Glitch in a Flawed Statute

A first or second conviction of DUI within ten years is a misdemeanor in Virginia Or is it?

The punishment statute provides in Va Code sec. 18.2-270:

A. Except as otherwise provided herein, any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.20, but not more than 0.25, he shall be confined in jail for an additional mandatory, minimum period of five days or, if the level was more than 0.25, for an additional mandatory, minimum period of 10 days. The additional mandatory, minimum period of confinement shall not be suspended by the court. In addition, such person shall be fined a mandatory, minimum fine of $250, which shall not be suspended by the court.

If your BAC was .25 you face a class one misdemeanor with a maximum penalty of 12 months and 10 extra days, "an additional mandatory, minimum period" (or at .20, 12 months, 5 days). The local jail keeps my client for that extra time on top of whatever sentence the judge may set forth.

The problem with that is that the General District Court, where almost all of these cases are decided, only has original jurisdiction over misdemeanors occurring in the locality. In Virginia, a felony is defined as "punishable with death or confinement in a state correctional facility." It's a somewhat circular definition because Va Code sec 53.1-20 defines people who enter the custody of DOC by using the word "felon":

B. Persons convicted of felonies committed on or after January 1, 1995, and sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system [].

Basically, anything over 12 months is a felony. It exceeds the maximum punishment of 12 months for the highest level misdemeanor (Class 1) and it subjects the convictee to potential punishment in a state correctional facility.

Interesting, you're thinking, but what's the point? After all, if you argue this in court all the prosecutor has to do to avoid your argument is to move for nolle prosequi and direct indict your client in Circuit Court where jurisdiction would be clear. The point is that no prosecutor I know of has been taking this step. Therefore, an unknown, but potentially large, number of citizens have been convicted by a court which did not have jurisdiction to do so.

The point is that an order handed down by a court which had no jurisdiction is (or at least ought to be) void ab initio. A court can only be given jurisdiction by the Legislature and a person acquiescing in a court order he believes valid under the law does not constitute a legislative action. This is pertinent because as the law stands prior DUI convictions are underlying offenses for DUI (2d), and the Class 6 felony (max 5 years) DUI (3d) or greater. As of 01 July 2004 DUI convictions will also be underlying convictions for the newly criminalized refusal to take a breath test. As the DUI laws get more and more draconian the issue of whether a prior conviction actually exists becomes very, very important.