Driver License Silliness

Ever wonder where some of the out-and-out weird ideas that people bring into court come from?

Go watch this video on YouTube about how none of us are required to have drivers' licenses because we're "travelers" not "drivers."  It even gets more fun if you read through the comments:

This video also served as a tool to show how many people will jump to citing codes, statues, laws, etc. To say this video is wrong. This indicates as we have expected. Most Americans allow others to ASSUME authority over them. Those that write the codes, statutes, laws etc. have come to understand that the slaves will accept anything as long as it's called a "code", "statute", "law", "ordinance" .. etc.

Hmmm . . . not sure I like where this train of thought logically leads.  If laws passed by a legislature aren't valid because they are imposed, I'm not sure what could qualify as a rule we must follow. After all, the people who wrote the constitution weren't even an elected legislature. And if we go further back to things that the Constitution was based on, like the Great Charter, the signatories were nobles who weren't even appointed by people who had been elected. And if you assume that the Magna Carta was not valid then none of us freemen have any individual right not to be arbitrarily imposed upon by our leaders. We're no better than serfs and should be so by this line of reasoning.

Moving on . . .

I can't speak for other States but in Virginia a driver's license is specifically defined:

§ 46.2-100. Definitions.

"Driver's license" means any license, including a commercial driver's license as defined in the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.), issued under the laws of the Commonwealth authorizing the operation of a motor vehicle. 

And the penalty for not getting a license is also specifically defined:

§ 46.2-300. Driving without license prohibited; penalties.

No person, except those expressly exempted in §§ 46.2-303 through 46.2-308, shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver's license, as provided in this article, satisfactorily passed the examination required by § 46.2-325, and obtained a driver's license, nor unless the license is valid.

A violation of this section is a Class 2 misdemeanor. A second or subsequent violation of this section is a Class 1 misdemeanor.

Upon conviction under this section, the court may suspend the person's privilege to drive for a period not to exceed 90 days.

Of course, you could still try the old "I was a traveler, not a driver" line, but I'm pretty sure that the judge is going to fall back on the normal, accepted definition of "drive":

Transitive Verb

4 a : to direct the motions and course of (a draft animal)

b : to operate the mechanism and controls and direct the course of (as a vehicle) 

Intransitive Verb

2 a : to operate a vehicle

b : to have oneself carried in a vehicle

Pretty sure that a judge is going to apply all of three seconds of thought before he decides that operating and directing a vehicle is driving.

Larceny, Value, and Inchohate Offenses

In the vast majority of cases, a grand larceny in Virginia is the theft of an item worth more than $199.99. There is no doubt that the value must be proven to prove the felony (otherwise it's a petit larceny).  However, what happens if the charge is an incohate offense such as attempt to commit grand larceny or conspiracy to commit grand larceny?

Picture the following scenario: A banker has a foot tall gold penny sitting on his desk. Defendant01 and Defendant02 see the gold penny and decide to steal it.  The next day they run in the doors with a two wheel truck, shove  the penny into a box on the two wheel truck, and run back out the door. When they duck into an empty alleyway two blocks down they eagerly pull the penny out and realize that it is a giant piece of chocolate covered with golden foil. It even has a price tag on the bottom stating a retail price of $12.95.  When the police catch them five minutes later they admit that they thought it was worth thousands.

Did they attempt a grand larceny? Did they conspire to commit a grand larceny?

Of course, the most likely thing to happen here is that the Defendants would be charged with petit larceny. But still their intent was to commit a felony.

In Virginia an attempt requires a direct ineffectual act meant to be in furtherance of the intended crime. See Cuffee v. Commonwealth, 61 Va App 353 (2013).  There isn't a much more direct ineffectual act toward grand larceny than actually committing a mere petit larceny because you mistook the value of the item you stole..

In Virginia a conspiracy only requires an agreement between two or more people to commit a crime. It does not require any act in furtherance.  See Chambliss v. Commonwealth, 62 Va App 459 (2013).  The Defendants in our scenario agreed to act together to steal a foot tall, solid gold penny which would have been worth more than $200 (and the defendants clearly believed it would be worth far more).

The only case law I found near this question was an unpublished opinion which assumed - without addressing this question at all - that in an attempted grand larceny a $200 value must be proven before it moves on to rule that it wasn't. Curry v. Commonwealth, 2000 VaApp No. 0722-99-1 (U).

