How the Appellate Court Tells the Legislature that It Did Something Dumb

 The highlight of this week's new opinions from the Virginia Court of Appeals is Barrow v. Commonwealth, AUG24, VaApp no. 0769-23-1. In a technical decision having to do with how long a suspended sentence can be held over a probationer's head, the Court had to address a change in the law which limited a trial court's ability to resuspend the suspended sentence beyond a date certain in a probation violation hearing. The difficulty is that this creates a soft directive from the General Assembly for judges in probation violation hearings to give the entire suspended sentence. If the trial judge cannot keep time over the person's head after she serves a chunk of it, the trial judge doesn't have the probation tool and since probation is given in lieu of incarceration the judge should in theory impose all the time hanging over the violator's head. While that is unlikely to happen in reality it is a heck of a reason for the judge to give a more significant punishment to an unreformed probationer for whom the trial court can take no further steps in an attempt to put them on the straight and narrow. That's how you get footnotes like this:

We acknowledge that our holding today has the potential to create a “use-it-or-lose-it” incentive for future trial courts in similar positions. For instance, in a scenario wherein the trial court judge may feel that a defendant deserves some, but not all, of his or her active time and would prefer to suspend the remainder of the original sentence, future trial courts might still opt to impose the full balance of the remaining sentence, given that the period of suspension would be extinguished after the offender’s release (as in this case). This is, of course, a policy decision the General Assembly has spoken on, and it is not the role of the judiciary to question the wisdom of the legislature. Instead, we simply interpret and apply the law as written.

For those of you who don't know how Virginian judges come into office, they are solely chosen and continue to serve at the unfettered discretion of the General Assembly. They don't often tell the General Assembly that it screwed up anything. This is as close as I've seen them come to telling the GA that it did something stupid in a loooooonnng time.

Farm Use License Plates

 Farm use tags were an idea born out of good intentions. A farmer could use a vehicle dedicated to his farm to transport things along a road from one lot of his land to another without having to get official tags, inspections, etc.. Of course, the exception grew allowing farmers to go to market, church, etc. That might have been pushing the outer edges a little, but generally if it was limited to farmers using the vehicle occasionally it would have been fine. Of course, that's not how things worked out.

Farm use tags were among the most abused thing on the street. As I can personally attest, all sorts of people threw them on all sorts of vehicles that had never been within shouting distance of a farm. I saw trucks and SUV's parked at people's houses in towns with the tags on them. It was so bad that the standing joke was that there are two types of vehicles with farm use tags, one which was held together by bailing wire and a prayer and another that was so shiny new it hurt to look at it. Neither had seen a farm. People just didn't want to (or couldn't) get their vehicle inspected or didn't want to register the vehicle and pay taxes. I know there were actual farmers using farm tags, but I'm not sure any vehicle I saw with farm tags was one of them.

2017

Of course, the General Assembly started trying to fix this in the patchwork fashion that it usually does. In 2017, it made misuse of farm tags subject to a $250 fine [§ 46.2-613(6)(now gone)] and allowed police to ask the driver of the vehicle the address of the farm or the "real property parcel identification number" of the property [§ 46.2-665(C)(now gone)]. Shocking absolutely no one, this did not work. Still, the General Assembly left things static until 2022.

2022

In 2022, the General Assembly did away with the plastic red and white farm use tags you could buy at every gas station in the Commonwealth and required everyone to get the DMV issued, white and blue farm use tags:

However, they also punted to make the change not go into effect until 01 July 2023. This would stop a lot of the silliness. For a $15 fee, the owner gets a permanent farm use tag after showing he actually had a farm and insurance. Things looked up. The plastic plates started disappearing from stores and it seemed the days of watching a brand new "farm use" F-150 blow by me on the highway were numbered.

2023

Rather than letting the law go into effect, the General Assembly bumped back the date of its enforcement to 01 July 2024. It also slipped in an exception for to the DMV plate for "vehicles having a gross vehicle weight rating [gvwr] greater than 7,500 pounds, trailers, or semitrailers used exclusively" for various specific uses. § 46.2-684.2(B). 

