantly in front of him arguing things like "No, the Pitcairn Axe Murderer should not get a bond, Your Honor." He sets one anyway and you, poor, piteous, humble prosecutor are faced with the prospect that if the PAM can get his biker buddies to pony up enough money and find a gullible enough bondsman he can get out on a $25,000 bond and ride off into the sunset never to be seen again.

What do you do? Well under 19.2-124(A) a defense attorney is entitled to appeal the bond all the way up to the Virginia Supreme Court and 19.2-124(B) gives you the right to do anything a defense attorney can. As well 19.2-398(B) tells you that this is one of the few things a prosecutor can appeal. So, you decide to go for it. How do you do it?

What else do the statutes tell us about this? First, under 19.2-124(D) no one has to pay any fee for an appeal of bond. Second, there is a curious oversight in the 19.2-124(C). For appeals at all levels, it allows, but does not require, the judge who set the bond to stay the execution of his order as long as reasonable when there is no presumption against bond. However, there is no instruction as to what should happen for those crimes wherein there is a presumption against bond when there is an appeal to the appellate courts - there is only instruction for an appeal from a district court to the circuit court. Consequently, while there is an implication that bond orders pertaining to these types of crimes should be stayed pending an appeal, there is neither a statutory requirement nor a statutory authorization that they be stayed. At best, you may be able to get the circuit court judge to stay his order based upon his inherit ability to do so. At worst, because the statute lays out one circumstance under which the bond may be stayed and one circumstance under which it must be stayed, the statute forbids a judge from staying his bond ruling under any other circumstances (inclusio unius est exclusio alterius) and a bond on charges against the presumption which is not being appealed from a district court to the circuit cannot be stayed. Period. If anybody reading this knows someone in the General Assembly you might want to mention to them that it'd be a good idea to fix this. Third, I can't find anything else in the statutes which applies.

COURT OF APPEALS

Next, we look to the Rules of the Virginia Supreme Court - specifically 5A (Court of Appeals). Here, the appellate courts pull a switch which doesn't seem to mesh with the statutes. The General Assembly through 19.2-124 refers to "bond appeals" and in 19.2-398(B) only authorizes prosecutors to "petition for appeal" in bond matters. Rule 5A:2 changes this to a "Motion for Review of Pre-trial Bail Orders in Criminal Cases" in the Court of Appeals (the Virginia Supreme Court does not address this in 5:4, its motions rule). This is important for three reasons. First, a prosecutor who follows the Rule will be in violation of the statute. Second, the appealed order of the circuit court is not suspended as it would be upon the filing of a notice of appeal.  19.2-400Third, the prosecutor loses the waiver of speedy trial which would normally come from a defense action that causes a delay in the trial.  19.2-409.

Honestly, I don't have a lot of issues with the third problem as long as the Court of Appeals rules expeditiously. Bond really should be one of those collateral matters decided in parallel with substantive trial proceedings. The second problem is probably the worst as a practical matter. As noted earlier, without this suspension it is quite possible that the way the statutes are written a defendant charged with a crime that carries a presumption against bond will not have his bond stayed/suspended while the motion is pending and (assuming the prosecution is right) could get out before an appellate court decision and flee or harm others. The first problem is also troubling. Prosecutorial appeals are entirely a creation of the General Assembly through its statutes. If, as it will have to, the prosecution follows the procedure laid out in Rule 5A:2 it is acting outside its granted ability to appeal and the defense will have a solid argument for dismissal out of hand.

General Motion Rules: Laying all that aside for a moment, let's look at what Rule 5A:2 requires. Any party seeking review must file an original motion and three copies to the Court of Appeals' clerk. It would probably behoove the moving party to plead with specificity here because unless the Court agrees to oral argument there is none. Your motion must state (1) you told the other party that you intended to file the motion, and (2) whether opposing counsel agrees with your motion or intends to file a reply. If opposing counsel chooses to reply he has 10 days, but the Court of Appeals does not have to wait for his reply before it rules on the motion.

Rules Specific to Bond Review Motions:  The moving party must file "(1) the warrant(s) or indictment(s) in the case; (2) the order granting, denying, or setting bond; and (3) a transcript of the bond hearing or a stipulation between counsel stating the evidence introduced at the bond hearing and the ruling of the circuit court." Number three here is going to be an obvious source of difficulties. Judge Hartfordshire has, of course, let the defense call eight witnesses (mother, grandmother, girlfriend, a third uncle twice removed, &cetera) to testify what a loving, hard-working saint the Pitcairn Axe Murderer is and you called two witnesses of your own. The hearing lasted four hours. Your regular court reporter might not be able to get that to you for a week or so and there is no way you're getting a stipulation from opposing counsel. Note that this does not provide for the circuit court to resolve any difficulties between prosecutor and the defense attorney so the other side would have to be cooperative and that would be contrary to his client's interest in having a bond - arguably an ethics violation. So, there will almost invariably be a delay between the circuit court ruling and your ability to appeal.

And your prize for jumping through all these hoops? The Court of Appeals will review the circuit court judge's ruling for "abuse of discretion." If your circuit court judge has stated on the record that he is constitutionally required to set a bond you might win. Otherwise, you better have some amazingly awesome facts on your side or you've spent a lot of time navigating through the reefs just to run smack dab into the shoals.

