26 April 2011

Why Change That Law?

I'm going through all the new laws the General Assembly of Virginia has passed and trying to figure out which ones change criminal or traffic laws so I can brief the local deputies and officers. Sometimes I wonder exactly why a change was made. For instance, as 46.2-859 currently stands, it is illegal to pass a (un)loading school bus:
A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion.
Apparently, that didn't work because the General Assembly is changing the statute (effective 01 July) to:
A person driving a motor vehicle shall stop, such vehicle when approaching, from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion; any person violating the foregoing is guilty of reckless driving.
The only reason I can conceive that this change is being made is that somewhere out there a defense attorney is arguing that the current statute is oblique and does not specifically require a driver to stop and therefore punishes drivers for doing an activity which they are not forbidden to do. It's a creative argument, but I can't see any judge I've practiced in front of buying it.

So, the question is, do I tell the LEO's about this or just blow it off as the General Assembly tweaking a statue without changing its meaning in any significant way?

Gotta admit, I'm leaning toward the second.

5 comments:

Anonymous said...

No, the legislative fix is in response to some asinine General District Court case out of Occupied Virginia.

Story here:
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/30/AR2010113004624.html

Anonymous said...

It is discouraging that the other comment here called the Fairfax Circuit case (that pointed out the glaring flaw in this poorly-worded law) "asinine", as if judge should be deciding the result first and then go backwards to twist the law to justify the result. In this great Commonwealth of ours, we should want judges to faithfully interpret the law as written.

I guess the person behind the prior post thinks that a judge should not follow the plain language of the statute as written by the legislature. I hope that most people would agree that the judicial branch should not violate separation of powers by being a judicial activist who presumes to rewrite a sloppily-drafted law.

I expect the highest degree of precision when our state legislature drafts laws. If judges disregard an obvious mistake in the wording of a law, then the General Assembly lacks motivation to be careful when declaring what the law is.

In that so-called "asinine" Fairfax Circuit case [as the link to the Washington Post story shows], the defense lawyer brought to court a local university English professor who basically explained that the poorly-worded law compelled a dismissal of the charge. No one-- not the judge, not the prosecutor, not the police officer-- presented any credible argument or evidence to dispute the professor's contentions.

A Republican state delegate (David Albo) was quoted by the Post agreeing that the state needed to fix this. Moreover, a Democrat state delegate (Scott Surovell) was the legislator who led the effort to get this mistake corrected.

In my view, the author of the prior post seems to be saying "I don't care what the law actually says-- I just don't like the result." Of course, we are a nation of laws, thankfully.

-MSK (Fairfax County)

Anonymous said...

OKAY, I read it. Ha Ha. Now what is Occupied Virginia?

Ken Lammers said...

Well, since I'm pretty sure he isn't talking about West Virginia, he must be talking about the counties around DC where people come from all over the place to live and may be just a smidge out of tune with the rest of the people who have actually had family in Virginia for the last 6 generations.

Anonymous said...

Thank's Ken. That's sorta what I thought.