2024

Finally, the law goes into effect. Immediately, all sorts of questions pop up as to what vehicles are exempt under the exception put in place in 2023. So, here's the best I can figure:

Trucks: When I first heard the 7,500 pound number, I did some research and found that the only street truck at that weight is the Ford F450 Super Duty Crew Cab (an 8,600 pound behemoth). Then, I had someone explain to me that "gross vehicle weight rating" means weight capacity fully loaded. Researching that, I found that my poor Toyota Tacoma doesn't qualify (nor any other Toyota), but it seems like a number of Dodge, Ford, and Chevys do.

Vehicles That Qualify

Ram	. . . . .	Ford	. . . . .	Chevy
RAM 1500 TRX		F-150 5.0L V8		Silverado 2500 HD
Ram 2500		F-150 3.5L EcoBoost V6		Silverado 3500 HD
Ram 3500		F-250
		F-350

RAM: The Ram 1500 TRX is the only Ram 1500 above 7,500 gvwr (there seem to be multiple lesser 1500 models). 

FORD:  Only the very heaviest single model of the V8 and the EcoBoost are above 7,500 gvwr. Each has at least 4 other models that are not.

Vehicle Uses

Assuming someone has bought one of those monsters, the statute limits their use to the following circumstances:

GENERAL:  (1) Cross a highway, (2) Go from one plot of farm land to another, (3) Go to mechanic, (4) Take another vehicle to mechanic, (5) Go to trash dump, & (6) Transport farmer between farm and home. § 46.2-665.

TRANSPORT GOODS:  Take produce or livestock to "storage house, packing plant, or market." § 46.2-666.

 WOOD:  Take wood to a "sawmill or sawmill site." § 46.2-670.

 COTTON, PEANUTS, FERTILIZER: Take "unginned cotton, peanuts, or fertilizer" to or from "one farm to another, from farm to gin, from farm to dryer, from farm to market, or from fertilizer distributor to farm and on return to the distributor." § 46.2-672.

RETURN TO FARM:  (1) Return to farm from market, (2) Bring back food or general shopping products while out for legit purposes (see above), & (3) Transport supplies to the farm.  § 46.2-673.

Probable Cause

Probable cause would seem to attach to any vehicle with a moniker less than 2500 (250 for Ford) because while there are a very few, very specific models below that which qualify the probability is that they do not. As this sort of thing would be difficult to determine on the side of the road, it would probably be an affirmative defense as well: "I know there are a hundred Ram 1500 models that don't qualify, but mine does because I specifically bought the only model that does."

It should be pretty easy for an officer to determine if a farm use vehicle is engaging in most of the activities above. If a plastic farm use tag is on a vehicle that is at the movie theater or has been driven to the second job in the city, it will be fairly obvious. A vehicle at the grocery store or fast food joint might not be so obvious; they could be grabbing some things on their way back to the farm from a legitimate trip (understanding this is a grab and go situation - not an eat in).

Conclusion

 I think the cost of the mega-pickups that continue to be exempt from the required DMV farm use tag will drastically cut down the abuse of this area of the law. If you're buying a Ram 3500 you are probably using it for real work - not just as a vehicle you are trying to get out of legally registering as you drive around town. Do I think they should have made no vehicles exempt? Sure. Still, 80% of a loaf is better than no loaf at all and if I see a mega-pickup with mud on it I'm more likely to believe it's an actual work vehicle.

Driver's License for Foreign Citizens

Does a citizen of another country need to have a Virginia License?

Under § 46.2-308, a new resident of Virginia has a six (6) month window within which she is required to get a Virginian license.If she doesn't she can be charged with driving without a license (§ 46.2-300) and face up to twelve (12) months in jail. But, of course, not everybody who drives into Virginia intends to stay here permanently. In my part of the Commonwealth it is rather common for people from Tennessee or Kentucky to drive thru Virginia to get to the other state. People also come into Virginia for vacations or to shop or for myriad other non-permanent reasons. What happens then? Does every Kentuckian who is driving thru Wise and Scott Counties in Virginia in order to get to Kingsport, Tennessee get charged with no Virginia driver's license? 