SUPREME COURT

The Virginia Supreme Court doesn't have any specific rules that apply to bond review motions and no announced standard of review. However, since 19.2-124 says bond "appeals" can go to the Supreme Court and 5A:2 makes these appeals motions, one could assume that these would be dealt with under Rule 5:4 which has the same general motions requirements as laid out for the Court of Appeals above. Of course, with no instruction the rest is not clear, but it would be a good idea to send all the stuff that you did to the Court of Appeals to the Supreme Court as well and I assume they would apply the same standard: abuse of discretion. The only tricky part is whether the Supreme Court's review will be of the Court of Appeals or the circuit court. Thus styling of your motion might be something like: "Motion for Review of the Court of Appeals Review and the Circuit Court's Bond Ruling." And you would do well to address both issues in your motion to cover all the bases.

And that's it. Good luck to all of you out there brave enough to sail these treacherous waters. Bon Voyage.

25 March 2017

What's in a Bond (Hearing)?

The setting of a bond is one of those things prosecutors and defense attorneys skirmish over all the time. Should the Pitcairn Axe Murderer get a bond? No. Should someone charged with a first-time reckless driving misdemeanor because of speed get a bond? Almost certainly, yes.  But what about the serial shoplifter who goes to various stores and walks out with a pack of gum one day and an Enquirer the next week and Snickers bar the week after that? These are the cases all us attorneys get together and conspire to give judges migraines over.

Those of you who watch a lot of TV hear "bail" talked about all the time. In a Virginia court you'll almost never hear that word. Instead you'll always hear "bond" talked about. For the sake of clarification, here are the basic definitions. Bail means being on pretrial release. Bond is the amount of money paid to get released. As a practical matter the word "bond" has been used to mean both of these things wherever I've practiced in Virginia (your mileage may differ) so you will hear me, other Virginia attorneys, and frequent fliers saying things like "he's on bond."

CONSTITUTIONS: To begin any discussion of this sort of topic we must look to the constitutions. It does not appear that the federal constitution's requirement that "Excessive bail shall not be required" has been applied to the States, although it is probable that all States have adopted similar requirements under their constitutions. Virginia adopted the a very similar constitutional provision - only leaving out the "shall." In Article I section 9 it states "That excessive bail ought not to be required." Both of these are lifted from the English Bill of Rights of 1689 which stated "that excessive bail ought not to be required." Note that this was not intended to declare a universal right to bail; it was meant to close loopholes used to keep those entitled to bail from being able to exercise that right. There is not and never has been a universal right to bail.

Beyond all that, Virginia's constitution demands more balance than the federal constitution. Article I section 8-A states that victims have "The right to protection from further harm or reprisal through the imposition of appropriate bail and conditions of release.

Once you get past the generalities and purpose of the constitutional provisions there must be a manner in which they are applied. There's a two part test in Virginia. First, a judge must decide if the defendant should be on bond. Second, if a judge decides that bond is appropriate he must decide what conditions of pretrail release are appropriate.

SHOULD THERE BE A BOND?:  Under 19.2-120, a person is entitled to bond unless (1) the judge finds that there is probable cause: (a) the defendant is unlikely to appear, or (b) the defendant is likely to hurt himself or others, or (2) the defendant is charged with any of a number of offenses listed in the statute (in the main violent and sexual charges, being already on bond for a felony charge, as well as the second time dealing a schedule I/II drug). In the second case a defendant can still get a bond, but he must overcome a presumption against bond (presumably to a preponderance standard).  (2)(c) The factors which the General Assembly has laid out to use in deciding whether the presumption has been overcome are: (i) nature and circumstances of the charge, (ii) the history and characteristics of the person, and (iii) danger to the community upon release.  Also note that there are similar presumption against bond provisions for illegal aliens under 19.2-120.1.  My experience has been that while some judges hold harder to the rebuttable presumption than others, all will decide that it has been overcome at some point.

WHAT KIND OF BOND SHOULD THERE BE?:  (A)  Conditions:  If a judge does decide to let a defendant out on bail there are several conditions he can set per 19.2-123, but the only ones that really mean anything are (1) the amount of bond to be posted, and (2) the possible imposition of pretrial services. The first of these is by far the more significant as pretrial services really can't stop someone from shoplifting or going to beat up a witness or running away to Oklahoma City; the bars of the jail can.  (B) Requirement: In setting conditions the judge is required to accomplish two things: (1) Assure the defendant comes back to court, and (2) insure the defendant is on good behavior prior to trial.  19.2-121.  (C) Considerations: In setting these conditions the judge is to consider (1) nature and circumstances of the crime, (2) use of a firearm, (3) weight of the evidence, (4) ability of the defendant to pay bond, (5) character of the defendant including (a) family ties, (b) employment, and (c) if she's in school, (6) length of residence in the community, (7) criminal record, (8) any prior failures to attend court, (9) whether the defendant is likely to try to obstruct justice, and (10) other factors.  19.2-121.

All the factors in setting a bond make sense except (4) above (19.2-121(iv) in the statute).  That one is problematic. On the one hand, it is arguably a sound consideration in determining if a bond is excessive for that individual. On the other hand, there is nothing in Virginia's constitution (or the 8th Amendment) that says "excessive for that individual."  Let's assume a defendant stands charged with malicious wounding and judge first decides that there has been a rebuttal of the presumption against bond then decides based upon all the other factors that an objectively appropriate bond is $10,000 (secured by cash or property).  If the defendant protests that he can only make $5,000 bond and the judge lowers it to $5,000, isn't he violating both (1) the requirements of the statute and (2) the requirements of Art. I sec 8-A of the Virginia constitution? After all, he has set the bond which he objectively believes will assure appearance in court and good behavior prior to trial - which would include protecting the victim from further harm or reprisal as required by the Virginia constitution. Lowering that bond because of the defendant's financial situation can only lessen the the assurance of appearance, lessen the probability of good behavior pretrial, and lessen the protections guaranteed for the victim. Sure the judge can write on a piece of paper "no contact", but we all know how useful that piece of paper is at 3 a.m. when the defendant shows up at the victim's house. The same goes for pretrial services. It can do weekly check-ins and drug screens, but it isn't a lot of good during that 3 a.m. confrontation either. This part of the statute really should be excised and if it's not, it should be the  very least of the factors considered by the judge.

