The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Tag Archives: Virginia

Virginia Supreme Court Opinion Creates Unintended Incentive to Drive Drunk

Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.

In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI.  In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266.  Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year.  On March 2nd, that response finally arrived.  Unfortunately, it was not exactly the response I was looking for.  Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012.  In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.

In Enriquez,  the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside.  Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there.  Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.

While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision.  Following previous cases, the Supreme Court engaged in an analysis  that focussed on whether a key was in a particular position in the ignition.  Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways.  In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park.  In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.

Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while  being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road.  There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe.  As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home.  Frankly, that is the last thing I want:  implicit encouragement to drunk drivers to stay on the road.  Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle.  Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.

I understand that drunk driving is a hot political button.  Every officer in the state makes a DUI inquiry during every traffic stop.  However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road.   Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired.   Conviction for sleeping on the side of the road is a no demerit point offense.  The General Assembly has recognized that it wants tired drivers to get off the road.  It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink.  That driver needs to be off the road.  Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps.   Faced with that outcome, many a drunk driver will take the chance of getting home.  And, more people will be in accidents and more people will die.  It is the law of unintended consequences.

Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation.  I am not holding my breath.

Virginia DUI Law: The Penalties for A DUI Conviction

As one of the most frequently charged offenses in the Commonwealth of Virginia, driving under the influence (DUI) is a very serious offense.  Since it is a class one misdemeanor, the Court may sentence a person found guilty of DUI to a variety of penalties, depending on the number of subsequent offenses and the amount of intoxication:

First Offense

  • Jail of up to 12 months
    • If BAC is .15 or greater, there is a mandatory jail sentence of 5 days
    • If BAC is more than .20, there is a mandatory jail sentence of 10 days
  • Fine between $250 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in the Virginia Alcohol Safety Action Program (“ASAP”) as well as attendance at Victim Impact Panel
  • A loss of license for one year is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (within 5 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 20 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of and additional 10 days
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (between 5 and 10 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 10 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of an additional 10 days.
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days.
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required.
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Third Offense in a 10 year period

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
    • Mandatory jail term of 90 days. (180 day mandatory jail term if all three offenses committed in a 5 year period).
  • Loss of license indefinitely
  • Court fine of $500-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Fourth Offense within 10 years

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
  • Mandatory jail term of 12 months.
  • Loss of license indefinitely
  • Court fine of $1,000-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Offense by Person under Age 21 (BAC of .02-less than .08)

  • Loss of license for six months.
  • Fine of not more than $500 plus court costs.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.  Nevertheless, the severity of these consequences often necessitates proper legal representation.  If you find yourself facing a DUI charge,  it is well within your best interest to spend some time researching competent attorneys in your area.  As always, feel free to contact Westlake Legal for a free consultation.


Virginia DUI Law: The Effect of a DUI On Insurance and License

Q: What does a conviction for DUI do to my insurance and license? 

A:  One of the most frequent requests I receive from Traffic/DUI clients is to negotiate for fewer points on their driving record if they are found guilty.  In fact, fearing skyrocketing insurance payments, many clients offer to plea to a lesser offense in exchange for reduced points.   Unfortunately, points on a driving records are not assessed by the Court, so neither of these options are possible.  Points are assessed by the DMV, and depending or one’s driving record, a conviction for DUI could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of DUI will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction. A 2004 study concluded that a DUI conviction costs up to $20,000 over the life of a convicted defendant in the form of increased insurance premiums and other fees.

When faced with the possibility of such a substantial financial burden, many people find the idea of hiring an attorney who will aggressively defend their rights much more appealing.  Should you ever find yourself in need of such services, please feel free to contact Westlake Legal Group to schedule a consultation.

Virginia Divorce Law: How Child Support is Determined

A popular question asked during divorce matters is “How is child support determined?”  Since the answer to this question is often very important, not only for the parties involved in the divorce but for their children as well, it is important to understand the process of child support determination prior to filing for divorce.