Of course not. § 46.2-307(A) allows nonresidents to drive in Virginia:

A nonresident over the age of sixteen years and three months who has been duly licensed as a driver under a law requiring the licensing of drivers in his home . . . country and who has in his immediate possession a driver's license issued to him in his . . . country shall be permitted, without a Virginia license, to drive a motor vehicle on the highways of the Commonwealth.

Strangely, after this blanket allowance subsections B & C repeat the exception for those from another country. B states that there can be an agreement between the Commissioner and foreign countries allowing reciprocal recognition of each others' licenses for non-residents. C simply seems to be a restatement of A's requirement be "duly licensed as a driver under a law requiring the licensing of drivers in his home . . . country" except it's a little more long winded about it. 

So, nonresidents can drive around Virginia with their foreign licenses as long as they remain nonresidents. And, that's where things get a little interesting, because Virginia was kind enough to define nonresident for us in § 46.2-100 which states a  "nonresident" is defined as "every person who is not domiciled in the Commonwealth, except: . . . 

(ii) a person who becomes engaged in a gainful occupation in the Commonwealth for a period exceeding 60 days shall be a resident for the purposes of this title except for the purposes of Chapter 3 [punishment for non-commercial licensing offenses]; (iii) a person other than . . . (b) a person who is serving a full-time church service or proselyting mission of not more than 36 months and who is not gainfully employed, who has actually resided in the Commonwealth for a period of six months, whether employed or not, or who has registered a motor vehicle, listing an address in the Commonwealth in the application for registration, shall be deemed a resident for the purposes of this title, except for the purposes of the Virginia Commercial Driver's License Act.

Subsection (ii) is strange in that it makes the gainfully employed foreigner a resident at sixty days for traffic enforcement purposes BUT then immediately defangs itself by exempting the now foreign resident from enforcement. This pushes us into subsection (iii) which is poorly written. It is a set of persons excepted from being a nonresident (a person) but immediately sets out exceptions to the exception (see the gray section above). The problem is that the statute does not clearly delineate where the second exception to the exception ends. A natural first reading could lead a reader to just keep adding each subsequent clause to the last exception to the exception. However, this falls apart pretty quickly remembering that this is actually describing an exception and therefore it has to be a positive description of someone who fits within the set. With that in mind, the logical place to end the exception to the exception is at the first comma after (b) because the clause immediately following it sets out who is in the exception to the nonresident set: those who have resided in Virginia for longer than six (6) months or registered a car in Virginia. 

All of which is a long winded way of saying whether you intend to reside in Virginia or not you need to get a Virginia driver's license before six (6) months if you move into the state and don't leave.

As a practical matter, the claim that a foreigner is a nonresident would have to be an affirmative defense. There is no way in the world that an LEO on the side of the road is going to know whether someone driving in Virginia with a license from the Republic of Erehwon has been here less than six months. He's going to charge her with driving without a license and that is going to have to be hashed out in court.¹

 

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

 ¹ Yes, I realize the same analysis could apply to those licensed from other States. It would be nice if there were a written presumption that a holder of a state license is legitimate, but I've not found it in the statutes. However, I think that most LEO's in the real world already treat out of state license holders as legitimate unless given cause to believe otherwise (it happens). Additionally, I think that most out of state license holders will have things like registration of the vehicle from the other state and/or insurance indicating residence in another state - not always, but most times.

Favorite Quote of the Year (So Far)

 "Rule 1:1 does not require incantation; it requires specificity."

 Rule 1.1 of the Supreme Court of Virginia is that the Final Order of a trial is final after 21 days. And we mean final. We really mean it. For real. 

In Russell v. Commonwealth, DEC24, VaApp no. 0822-22-2, the trial court entered a Final Order and within 21 days it entered a stay of execution. The Court of Appeals said that's about when the sentence starts being served, not whether the sentence is final. The trial court did not state it was maintaining jurisdiction over the imposition of the sentence within 21 days so it stands. Appellant's attorney accused the Court of Appeals of requiring "magic words." The Court of Appeals took umbrage.

 What's up with "magic words" anyway? Aren't we supposed to be lawyers with slightly elevated linguistic abilities? Has everyone forgotten the word 'pedantic?' Time to up your game guys.