Farm Use Abuse

If you live in Virginia, you've seen a truck roaring past you on a highway and looked over to see that it doesn't have real plates. Instead, it has a piece of cardboard attached to it that says "Farm Use." Of course, there ain't a farm anywhere in shouting distance. Personally, I see two types of trucks that do this: (1) Hunks of junk which are held together by lots of duct tape and a few prayers, and (2) Brand spanking new $60,000 behemoths. Shockingly, almost no one I know believes these vehicles are being actually used for farm purposes. Now, I know what you're thinking: Surely none of the good, honest, hard working citizens of the Commonwealth of Virginia would ever try to abuse a loophole in the system. But, just in case you run into the ever-so-rare Virginian rule breaker or a guy who moved here from some Yankee State, here are the rules as I understand them.

Registered Farm Use

§ 46.2-698 - First of all, if a vehicle has a 7,500 pound "gross vehicle weight rating" then it can be a registered farm use vehicle. There are cost advantages to this as opposed to regular registration and it comes with its own DMV issued plate. Gross vehicle weight rating is the amount of weight the vehicle is supposed to be able to carry including its own weight. Most commonly, these are large pickup trucks such as the Ford F-250 or Ram 2500 or work vans.

(A) When used for farm purposes, the registered farm vehicle can only be used by the person running the farm and it can transport (1) items to market, (2) materials, tools, or supplies for the farm, (3) things incidental to regular farm operation, (3) forest products, and (4) items to a farm that is in a coop with the farmer.  However, (B) a registered farm vehicle can be used by the farmer or his immediate family for other reasons: (1) to go to church, (2) to go to school, (3) to get medical supplies, (4) to get medical treatment, and (5) to get household or family necessities.

Non-Registered Farm Use

Of course, the problem isn't really with registered farm use vehicles. The problem is with people avoiding registration altogether by slapping a plastic sign they bought online on their truck and driving it everywhere. Here are the rules for them.

§ 46.2-665 - First, there is no limitation on whom the driver can be, although the owner must be a farmer. Second, it's limited to certain classes of vehicles: (1) pickup trucks, (2) panel trucks, (3) SUV's, (4) those with a gross vehicle weight rating of over 7,500 pounds, (5) trailers, and (6) semi-trailers. While that's pretty broad it does leave out the family car and Uncle Mike's motorcycle at least.

If a vehicle is being used for farm use it can (1) cross a highway, (2) go up to 75 miles to get to another farm tract, (3) go to a repair shop, (4) go to a trash dump, (5) drive up to 75 miles to get farm supplies, and (6) transport a fruit spray vehicle, harvest transport vehicle, or vehicle used to transport unginned cotton, peanuts, or fertilizer owned by the farmer, cotton ginner, peanut buyer, or fertilizer distributor to a repair shop.

There' an interesting addendum to this found in § 46.2-673 which specifies that if no registration is required to go somewhere none can be required for the drive back. Specifically, it states no registration is required while (1) returning from the marketplace, (2) transporting supplies to a farm, or (3) transporting "ordinary and essential" food and products to a farm for use at the farm or home.

Notable Differences

Number three in the last paragraph is interesting because the statute allowing unregistered farm use vehicles,§ 46.2-665, does not allow trips specifically to buy products for home and family. This is presumably a purposeful omission because we know the General Assembly specifically allowed it for registered farm use vehicles in § 46.2-698. What the exception in § 46.2-673 appears to be is a mixed use exception. If the farmer goes to his local Tractor Supply Store, buys farm supplies, and buys some boots or a shirt there he wouldn't need the truck to be registered to drive back to the farm. Stretching it a little, if after he buys farm supplies at the Tractor Supply Store he walks to the Sav-A-Lot grocery next to the Tractor Supply Store (they are side by side in my jurisdiction) and buys that weeks' groceries he shouldn't be in trouble because he's not taken the truck anywhere once it stopped at Tractor Supply. However, if he drives across the street to buy groceries at Food City he's outside allowed use - not because he'll be driving back with supplies for home, but because the drive from the Tractor Supply store across the street to the Food City required registration.