19 March 2017

Appeals by a Virginian Prosecutor

Okay, so you're a prosecutor in Virginia and you've always liked Judge Smith, but he just made the most amazingly boneheaded decision you've seen in years. Can you appeal and how in the heck do you do it?

Well, you can, but it's limited to certain circumstances laid out in 19.2-398. Basically, this breaks down to (1) a dismissal of charges for speedy trial violations or constitutional reasons, (2) suppression of evidence for constitutional reasons, (3) bond conditions, (4) the judge violates mandatory sentencing statutes, and (5) if the judge rules a statute unconstitutional and dismisses the charges. If you've got a case that might fit go read the statute to make sure.

So, your case fits. Judge Smith suppressed the evidence in your Felony Snipe Hunting charges because he believes there was an unconstitutional search under the 4th Amendment. What do you do now?

Well, prosecutors in Virginia have very different rules for their appeals than defendants do. So even if you spent years doing appeals as a defense attorney, or maybe because you spent years doing appeals as a defense attorney, you need to know that the timeline is much, much shorter and conduct yourself accordingly.

First off, you need to know that the luxuriously long 30 days that defense attorneys have to file notice of appeal ain't there for you. Nope, under 19.2-400 a prosecutor gets a whole 7 days to file a notice of appeal (not even seven business days). First things first, get the judge to sign an order for transcripts to be typed up. Here again the timeline is different. Unlike an order for a defense appeal, your transcripts must be delivered no more than 25 days from the trial court's suppression order (defense gets 60), although the Court of Appeals can grant up to a 45 day extension. 19.2-405. Once you've gotten the order for transcription, file your notice of appeal. Rule 5A:6 is the form used to note an appeal. HOWEVER, be aware that it is not complete if you are a prosecutor. In addition to what's in 5A:6, if you are appealing a suppression of evidence you must "certify in the notice of appeal that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding." 19.2-400. Note also that the written portion of 5A:6 wants a lot more information about both counsel than the form it gives you including whether defense counsel is hired or appointed, email addresses, Bar numbers, &cetera. Per Rule 5A:6, send the notice of appeal to the circuit court clerk, opposing counsel, and the clerk of the Court of Appeals. DO NOT FORGET to send along a fifty dollar check to the clerk of the Court of Appeals as your filing fee (because the  government paying the government always makes so much sense). Nope. Don't send any money. The fee is non-applicable per 17.1-266. At least it is according to a nice letter we just got from the Court of Appeals returning our check. Of course, on previous occasions they've taken our checks, so . . .

Then you wait until the transcript arrives. After this arrives, you must file a notice of its arrival and filing with the clerk of the circuit court (who should already have a copy) and send a copy to the defense attorney; make sure to certify that the notice has been sent to the defense attorney. 19.2-403THIS NOTICE MUST BE FILED WITHIN 3 days of receiving the transcript or 14 days of the judge's suppression order, whichever is later. 19.2-403.

From the day the notice of transcripts is filed, you have 14 days to file your petition19.2-402.  Send 4 copies to the clerk of the court of appeals and 1 copy to the defense attorney. Rule 5A:12.  Thereafter the defense attorney will have 14 days to file his brief in opposition.  19.2-402.  After that the only thing you might have too do is an oral presentation to judges of the Court of Appeals, if you demanded one in your petition. Then, the Court of Appeals decides whether to accept the petition within 30 days of the defense attorney's brief.  19.2-403. If it does, the Attorney General takes over and you just wait until someone sends you the result. 19.2-404. If you lose, you lose. The Supreme Court of Virginia doesn't exist as far as we're concerned. 19.2-408.

Okay, so that covers the timeline. Now, what should be in the petition? 

Petitions are pretty standard no matter who is filing them and they are governed by Rule 5A. DO NOT USE RULE 5. For some unknown, unfathomable, and irrational reason, the Supreme Court's petition/brief requirements always vary from the Court of Appeals' petition/brief requirements. Once in a while the worst of these variances gets fixed (Questions/Errors), but don't take the chance that a variance will get your petition kicked on a technicality.

What I put in a petition and the order I put them in (See Rule 5A:12):

1. Cover Page - Not required but makes a better presentation.

2. Table of Contents - List everything the Rules require and anything else you thought important enough to give its own header.

3. Table of Authorities - List every case (alphabetically), statute, or other authority and every place it is cited in your petition.

4. Nature of the Case & Material Proceedings Below - Briefly state (a paragraph or two) what type of case it is, what hearings took place, and the results of the hearings.

5. "Assignments of Error" - MUST be a separate section. MUST be under exactly that heading. MUST contain all errors you want to appeal. These errors must be more than a bare allegation of error; they are to describe the error without being overly verbose. MUST have a citation attached to each error where it occurred / was preserved. For this last, a defense attorney would normally cite where he objected. In most cases you probably don't need to do that as you are arguing against a defense motion and your objection is inherit in that (object to the ruling anyway to be safe).  HOWEVER, if a judge errs during sentencing of mandatory sentences note your objection. There was no defense motion here and therefore a much stronger argument that you waive your objection by not stating it to the trial court.

