Other New Laws

Restricted driving privilege for out-of-state drivers. Provides that when the driver of any motor vehicle not licensed to drive in Virginia, but who has a valid driver's license from another jurisdiction, is convicted of any violation for which license suspension and issuance of a restricted license is authorized, the court may issue a restricted driving privilege in Virginia upon the same conditions as if the person held a valid Virginia license.

Appeal bonds; unlawful detainer; indigents. Adds unlawful detainer cases to the list of actions for which an indigent must post an appeal bond.

Adult students under the jurisdiction of the juvenile and domestic relations district court; notification to schools. Clarifies that notification is to be given to the superintendents of school divisions when students who are 18 years of age or older are charged with certain crimes and are subject to the jurisdiction of the juvenile and domestic relations district court. The bill makes a similar change for providing notification when such students are committed to a Department of Juvenile Justice facility.

Appeal of bail decision by attorney for the Commonwealth. Provides that if a judicial officer (including a magistrate) grants bail to an accused that is deemed inadequate or unreasonable by the attorney for the Commonwealth, the attorney for the Commonwealth may appeal to the court in which the case is pending when bail was granted by a magistrate or, when granted by a court, to the next higher court. Current law limits such appeals to appeals of a court decision only, and only upon objection in court by the attorney for the Commonwealth.

Foster care; plan to reduce. Requires the Governor and the General Assembly to develop and implement a plan to reduce the number of children in foster care by 25 percent within 10 years.

Impoundment of vehicle for driving while license suspended. Includes a violation of 18.2-272 (Class 1 misdemeanor to drive on a suspended license when suspended for driving for DUI or a DUI-related crime) in the section of the code ( 46.2-301) that provides that a motor vehicle impounded or immobilized by the police following an arrest for driving on a suspended license, when suspended for DUI or a DUI-related crime, may be impounded or immobilized for an additional 90 days by the court upon conviction of that offense.

Consecutive license suspensions for DUI. Provides that any suspension of driving privilege for driving while intoxicated shall run consecutively with any other court-ordered period of suspension. Currently, such suspensions for DUI run from the date of the court order, except in the case of suspensions ordered for failure to submit to a blood or breath test, which run consecutively with the DUI suspension.

Highway speed limits. Increases the general highway speed limit on highways where it is presently 65 mph to 70 mph.

Punishment of a juvenile for possession, etc., of alcohol. Provides that a juvenile charged with possession, consumption, etc., of alcohol may be found delinquent of such a charge and punished, or have his case deferred and upon completion of the terms and conditions of his probation, have his case dismissed by the juvenile and domestic relations district court. Current law provides that the case shall be deferred and shall be dismissed upon completion of terms and conditions.

Courts not of record; delinquent children; loss of driving privileges for alcohol, firearm, and drug offenses; truancy. Eliminates the authority of the court to give a restricted driver's permit, for travel to and from school, to a child who has lost his driving privilege for an alcohol, firearm, or drug offense, or truancy.

Prohibition on wearing a mask; public emergency exception. Adds to the existing exemptions in the section making it a Class 6 felony for a person over the age of 16 to wear a mask in public or on private property without the owner's written consent an exception when the Governor has declared a disaster or state of emergency in response to a public health emergency.

Concealed handgun permit applications; right to ore tenus hearing. Clarifies that a person who is applying for a concealed handgun permit for the first time has the same right to an ore tenus hearing if the permit is denied as a person who has previously held a concealed handgun permit.

Human infant; independent and separate existence. Provides that for the purposes of homicide and child abuse, a human infant who has been born alive and is fully brought forth from the mother has achieved an independent and separate existence, regardless of whether the umbilical cord has been cut or the placenta detached.

Entrustment agreements. Clarifies requirements for a valid entrustment agreement terminating parental rights to a child and authorizing a local board of social services or licensed child-placing agency to consent to the adoption of a child, and clarifies the requirement for counseling of birth parents, to include the provision of oral and written explanation of the adoption process, legal effects of adoption, and alternatives to adoption.

New Stuff for 2010

This is by no means all encompassing for our General Assembly were busy when they all converged on Richmond in January. These are a few of the new laws that you can prepare for in 2010.

Now, with the new Va. Code 19.2-130.1, should a judge issue a capias and order an accused held without bond, a magistrate cannot give that accused a bond when he is arrested.

Va. Code 19.2-386.16(B) will be changed so that if you abduct someone or pander a juvenile prostitute you lose your car. Thank goodness because this will really have a big affect on those pedophiles.

So, if you're a homeless guy living under the Manchester Bridge, for example, and you are required to register as a sex offender, you will now have to provide to big brother the location of your washing machine box. This is the new Va. Code 9.1-903(J).

My personal favorite is the new Va. Code 18.2-308. Thank goodness you will be able to take your concealed weapon into the bar with you, but if you have your hidden gun that no one knows about and drink, you will have committed a class 2 misdemeanor.
Another segment of Va. Code 18.2-308, which is the amendment that makes it my favorite, is that a person may now carry a concealed firearm in a car if it is locked in a compartment or a container.

With the exception of cops, Va. Code 46.2-857 now defines reckless driving as two motorcycles to ride side by side in one lane.

Check your buddy's license because you will have committed a class 1 misdemeanor if you allow your unlicensed buddy to drive your car with Va. Code 46.2-301.1.

This gets the FABULOUS award. Va. Code 19.2-73(B) will now allow a cop with probable cause that a driver has driven under the influence within three hours can legally arrest the driver even if he did not see the driving.