Note also that while the registered farm use vehicle is allowed to take things to a market or point of sale, there is no such allowance for the unregistered farm use vehicle. For example, a registered farm use vehicle could go to the local Farmer's Market while an unregistered one cannot.

Perhaps the biggest difference is one wrought by our General Assembly this year. As of 01 July 2017, if anyone is driving an unregistered farm use vehicle § 46.2-665(C) allows any officer to require the driver to give the address of his farm or, if the driver can't supply the address the real property parcel identification number of the farm (whatever the heck that is). Thus, an officer still needs reasonable suspicion to pull over a registered farm vehicle, but he can pull over an unregistered farm vehicle at any time. I'm pretty sure this change in the law came out of the frustration over the widespread abuse of this exception to registration laws and hopefully it will help to curtail them.

Punishment

Not too much. Under § 46.2-613(6) the punishment is up to $250 the first time caught and a flat $250 fine every time thereafter. 

Other Statutes that Apply

 46.2-664: OK if has equipment “securely attached” which is for spraying fruit

46.2-672: OK if transporting unginned cotton, peanuts, or fertilizer.

46.2-666: OK if transporting livestock within 75 miles to the nearest storage house, packing plant, or market

46.2-670: OK if transportating wood products farm to sawmill – 75 miles

46.2-671: Mine vehicle – 20 miles – from mine to mine or repair shop

46.2-668: Out of State vehicles for harvesting: $150 permit – on driver or displayed –

only 20 miles

46.2-684: Must have lights if used at night

46.2-684.1: If covered by other insurance does not need automobile insurance

Suing Your Boss for Someone Else's Illegal Act

When you take a job doing criminal defense you will work with people who don't follow greater societal norms. Obviously, this can be a problem at times, but it can't be too much of a shock.

Unless you are a female public defender in the Chicago area.

Apparently, a group of prisoners have been making a game of masturbating in front of female PD's and touching them inappropriately (note that I said above they have problems following greater societal norms not those of their fellow inmates). The female PD's are understandably distressed by this. Their solution? They're suing their boss and the sheriff (third parties with collateral involvement instead of the second party bad actor).

Look, I know that a fat, old guy like me doesn't inspire this kind of behavior from inmates. Still, the article indicates that the sheriff has been trying different things trying to stop this. However, as anyone who has worked with inmates will tell you, they have a lot of time to figure out ways around any control you can put on them and some of them are really creative in finding ways to misbehave.

I'm not sure why the head PD is getting sued at all. She doesn't have any control over the inmates and the only thing the article says she did was to object when prisoners were kept in handcuffs as a public defender looking out for her clients ought to.

There's not enough information here to make any kind actual decision, but this seems like the kind of behavior that is extremely hard or impossible for anyone to control. There'll be some finger pointing and fussing, but little can really be accomplished. The PD office isn't going to stop advocating for the liberty interests of defendants just so life will improve for its employees - or at least it shouldn't. The Sheriff doesn't have infinite resources and is trying to handle things in a way that allows him to keep meeting payroll. Will the problem be solved or will this end up settling so that some cosmetic changes occur, the members of the class get 37 cents each, and the law firm filing the suit gets paid its legal fees? Only time will tell, but since the final settlement will most likely be held private there's very little chance we'll ever find out.

Emotional Support Animals

We get calls from service industry owners and managers all the time about animals they believe are fake support animals. It has become common for people to put a little "Service Animal" vest on Fifi and take her into the store or hotel and screech at the poor employee who dares to say anything that he's not allowed to question her service animal. These managers have seen many animals which are clearly providing no service gotten past the rules - usually claimed as an "emotional support animal." As one hotel manager put it to me, "I don't see them providing any service unless you count retrieving the ball their owner throws."