5. Statement of Facts - A summary of the facts of the case with citation to the record. Typically, this will be in the following format: Sentence, cite. Sentence, cite. Sentence, cite. Example: The defendants were caught snipe hunting (Tr. 23).

6. Authorities & Argument - This is where you (1) state the law as it applies to your facts, (2) the standard the Court of Appeals should use in reviewing the error, and (3) how the facts should have been dealt with in accord with that law. I like to break this up  in two sections for each error. I first lay out the law and standard under an Authorities section and then lay its proper application under an Argument section.

7. Conclusion - Brief summary of all the things you are right about and then STATE THE RELIEF you are asking for. It doesn't do much good to make the most perfect argument ever seen in the annals of Virginia's history if you don't ask anything to be done with it. After all, you could just be asking the Court of Appeals to make the judge be nicer to you. You could be asking for a writ of mandamus requiring the comp board to actually pay you a decent salary.. They don't know. They're just simple appellate judges who need these things spelled out for them. Typically, relief asked for will be an overruling of the trial judge and a return to the trial court for further proceedings.

There is no listed order for the sections of the petition, so you can exercise some discretion. Just don't be stupid about it. Remember, if the Court of Appeals rejects your perfect argument because your first section was the Conclusion and your last was your Assignments of Error you lose. You don't get to appeal to the Virginia Supreme Court and get a ruling that essentially says "Yes, it's stupid, but it's within the rules. Remand." You Lose.

8: Contact Information - Somebody's Bar number, phone number, address,, and email has to go on the petition. If you're proud of your work put yours. If you're not then there's always the newest kid in the office - he'll never notice. 
(and for those of you too literal minded to realize that's a joke - That's A Joke - put your dang name on your work).

9. Certification - You must certify when you sent a copy of the petition to defense counsel, whether you want to state orally why the petition should be granted, that the number of words in the petition is less than 12,300 (state the number in the petition exactly)(this last requirement is from Rule 5A:4), and that 4 copies have been sent to the clerk of the Court of Appeals. This last one doesn't seem to be required, but everybody does it anyway.

Other things to remember: Don't forget the format requirements under 5A:4. Font must be 12-point or higher. Paper must be 11.5 X 8". Double space your text except for Assignment of Errors, headings, quotes, and footnotes. Don't screw with your margins. Use black print on white paper.

Almost all of that comes out of the early days of computer printing when petitions and briefs were limited by page length instead of word count. I wouldn't expect those problems to surface much in modern days.

Interestingly, the Court of Appeals has not limited its font types like the Virginia Supreme Court has. I'd suggest keeping it to easy to read fonts such as the VaSC had previously limited its filings to (Arial, Verdona, and Courier) especially if you're going to keep your font at 12-point. They're not pretty fonts, but they're easily readable even after you've already read thirty briefs that day. The pretty  fonts (Times New Roman, Palatino Lynotype, &cetera) look better, but the serifs and swirls all blend together if you're over 35 years old and have been reading for an hour or two. [As an aside, the VaSC is going to regret allowing these fancy-blur together fonts. All the young attorneys will use them to impress the Court. All the older attorneys will use them to impress the client. All the Supreme Court Justices will go blind trying to read them (unless maybe the VaSC's requirement of 14-point font saves them.)]

And now I've taught you all the basics of filing a prosecutor's appeal to the Court of Appeals of Virginia. Go forth, be fruitful, and appellefy.

22 November 2016

Ambush in Bartlette - The Final Chapter (39)


“LIFE”

Yusif Habib looked around the empty office. It was stripped bare. Nothing was on the walls. The only thing on the desk was a closed portable computer. And, taped to the back of chair behind the desk was the front page of the latest Mountain Democrat. The two inch high headline said it all.

Underneath it, in Brad's unmistakeable scrawl was one word.

“congratulations”

------------


Madeline Mullins sat at the kitchen table at her house looking at the medium sized rock on her left hand. Every romance novel she'd ever read told her that her heart should be about to burst from joy. And yet, the best she was able to come up with so far was ambivalence.

Sure, Yusif was a good guy. Heck, he was probably the best guy she could hope to catch unless she moved to Roanoke or Knoxville or some other city. Still, if he hadn't sprung it on her at the stroke of midnight New Year's Eve – the very moment he officially became the commonwealth attorney - she wasn't sure she would have accepted.

What was further troubling, she suspected that Yusif knew it. She found herself questioning whether he knew she would waver and manipulated her so that she couldn't refuse without looking like an ass. Or maybe he was just trying to be romantic and made the moment as special as he could. All she was certain about was that she really didn't feel like she had any choice when she accepted.

Well, she had months before any viable wedding date. She'd probably go through with it. Maybe.


--------


Robert “Bo” Ross stood in the courtroom as Judge Isom swore him and his deputies in. The room only had about half the usual number of deputies. Greg Harvey and a number of other deputies had retired or found other jobs between the election and now. Bo had refused to rehire several more. He was still uncertain about a few of the remaining deputies, but he couldn't fire everybody. Actually, he could, but then he and his chief deputy would have to patrol the entire county twenty-four hours a day until new ones could be hired. And, besides that, some of these guys deserved a chance to prove themselves.

Next to Bo stood Patrick Mahan, now wearing the gold oak leafs of a major. He was the new chief deputy and Bo was happy to have him. Bo knew that Pat had left his job in Boston after he got in trouble for being too honest in his testimony during a major trial. As far as Bo was concerned that spoke volumes for Pat's character. He could do worse than having a chief deputy who was too honest.