While I think there are strong arguments for allowing the attempt and conspiracy charges based on intent to take something worth at least $200 rather than actual value of the item taken, in my opinion better reasoning requires the actual value of the item to be proven as $200 or more.

The basic reason for this relies on an analysis of Virginia code 18.2-95, which establishes the value amount for grand larceny, and Virginia Code 18.2-23(B), which establishes the punishment for conspiring to commit grand larceny. 18.2-95 states in pertinent part:

Any person who . . . (ii) commits simple larceny . . . of goods and chattels of the value of $200 or more . . . shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

You'll notice that there's no intent in the statute. That's because a defendant does not have to intend to steal something worth $200 in order to be convicted of grand larceny. She just has to steal something worth more than $200. The intent in larceny is the intent to deprive the owner of his chattels permanently. In other words, the general crime is larceny and the $200 amount found in 18.2-95 is an aggravating punishment element that requires no intent in and of itself.

18.2-23(B) has much the same limitations.

If any person shall conspire . . . to commit larceny . . . where the aggregate value of the goods or merchandise involved is more than $200, he is guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than 20 years.

Note that here again the statute does not require an intent in the conspiracy to take items worth more than $200.  It does add a secondary intent element beyond that of larceny. In a conspiracy to larceny a person (1) has to intend to join with at least one other (2) with the joint intent of depriving an individual of his chattels permanently.  However, the value in the statute is not that hoped for and sought by the conspirators; it is "the aggregate value of the goods or merchandise involved." In other words, the belief that the gold penny would be worth thousands is irrelevant because the gold penny they sought did not actually exist.  Instead, the actual value of the chocolate gold penny "involved" was $12.95. Here, the general crime is conspiracy to commit grand larceny and the aggravating punishment element of $200 is further limited to items "involved" rather than aspirational.

Based on all this, I conclude that the $200 must be proven in these incohate offenses. I do find myself wondering whether attempted grand larceny can actually be charged. Conspiracy to grand larceny has its own statute, so there's no doubt that it can be charged. However, attempted grand larceny does not have a stand alone statute. This leads to a problem. Since 18.2-95 is a statute adding an aggravating punishment element the actual crime is complete without the $200 value. The defendant has no required intent to steal $200 or more. She just has a required intent to deprive an owner permanently of chattels. Therefore, it would seem that the only attempt which could be charged is that of simple larceny (which breaks down to petit larceny). The General Assembly has acknowledged this issue by putting the conspiracy to grand larceny statute in place (otherwise it would have the same problem). It has not so acted where attempted grand larceny is concerned.

Should you tell the judge if the defendant did it?

Back to Double Jeopardy: Charge or Punishment?

A couple weeks back, on a prior post about double jeopardy, a commenter took exception with Garrett v. United States, 471 U.S. 773 (1985). At the time, I promised to try to examine this more closely in a subsequent post. This happens to be a subsequent post.

Let's start by laying out what the double jeopardy clauses are in the federal and Virginia constitutions:

"Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., 5th Amendment.  

"He shall not . . . be put twice in jeopardy for the same offense." Va. Const. Article I Section 8.

The key to both of these is the term "same offense."  So, let's look at Webster's definition of offense:

5.     a :  a breach of a moral or social code
        b :  an infraction of law

This  is further clarified if we look to specifically legal definitions:

A crime or punishable violation of law of any type or magnitude. law.com

A crime or misdemeanor; a breach of the criminal laws. The Law Dictionary 

It seems fairly clear that the constitutions both meant for a particular crime, represented by a particular set of elements, to be punished only once - no matter how many times the legislatures, courts, and prosecutors desire to punish the offender.

So, how did we go from this to the point that the Virginia Court of Appeals could declare in Tharrington v. Commonwealth that it is perfectly acceptable to convict a defendant of larceny with intent to sell and the fully included lesser offense of larceny and punish the defendant for both?

I think it all starts with predicate offenses as applied in racketeering type offenses. An older example of this is Albrecht v. U.S., 273 U.S. 1 (1927):

There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information, four charged illegal possession of liquor, four illegal sale, and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit, and punishing also the completed transaction.