I addressed Virginia's laws in reference to this last year and you'll remember that Virginia specifically disclaims emotional support animals. This year, I'm going to try to lay out the federal laws.¹

Service Animals

Are Not

Emotional Support Animals

There's a difference and it makes a difference. Under the umbrella of the Americans with Disabilities Act, 28 CFR 35.136 (backed more generally by 42 USC 12182) allows service animals, and service miniature ponies, to go pretty much anywhere the person they are serving is allowed to go as long as the animal is (1) under control and (2) housebroken (and not too big for the locale for the miniature horse). 28 CFR 35.104 specifically defines a service animal as (1) a dog that is (2) trained to do work or tasks directly related to the disability. Mostly this applies to dogs meant to help with physical disabilities. However, there is provision for dogs meant to help in psychiatric situations if the dog is trained to prevent or interrupt impulsive or destructive behavior. The definition specifically excludes emotional support animals.

This is the general rule. However, there are two exceptions. The first is found in 49 USC 41705 which has been interpreted to allow emotional support animals on airplanes (because nothing could go wrong there). That's all under the Air Carrier Access Act and if you want further info on that you'll have to look it up yourself because shockingly as a prosecutor in the mountains of Virginia I don't have much reason to research that amazingly stupid idea in depth.

The second exception is government supported housing (e.g. HUD housing and college dorms). In 2013, HUD issued a Notice (FHEO-2013-01) in which it ruled that emotional support animals somehow were required under the Fair Housing Act (banning the consideration of "race, color, religion, sex, familial status, or national origin" in the sale or rental of realty - 42 USC 3604 et al.) and the Rehabilitation Act of 1973 (if money comes from a federal grant or program a person cannot be excluded because of her disability - 29 USC 794). It also noted the ADA, but this Notice was clearly meant to go farther than the ADA allows. As well, it is very clear that the FHA does not apply on its face although I'm sure there's a CFR or court case out there somewhere providing some sort of sophistry to support its use. Still, even without these two Acts, the Rehabilitation Act would seem to apply.

The Notice points out that neither the FHA or Rehab Act require assistance animals to be trained and that neither requires the animal to be a dog. Since neither addresses assistance animals at all, this is true. It then sets out a two part test as to whether the animal is allowed: (1) Does the person have a physical or mental impairment that substantially limits one or more major life activities? (2) Does the person making the request have a disability-related need for an assistance animal? If the answer to both is "yes" then the HUD housing or college dorm must allow the animal unless (3) the animal is a direct threat to health and safety, or (4) it cannot be stopped from causing substantial damage. As part of question 2 above, the Notice makes it clear that emotional support is included in that question.

PROOF

Obviously, all this is just begging for abuse. What steps can be taken to combat it?

For those facing a person claiming that Pepe, their skunk, is an emotional assistance animal and must live in their HUD housing or dorm room. Here, there is room for a significant requirement of proof. Per the Notice above, if the disability is not obvious and/or the need for the animal is not obvious, the person must provide "reliable" (1) proof of the disability and (2) the disability related need for the animal. The "reliable" part is important here because there is a cottage industry of "doctors" online who will give anybody a letter stating they need an animal for fee after they fill out a short online questionnaire. If it isn't from a local doctor who is continuing treatment for your renter then the letter probably isn't worth the paper it's printed on.

Outside of housing situations, there are two questions allowed per 28 CFR 35.136.  If it is not obvious what the dog (or miniature horse) is there for a hotel or shop employee can ask (1) if the animal is a service animal, and (2) what work or task has the animal been trained to perform. Unfortunately, if the person is dishonest and smart enough to give an answer that complies with the physical aid requirements of the CFR you cannot inquire any further. However, if they go for the "emotional support" answer which seems to be the go to answer for most of them you can refuse them entry. And, if you are a place that serves food you may be required to under health and safety laws.
 

CONCLUSION

Hopefully, this combined with the Virginia specific post will give everyone some guidance as to what the rules are for different support animals so that the next time a harried front desk clerk calls in from The Carlyle Hotel (Appalachian Division), you'll have the answer at the tip of your tongue - not that it will keep the customer from pitching a fit over the fact that the hotel is violating her rights by not letting her take her emotional support turkey vulture with her into her room.

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^1. Be advised that federal laws and regulations are Byzantine in the extreme and I am almost guaranteed to have missed something. 

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.

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.

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.

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.

Law Enforcement Practice Tip of the Week

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 ** 

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.  19.2-400.  Third, 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.

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.

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. 19.2-403.  THIS 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 petition.  19.2-402.  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.