As soon as all the formalities were done, the two of them were going to get down to the business of making the Bartlette County Sheriff's Department the best department this side of Roanoke. And then they would make it even better.


----------


Father Jerome Tolton drove toward his next job for Bishop Mannion. He'd thought the Bishop would return him to the monasteries he'd been working with before he'd been sent to Bartlette, but that was already being handled by another and Jerome was being sent to Winchester instead.

The local church was thriving and well run so there wouldn't be the usual problems Jerome dealt with. However, the local prosecutor had just indicted the son of a parishioner on a capital murder charge. An overly clever defense attorney who saw how things turned out in Bartlette asked the Bishop if the Church could help there too. Bishop Mannion had been all too happy to assign Jerome to the task. Now Jerome was on his way to be one of the attorneys representing Kyle Bialik.

He heard a chuckle from behind him in the pickup truck's half-seat. “Murder and moral ambiguities. Your God seems to be abandoning you to my keeping. We're going to have fun, Father. Lots and lots of fun.”


-----------

Gill Pinsky sat at his desk enjoying a bagel for the first time in weeks. The biggest problem with going out to the stix was the lack of good, civilized food. The second biggest was all the stuff that piled up in his office. So, he was killing two birds with one stone.

He skimmed over a request by a judge that he take a capital murder case in Lee County. It was over a week old so he was certain someone had undertaken the defense by now. Still, he would call the judge later today and politely decline. His last foray to the wilderness would satisfy him for quite a while. The end had never actually been in question, but dealing with the rubes got under his skin after a while. He was going to be certain that all his cases were in the civilized parts of Virginia for the foreseeable future.

He picked up the next sheet of paper and shoved all thoughts of backward counties in the middle of nowhere from his mind.


----------


Brad Dollerby sat in his new office reading the secret agent novel his mother-in-law had bought him for Christmas. The hero was some sort of generic mix between Jason Bourne and James Bond and there was nothing particularly original in it. He knew the reason Abby had bought it for him. The whole story revolved around someone setting off a suitcase nuke in Haysi, Virginia which was about forty minutes north of Bartlette County. So far, the book hadn't explained why anyone would nuke a town of five-hundred people. It just had secret agents chasing each other around the world stalking and shooting at each other. Normally, he would have thrown away a book this bad after a couple chapters, but he knew Abby would ask him about it and he didn't want to lie to her. Besides, he didn't have anything else to do at the moment. Reading the book kept him from dwelling on the disasters of the last few months.

He had appointments scheduled for this afternoon, but this morning he was just sitting there in the hopes that someone would come in and plop down a hefty retainer to sue his neighbor because the jerk built a fence three inches over the property line or some other vitally important issue which people were willing to squabble about until the end of eternity.

He was in the middle of reading a portion of the book where the bad-girl villainess was revealed to be a misguided eco-warrior who bombed Haysi because . . . when Maggs yelled through the open door at him.

“You've got a phone call on line one.”

“Tell them to make an appointment like everybody else.”

“Sure, Nickel, I'll tell the chairman of the Republican Party of Virginia that he should get his butt in a car and drive down from Richmond so that he can have an audience with your majesty.”

On second thought, Brad reflected as he reached for the phone, maybe I ought to take this call.


----------
FINIS
-----------

17 November 2016

05 November 2016

Ambush in Bartlette: Chapter 38


­Gil Pinsky sat in the courtroom alternating between boredom and worry. There was no other place to go. His client was being held by the deputies in the room they jokingly called a law library and the prosecutor was up in his office. That left the defense table for Gil and his people.

Not that Gil was wasting the time. He was reading through files in his other capital murder case out of Newport News. However, it was a little difficult to concentrate on because he didn't really expect that one to go all the way to trial. The local African-American prosecutor had gotten himself elected a year back promising “equal justice for people of all hues and hopes.” When he charged a young African-American man with capital murder it sparked an uproar and Gil was doing everything in his power to fan the flames. The local NAACP chapter had proven easy enough to get active, but the higher ups both in the NAACP and ACLU were proving skeptical. There was nothing too unusual there. It was always easy to manipulate the dedicated and gullible members of local organizations, but their leaders in D.C. had to be at least a little perceptive to rise to the top. And they weren't proving too eager to fall in behind a guy who killed six people on a ten day armed burglary spree. Still, he'd find some leverage somewhere to force them to get involved. Within six months the prosecutor would cave and offer murder one or maybe – if Gil played got the national organizations to play the media right – murder two.

It would be good to get back to a part of the world where things made sense. There was no media here that was worth a dam. Sure, there were three television news vans out front of the courthouse, but one was from a Roanoke channel nobody even got on their cable here, one was from a Tennessee channel, and one was even from Kentucky. The situation with the local paper was even worse. The Mountain Democrat published once a week and mostly ran puff pieces on the front page with coverage of the local high school's sports on page two. Gil read it from front to back the first two weeks he was here and never picked up another copy. There was no worthwhile local media to engage with during this case.

And that was just one of the multitude of things that were wrong with this place both inside the courtroom and out. Everything he tried here fell to pieces. The latest failure had been the Christmas gambit. He'd been certain that the good Christian jurors of Bartlette would never go to Christmas dinner with the prospect of ordering someone's death hanging over their heads. The judge had even cooperated, although Gil had no illusions that it was to help his defense. The judge was obviously worried about what would happen if this case ran into the new year when the new prosecutor took over. Still, whatever his motivation, the judge held the jury in the courthouse until three in the afternoon the day before Christmas. The deputies and clerks had been beside themselves and the courthouse emptied in seconds once the judge released the jurors.