As a matter of principle, every parent has a duty to support their children.  To this end,both parties are responsible for child support and support is initially determined by application of Virginia Code § 20-108.2, the state guidelines for child support. Each parent is expected to pay a pro rata (proportional) share of the child support which is calculated based on the gross incomes of the parents, the costs of daycare, cost of health insurance, and costs of extraordinary medical expenses. Courts can deviate from the guidelines after first determining the guideline amount and making a determination of a need for deviation in order to correct what is perceived as a manifest injustice.

Virginia Code Section 20-108.1 allows for deviation from the guidelines based on the following factors:

1. Actual monetary support for other children or family members;

2. Arrangements regarding custody of children;

3. Imputed income to a party who is voluntarily unemployed or voluntarily underemployed except income may not be imputed to custodial parent when child is not in school, child care services are not available and the cost of such child care services are not included in the calculation;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Debts incurred for the production of income;

6. Direct payments ordered by the court for health care coverage;

7. Extraordinary capital gains;

8. Age, physical and mental condition of the child;

9. Independent financial resources of the child;

10. Standard of living established during the marriage;

11. Earning capacity, obligations and needs, and financial resources of each parent;

12. Education and training of the parties;

13. Contributions (non-monetary and monetary) to the well-being of the family;

14. Provisions with regard to marital property;

15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

16. Written agreement between the parties as to amount of child support;

17. Agreed pendente lite decree (temporary support); and

18. Other relevant factors.

Child support is owed to any unemancipated child who is a full time high school student who has not reached the age of 19. Support is not awardable beyond the child’s 18th birthday or high school graduation, whichever is later. Further, parents cannot be forced to pay for college expenses unless agreed to in writing by the parties.

Wrongfully Accused: VA Drivers Convicted of Charge That Is Not A Crime

In a turn of events that is particularly embarrassing for the Commonwealth, it has recently been reported that a number of Virginia localities have been ticketing, convicting, and fining motorists for a charge that, though alleged to be illegal, does not actually violate Virginia law.

In this instance, the law in question is Virginia Code § 46.2-707, titled “Operating uninsured motor vehicle without payment of fee; verification of insurance; false evidence of insurance.”  As its title suggests, this code makes it unlawful to operate an uninsured motor vehicle without having paid the $500 uninsured motorist fee that is required of those who chose not to purchase auto insurance.  The statute also prohibits anyone operating an uninsured vehicle from either providing false insurance information or from failing to provide proof that they have paid the uninsured motorist fee.   A conviction under this statute amounts to a Class 3 misdemeanor, the punishment for which is a $500 fine and the immediate suspension of one’s license.  Additionally,  a conviction for providing false insurance information when driving an uninsured car is labeled a “crime of moral turpitude” and can adversely affect future employment and military service.

What is particularly important about this statute–and what a surprisingly large number of police officers, prosecutors, and judges state-wide seemed to have missed–is that it only applies to drivers who are operating uninsured vehicles.  Therefore, in order to properly be charged under this statute, a driver would have to admit that his/her car was uninsured and that he/she failed to pay the uninsured motorist fee.  There is no crime if a driver does not have their insurance card on them or simply can not find it, or if they never make the above admissions.

Perhaps the most disturbing aspect of this new revelation though is not the fact that a few police agencies (4 counties worth to be exact) misinterpreted the statute and handed out illegal tickets.  As shocking and ultimately disappointing as this is, the issue that is of most concern to me is the fact that more than a few defense attorneys, prosecutors, and judges in the Commonwealth were complicit in the mistake.  The discovery that this charge has been wrongfully levied time and again without being properly challenged in court suggests a much larger issue with the justice system here in the Commonwealth.  While it might be conceivable to forgive such an error on the part of VA state troopers (thought I would not normally advocate such a move), to be equally as lenient with lawyers in the prosecutors offices or with the judges involved is inappropriate.  Just as I am charged with providing my clients with the best defense under the law, these men and women have taken an oath to uphold the laws of our country and to pursue the ends of justices at all times.  To think that a mistake as widespread and costly as this could be made on a routine basis is both extremely disappointing and terribly frustrating.  Going forward, I hope cases like this will both galvanize the Commonwealth to rectify its mistakes and prompt more citizens to educate themselves as to their basic rights.  In doing so, citizens and public servants alike will help to ensure that gross misinterpretations of law such as this do not reoccur.