03 March 2020

Virginia's Strangest CrimLaw Opinion ot the Year: Dicta Wars

Every year I break down the crimlaw cases which have been decided by the Virginian Courts Appellate from March last year to March this year for a CLE I do for the local bar (and later I put them up at KenLammers.com for common use). There always seems to be at least one head scratcher and this year is no exception.

Last year I summarized the Court of Appeals decision in Butcher v. Commonwealth as:
Butcher v. Commonwealth, NOV18, VaApp no. 0974-16-2: (1) A person who runs into another’s vehicle is required to give his information to one of several individuals. (2) The court explains that because the language of the statute has changed the person does not have to report to both the victim and police, he can report to either; Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256 (1976) was invalidated when the General Assembly changed the language of the statute. (3) Absent this or another similar circumstance that makes an immediate report impossible or wholly impractical, the statutory command that the report be made “forthwith” requires an immediate report. (4) Absent even a suggestion to the contrary, the factfinder reasonably can infer that, if appellant made a call to law enforcement to report his information, the information would have been provided to the investigating officer. (5) Hit ex-girlfriend’s car.
I remembered this case as the one where the guy ran his car into that of someone who knew who he was and got charged for hit and run anyway because he didn't stop and give his information to someone who knew who he was. The Supreme Court of Virginia sees it differently and here's my breakdown of the Supreme Court's opinion:
Butcher v. Commonwealth, FEB20, VaSCt no. 181608: (1) Overrules the Court of Appeals’ plain reading of the statute that the addition of “or” in place of “and” made the parties to who report of the accident went to subjunctive instead of conjunctive. [why?]
Mind you, the Supreme Court upheld the conviction - it just didn't like the fact that the Court of Appeals had pointed out that it had been legislatively overruled and went out of its way to slap down what was pretty clearly dicta in the Court of Appeals opinion. Baker is guilty of violating the statute under either interpretation; he didn't give his information anybody whether he was required to give it to either the owner or police or both of them. If you want to get technical about it, the decision in each court's opinion is that he's guilty. Everything after that is dicta in both opinions. Et viola, we have dicta slapping down dicta and the rest of us are left scratching our heads about the whole thing.

Somebody's either waaaaaay oversensitive about their court's prerogatives or they let their law clerk, all fresh and shiny out of law school and fired up to quibble about [very important] legal niceties, write their opinion.

I've not done a deep dive into the legislative history or the developed caselaw, but on its face it appears that the Court of Appeals has it right. The pertinent language from the statute requires a driver in an accident to give his information
(a) to the State Police or local law-enforcement agency,  (b) to the person struck and injured if such person appears to be capable of understanding and retaining the information, OR  (c) to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property.
I added the letters and all-capped the or, but if you want to do the analysis yourself look where the commas are separating the sentence fragments and note that the connector between the fragments is "or" (a subjunctive not a conjunctive). 

In summary, the Court of Appeals was right, the Supreme Court's dicta overruling the Court of Appeals dicta is a slapdown but doesn't change anything because the General Assembly made this change years back, and the rest of us are reading these opinions and wonderinging to ourselves "What the bleep are they doing up there in Richmond?"

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