But, the judge wasn't finished. He'd ordered the jurors to return Friday the twenty-sixth and Saturday the twenty-seventh. When Gil objected to the Saturday – pointing out that he could not work on Saturdays for religious reasons – the judge had been singularly unimpressed and reminded Gil that he wasn't the only attorney appointed to the case. Gil was forced to leave Saturday in the hands of the local co-counsel and by some miracle nothing happened which required a lawyer who knew what he was doing.

Now it was eleven o'clock Monday the twenty-ninth and Gil was really starting to worry. Every day that Christmas faded into the past the chance for a sentence of death increased. These people weren't like those in other parts of the state. The grasp on civilization here was tenuous. During trial preparation, Gil found out that the first local attorney Judge Isom attempted to appoint to this case turned the judge down because he was afraid it would interfere with bear hunting season and he'd bought a bunch of dogs and spent months training them to chase bears down. If an attorney prioritized a barbarism like hunting bears with a pack of dogs over defending a human life it said all sorts of disturbing things about the community's character. And the longer those jurors were out the more Gil worried about that character.

--------------------------------

Brad sat alone in the room which would be his office for only a couple more days. He'd given Paula vacation until the new year so no one was answering the phone and he was ignoring it. There wasn't much he could do to fill the time. Maggs came over on Saturday and they cleaned out all his personal stuff and he'd even gone into each computer and wiped them. When the traitor got the office there wouldn't be anything on the computers he could use against Brad.

So, basically all Brad could do was watch shows on his phone. He finished an episode of Justified and looked up at the clock on the wall. It was one forty-five and there was no sign that the jury was anywhere near a verdict. When Sanger's attorney refused to put on a defense Brad thought there was a good chance the jury would come in before Christmas and thinking back on it he was fairly certain that was what Pinsky was trying to make happen. That backfired because it was too obvious; if Brad could figure it out then the jurors could too. However, when the judge required them all to come back the Friday after Christmas and Saturday too he'd been sure they would come back with a quick verdict. They didn't. So, now it was Monday and everybody was sitting around on pins and needles waiting.

His thoughts wandered to his new law office. Maggs presented it to him as his Christmas present and it was directly across from the courthouse in the old Vincent Coal building. He'd been so wrapped up in this trial and all the other stuff he had to do running the office himself without a deputy prosecutor that he hadn't even looked for an office. Maggs found him one on the second floor with a big space on the building for a sign facing the courthouse. It had a room for his desk and books, a conference room, and a waiting room out front with a little desk where Maggs informed him she would be working as his secretary. When she took him there Christmas morning it had been a poignant moment that both reminded him why he loved Maggs so much and drove home the fact that he was being forced out of a job he was devoted to.

The rest of Christmas had been touchy. His mother-in-law asked if he would invite the Priest over for Christmas dinner, but Brad refused using the fact that he always went to his parents’ get-together as an excuse. Consequently, Abby cooked a meal and took it to the church while Brad and Maggie went to his Dad’s house. There the men ate and watched football. The women did whatever women do on big holidays which Brad suspected involved making fun of the neanderthals in the other room who were celebrating the birth of Jesus by yelling about how much the Cowboys suck. Then he returned home with his wife where Abigail Mahan was waiting to ignore them.

When they got back, Abby went into her room, closed the door, and turned on her television. Brad didn’t have a problem with that, but it drove his wife nuts. She tried to get her mother to come out three times and when Abby refused to come out for supper Maggie went into silent mode. Brad spent the rest of his Christmas very carefully doing absolutely nothing which could cause that tinderbox to burst into flames. The next morning he rose early and went to the courthouse before the two women started back at each other and they seemed to have solved their problems while he was gone. So now he was free to just feel the pressure of the trial without too much tension at home.

He turned back to his phone, but fired up YouTube this time and started watching whatever videos popped up.

-----------------------

Everyone stood as the jurors re-entered the courtroom. Jerome was on the front row trying to read the jurors as they file back in. They all looked somber and didn't make eye contact with either attorney. Jerome couldn't make anything from their demeanor. Twenty minutes earlier, the state trooper acting as one of the bailiffs came out to the courthouse's tiny hallway and told the waiting reporters that the jury was coming back in. Now, as the clock on the wall of the courtroom said it was four-thirty-seven, the jurors were taking their seats.

The judge sent the deputy bailiff over to take the verdict form from the forewoman. He gave it to the judge who read it and then asked the forewoman if this was their unanimous sentence. When she replied “Yes”, the judge handed the form to the clerk. He looked at the paper and started to read.

“In the first degree murder of Keith Tolliver, we sentence the defendant Jefferson Sanger to life in prison.”

“In the capital murder of Theodore Pahl, we sentence the defendant Jefferson Sanger to . . .”

15 September 2016

Is Math Racist?

Via Gruntled Center, I found this article which leaves me wondering if the author has ever actually been involved in a criminal sentencing. She seems to assume some sort of godlike powers for both those putting together statistical frameworks for sentencing and those filling out the guideline sheets that are handed down.

Here's the statement which piqued my interest:
"[S]ome states started using recidivism models to guide sentencing. These take into account things like prior convictions, where you live, drug and alcohol use, previous police encounters, and criminal records of friends and family. "
(1) Prior convictions - Yes, they are used.