Super Sensory Speed Perception Leads to Conviction

Usually, the government has to show that the device used to determine a driver's speed is properly calibrated before the results of the speed detection device may be entered. In Ohio, however, state troopers are trained to develop super senses to determine speed of vehicles by merely looking at the vehicle...and this can lead to a conviction.
So here's my question...if the the officer testified that, based on his training and experience, he had estimated that the suspect's vehicle was
traveling 70 miles per hour. The radar results that were not admitted say the vehicle is traveling at 82 miles per hour. The ticket is for driving 79 miles per hour in a 60 mph zone. If the radar results were tossed, and the court finds that the officer is somehow equipped with super sensory speed perception, why isn't the ticket for 70 in a 60 zone?

You Can't Hide From Child Support

There's one or two truths in this world. One is that you will eventually die. The other is that you will never, ever get out of paying your child support. Not paying your child support can lead to jail, loss of your driver's license, and/or maybe loss of your professional license. It will continue to accrue while you are in jail and you will have interest to pay when you do not pay your support timely. In some cases, the only way to get yourself out of jail is to pay a purge bond, which may be the amount of child support you owe.

Here Cocaine, There Cocaine, Everywhere Cocaine...

Beware all ye who carry cash. More sensitive testing could very well find us all afoul of the law.

Where's the End of Governmental Power?

The federal government used Gitmo to shield itself from claims of detaining people without cause. This notion got shot down by the Supreme Court when the federal government was told it cannot detain people without allowing them to challenge their detention. Now, we have a new administration that continues the abuses.

Bum Equipment Means Bum Convictions

Washington DC has a problem with its breath machines. For those who are unfamiliar with what breath machines do, when you are suspected of driving under the influence of alcohol, your breath may be tested by a breath test machine that allegedly determines the level of alcohol in your breath. Through some further machine functions, the level of alcohol in your breath estimates the level of alcohol in your blood. When the machine is not calibrated correctly, the readings are off and people get convicted based on the wrongly calibrated machine reading. This is what happened in Washington DC.

What Do You Do?

You have the right to remain silent, to consult with an attorney, and to be free from unreasonable searches and seizures by law enforcement. These are you constitutional rights that you have every right to assert when you have an encounter with law enforcement.

First and foremost, remain polite and calm. Provide your identification, car registration, and proof of insurance. Politely refuse to answer further questions. Perhaps most importantly, do not consent to any search of your person, your property, your residence or your car. Do not answer any questions about whether or not you own any property. Remember, if you are not under arrest, you do have the right to leave.

State clearly, calmly, and politely that you:

Refuse to waive your right to remain silent.
Refuse to waive your right to an attorney.
Refuse to waive your right to be free from unreasonable searches and seizures.

Virginia's Assault and Battery Statute Doesn't Fit Under U.S. Gun Law

The issue to be decided in this case is whether the "use . . .of physical force," as that term is used in § 921(a)(33)(A)(ii), is an element of the criminal offense of assault and battery under Virginia law. "Physical force" is not defined in § 921 or any other relevant federal statute.
"The phrase ‘physical force’ means violent force that is, force capable of causing physical pain or injury to another person." Johnson, 130 S. Ct. at 1271. In doing so, it is clear that "physical force," so defined, is not an element of assault and battery under the well-established law of Virginia. See cases cited supra at 6-8. Therefore, White’s conviction under VA CODE ANN. § 18.2-57.2 is not, on its face, a "misdemeanor crime of domestic violence" under § 922(g)(9) because the Virginia statute is not an "offense that . . . has, as an element, the use or attempted use of physical force."

Racism and Jury Selection

"[T]he practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked."

So...How Do You Defend A Guilty Person?

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. United States vs. Wade, 388 U.S. 218 (1967).

Roadblocks and Checkpoints: So Much For Free Passage.

A person's reasonable expectation of privacy is not subject to arbitrary invasion solely at the unfettered discretion of the police. How many people know what this means? How many people know that when you are stopped at a roadblock or checkpoint, the police teeter dangerously on this edge?

The Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. In Wilson v. Commonwealth, 29 Va. App. 63 (1999), the Court of Appeals agreed that stopping a car and detaining the driver at a roadblock or a checkpoint is a seizure within the meaning of the Fourth Amendment.

To determine whether or not a checkpoint is constitutionally valid, the court applied the balancing test established in Brown. The Brown test involves the weighing three criteria: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with the individual liberty. The court stated the Commonwealth must present some evidence establishing the method employed will be an effective tool for addressing the public concern involved.

In Lowe v. Commonwealth, 230 Va. 346, 337 S.E. 2d 273 (1985), an arrest was made at a checkpoint conducted pursuant to a checkpoint plan. Analyzing the plan on the criteria set forth in Brown, the Supreme Court held: "Balancing the state’s strong interest in protecting the public from the grave risk presented by drunk drivers, against the minimal inconvenience caused motorists approaching the roadblock, we hold that the action of police in this case was not an impermissible infringement upon defendant’s reasonable expectation of privacy."

In Simmons v. Commonwealth, 238 Va. 200, 380 S.E. 2d 656 (1989), the Virginia Supreme Court considered a license and registration checkpoint established and conducted by a couple of troopers on their own initiative. The troopers stopped and inspected every vehicle passing through the checkpoint. This checkpoint was deemed unconstitutional. The Court demanded that that checkpoints, if they are to be undertaken, must be done pursuant to an explicit plan or practice which uses neutral criteria and limits the discretion of officers conducting the roadblock.

In Wilson, the court held where no evidence that a security checkpoint at the entrance to an apartment complex addressed concern about drug dealing or even that there existed empirical evidence that there was such a problem the roadblock stop at the defendant’s vehicle was held to be unconstitutional.