The rationale here is solid up to the last dictum sentence which creates a much broader rule than the one the case actually followed.  The rule the case followed seems to be that if the completed transaction (sale) could be done without an actualized potential act (possession) then both the actualized potential act and the completed transaction can be charged as crimes. This applies perfectly in almost any racketeering type offense. Almost all of them them use actualized potential acts (murder, drug sales, human trafficking) to prove a completed scheme (usually the running of a big or small criminal organization). While each actualized potential act is not in and of itself required to prove the scheme, discrete acts in the same or similar category are. Therefore, the both the actualized potential acts and the completed scheme can be prosecuted.

Garrett is a perfect example of this. Garrett had previously been convicted of drug trafficking and in a subsequent prosecution that previous prosecution was used as proof of a continuing criminal enterprise. The prior conviction was an actualized potential act. It was not a lesser included offense because Garrett could have completed any number of potential acts to fulfill the requirements of the continuing criminal enterprise statute. Therefore, there was no double jeopardy issue.

Unfortunately, the Court in Garrett latched onto that dictum in Albrecht and expanded it even further.

Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature—in this case Congress—intended that each violation be a separate offense. If Congress intended that there be only one offense—that is, a defendant could be convicted under either statutory provision for a single act, but not under both—there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis.

. . . 

Insofar as the question is one of legislative intent, the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress.

That has no logical mooring in the 5th Amendment and makes no sense in interpreting whether a prosecution is in violation of double jeopardy. Under that language, the only time double jeopardy adheres to any offense is if the legislature specifically intends it too. To be fair, I don't think it's actually been applied that way; I think it is mostly applied as "If the legislature says a person can be prosecuted for two crimes with exactly the same elements (for a single act) then they can."

And thus we come to Tharrington. Tharrington was convicted of grand larceny and grand larceny with intent to sell. This would never pass the Blockburger test because they both have exactly the same elements until grand larceny with intent to sell adds the intent element. In other words, grand larceny is entirely a lesser included offense of grand larceny with intent to sell and anyone prosecuted and convicted of both will be twice punished for the exact same behavior. 

Tharrington lifts the rule laid out in Lane v. Commonwealth, 51 VaApp 565 (2008):

When considering multiple punishments for a single transaction, the controlling factor is legislative intent. The legislature may determine the appropriate unit of prosecution and set the penalty for separate violations. Therefore, although multiple offenses may be the same, an accused may be subjected to legislatively authorized cumulative punishments. It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.

Although the Virginia Court of Appeals doesn't refer to the US Supreme Court, that's a distillation of the reasoning in Garrett.  In fact, it sets out the Garrett rule about as simply as it could be set out. Using this distillation of the Garrett rule, the Virginia Court of Appeals finds that the grand larceny with intent to sell statute has language indicating that the Virginia General Assembly intends for anyone who falls afoul of that particular statute to be punished twice for the same offense and upholds the dual convictions. As ridiculous as I think that result is, I can't blame the Virginia Court of Appeals; it was just following bad precedent set out by the US Supreme Court.

Having examined all that, here's the current state of double jeopardy protections. Perhaps uniquely under constitutional standards, legislatures determine whether prosecution under any two or more statutes violate double jeopardy protections - not the courts. Consequently, the "same offense" language has been interpreted out of this protection. In its place, the courts have substituted a maximum punishment standard. If the legislature passes 17 statutes which all punish a person for exactly the same act and states in each statute that it can be prosecuted even if it has the same elements as another offense then the person can be prosecuted and convicted of all 17 statutes despite the fact that their elements are all exactly the same.

Only if the legislature has failed to take a stance do the courts actually apply the "same offense" language from the double jeopardy clauses and try to determine whether the prosecuted offenses are duplicative in violation of double jeopardy protections.

The only conceptual framework which I can come up with in support of this is to not view the 17 criminal charges as 17 offenses, but as one offense and 17 aggregate punishment statutes. As much of a stretch as that model is, it has to be the one the courts are using, otherwise the deference given to the legislatures' decisions to make exactly overlapping crimes prosecutable against a single person for a single incident is entirely indefensible.

Warriors Path Disc Golf

Gotta do something on the weekend, so I do disc golf. Here are some highlights. Blow it up to full screen, high definition to best see the discs in flight.

And, yes, I did have some bad throws, but you don't need to see me throwing into a tree 10 feet in front of my face.