(2) Where you live - Really? In what world is this ever considered statistically? Virginia certainly does not (see Virginia guidelines for drug crimes as an example) and I doubt many other States have the resources to develop and keep up the kind of state-wide models that would be required. I haven't done any federal work in over ten years, but a look through their guidelines manual doesn't show anything along those lines either (see particularly chapters three and four found here). Sure, a specific judge may have enough knowledge to know what an area of his city/county is like and take it into account, but I want to see proof before I believe it is being put to significant statistical use.

(3) Drug and alcohol use - While this could be a valid consideration in sentencing (for reasons that could both be helpful or harmful to a defendant), I've never seen it considered in the statistical portion of sentencing guidelines. There is usually a section in the social history accompanying the guidelines that addresses this, but it's not part of the statistics.

(4) Previous police encounters - I don't know about other States, but introducing unadjudicated crimes and police encounters during sentencing is a big no-no where I've practiced in Virginia and if I tried to use something like that (without the defense attorney bringing it up first) I would get a dressing down by the judge. In the federal system things work differently and unadjudicated offenses tied in with the one you have been convicted of can be added in. But even there "previous police encounters" alone would not be statistically added in.

(5) Criminal records of friends and family - Again, in what world is this ever considered statistically? Where? I want to see empirical proof that this is used statistically anywhere in the U.S. before I believe it. Realistically, it can be a non-statistical consideration especially in communities small enough that the judge knows that the last three generations of Smiths out of Dry Gulch Hollow have been drug dealers. Familial relations is also part of the social history given to the judge along with the statistical guidelines. It may be considered, but not statistically.


In the end, this is a philosophical narrative mixed with some fear mongering. The author doesn't seem to have much actual knowledge about the current use of statistics in sentencing and in the end she offers two better uses for all these statistics she seems to think the criminal justice system has easily at hand for every day use. First, rehabilitate the prisoners who are likely to re-offend by teaching them a trade. I'm all for this too. I don't have high confidence in its ability to work in the real world, but it's a wonderful ideal to espouse. Second have friendly officers walking down the street handing out flowers to citizens rather than engaging in proactive policing. Here, I'm also not opposed - partially. Community policing is a good idea although it's usually not engaged in as much as I'd like because police departments don't have infinite resources (and other social and safety issues). However, I'm also a fan of proactive policing. Yes, I know that all sorts of professors have told us all that correlation after correlation after correlation after correlation after correlation after correlation of proactive policing (the dreaded broken windows) with dropped crime rates does not in any way, at all, ever point to any possibility of causation; instead, it's all about aging male populations (because we never make new young males to replace the ones that get old). However, there still seems to be an awful lot of correlation out there.

Anyway, I'll step off that soapbox for now. The use of statistics is generally a good thing. It provides a rational basis for large organizations such as legislatures and administrative agencies to act. However, they aren't being used in the 1984ish manner the author would have us believe. I won't claim this is because governmental agencies are above such a thing. Rather, it is because such a thing is beyond their grasps. I think if the author made a true study of the matter she would be shocked at what she would have to see as rather primitive statistical guideline systems actually in place in the various States and the federal government.

08 July 2016

The Great 2016 U.S. Supreme Court Freakout: DUI's

Every year there is a freak out over some decision from the U.S. Supreme Court. Sometimes, it's mostly a tempest in a teapot and that seems to be the case with this year's big paroxysm, Birchfield v. North Dakota, JUN16, USSC No. 14-1468.

Birchfield is a consolidation of three different drunk driving cases. It's poorly organized and requires at least a couple readings before you can suss out its organization and ruling. Everyone seems to be jumping to the false conclusion that it changes things an incredible amount, but if you actually read it rather than just listening to third person hype it doesn't (at least not in Virginia).


QUESTION:

The question is poorly laid out in the opinion so I'll quote the two sentences exactly:
The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches. 
Put more succinctly, can the government impose criminal sanctions for a person refusing testing to see if that person is intoxicated?


ANSWER:

The answer? Yes for breath tests. No for blood draw tests.


CASE ORGANIZATION:

The case rambles around, but it is organized into three possible rationales. First, do exigent circumstances justify the testing? Second, does search incident to arrest justify testing? Third, does implied consent justify testing? These three are confused in that the case is addressing both breath test and blood draws across the three questions.


EXIGENT:

To begin with, the court reiterates its holding in Missouri v. McNeely, APR13, USSC No. 11-1425, that while there are circumstances, to be determined on a case-by-case analysis, that justify an exigent blood draw the fact that the body metabolizes and removes the intoxicant is not enough by itself to make an exigent circumstance.


SEARCH INCIDENT TO ARREST:

A breath test is allowed as a valid search incident to an arrest because there is no expectation of privacy in air in the lungs and it can only provide evidence of drunkeness.

A blood test is not a valid search incident to arrest because the breath test is available, it is a significant bodily intrusion, and it can be used to develop evidence of more than drunkeness.


IMPLIED CONSENT:

The Court starts by stating very clearly,
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
So, under implied consent, non-criminal penalties for refusing a blood test are still valid. However, the court makes short shrift of the argument that criminal penalties should still be allowed.
Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

APPLICATION UNDER VIRGINIA LAW:

First, let's set out what the rule of this case is: A government cannot criminalize the refusal to submit to a blood test in order to prove drunk driving.


APPLICABLE VIRGINIA LAW:

§ 18.2-268.3(D) - A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of §18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under §46.2-391.2.

The green part is clearly allowed. The parts in yellow are allowed for breath tests, but not for blood tests. It's as simple as that. Here's the only thing which needs to change in the way in which officers handle DUI's in Virginia: When the officer reads implied consent for a blood draw he cannot mention any possibility of a criminal prosecution. If he does and the suspect relents and allows the blood draw it will be suppressed by the courts.

Otherwise, everything is just the same as it was. Carry on. Nothing to see here. At least until the Supreme Court goes back in session this Fall and people find some other tempest in a teapot to make them start screaming about falling skies again.

06 July 2016

Service Dog Fraud

Sadly, one of the statutes just put in place by our legislature is one putting a $250 fine on fake use of a dog under claim that it is a service dog. You'd think this wouldn't be much of a problem, but I know that I have spoken with more than one inn keeper about people claiming that all sorts of dogs are service animals in order to keep Spot with them in their hotel room. So, I thought I'd try to put down what the state of Virginia law is in this matter.

To begin with, let's look at the new statute: 
§ 51.5-44.1. Fraudulent representation of a service dog or hearing dog; penalty
 Any person who knowingly and willfully fits a dog with a harness, collar, vest, or sign, or uses an identification card commonly used by a person with a disability, in order to represent that the dog is a service dog or hearing dog to fraudulently gain public access for such dog pursuant to provisions in § 51.5-44 is guilty of a Class 4 misdemeanor [up to $250 fine].
I can't find anything under Virginia law specifically set up to give a handicapped individual a specific ID card. Maybe the DMV issues cards listing specific disabilities as part of providing ID cards. Consequently, I think the manner in which service dogs are identified is by the equipment they are wearing. In fact, that seems to be the exact method of identification called for in § 51.5-44(E):
 E. Every totally or partially blind person shall have the right to be accompanied by a dog in harness trained as a guide dog, every deaf or hearing-impaired person shall have the right to be accompanied by a dog trained as a hearing dog on a blaze orange leash, and every mobility-impaired or otherwise disabled person shall have the right to be accompanied by a dog, trained as a service dog, in a harness, backpack, or vest identifying the dog as a trained service dog, in any of the places listed in subsection B without being required to pay an extra charge for the dog, provided that he shall be liable for any damage done to the premises or facilities by such dog.
 Notice that there are only three types of service dogs allowed and each has to be wearing some sort of identifying device. This is the only real identifier that an inn keeper could use to differentiate Spot the pet from Spot the service dog. To be fair, one would expect that in the vast majority of cases it will be clear if someone has vision, auditory, or mobility problems.  However, the "otherwise disabled" leaves a lot of wiggle room. And if anybody wanted to cheat in that area it is ridiculously easy to buy the gear which proclaims a dog is a service animal.

The only real limit here is that "[t]he provision of emotional support, well-being, comfort, or companionship shall not constitute work or tasks for the purposes of this definition."  Va. Code § 51.5-40.1.

In the end, I have to conclude that hotels and motels should be within their rights under Virginia law to refuse service to people without the obvious handicap who don't have the dog properly outfitted. Beyond that, if anyone is caught faking they could end up coming to court to get fined. If the innkeeper is suspicious he should call local law enforcement to investigate.

24 April 2016

This Year's Vacation: Day 01

This year's trip began Saturday with a drive to Rome, Georgia to watch the Rome Braves host the Asheville Tourists (with a side trip en route to play disc golf in Dalton, Georgia).

Rome has shown all the creativity in choosing its name that all the Braves minor league affiliates do (except for the awesomeness that is the Carolina Mudcats) and is yet another "Braves." However, in Rome they have concentrated less on the "Braves" part and more on the "Rome" part.  The predominate logo you see is a baseball with a centurion's helmet. When you don't see that the logo you see usually involves a Roman column with a tomahawk. I really like the helmet logo and had to stop myself from buying more than  just the hat I planned to. If I have enough money left, maybe I'll swing by on my way back to Virginia and buy a shirt or even a jersey.


The Stadium: Rome has a pretty decent stadium. The concourse was surprisingly well filled with various food vendors of different types and at least three souvenir sellers in addition to the main shop. Most of the seats are located around the infield, although there is a place where you can sit on the grass beyond the right field wall. On both sides of the field, once you get to the outfield there are places for people to sit on the grass and watch the game and behind those are tables for people to sit and watch the game. All-in-all, it's a solid single-A ballpark.

The Show: I didn't get to see the local mascots in action much because Rome had some "famous" imported mascot whom I had never heard of. He did a fairly good job with skits between innings that kept the crowd entertained. They also had cheerleaders. And I don't mean the one or two girls (or guys) standing on the dugouts you see at many places who do a skit or two. Nope. Five or six girls were on each dugout between innings and up in the crowd during play. I've not seen that in American baseball before; it felt like I was watching Taiwanese games in the Premiere 12.

The Game: Rome and Asheville played an interesting game. Asheville seemed to have the better fielders and the Braves made some errors that hurt them and allowed the Tourists to play small ball and score single runs in both the third and the sixth. Rome got a homer from Jonathan Morales in the bottom of the seventh to bring the game within one run.





When the bottom of the ninth came around and the Braves were only down by one the crowd, which had shown a fair amount of interactive interest to that point, went nuts. The guys running the scoreboard encouraged them to scream between each pitch, ran the "charge" bugle call, and played the music for the tomahawk chop (every kid in the stadium knew it and did it).  Asheville's pitcher got rattled and walked two batters, which made the crowd get even louder and more worked up. Unfortunately for the hometown fans, then the Asheville pitcher calmed down and struck everybody else out. Still, it was great seeing the crowd become so live and into the game.


Overall, it was a fun experience and a good way to start this year''s Big Vacation. It's not quite the same experience as starting last year's at the Dayton Dragons, but nothing I've seen in the lower leagues is. If you are in Georgia it's worth making a trip to stop in Rome for a ballgame.