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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Two Opinions From the Court of Appeals to Start September

It's not officially fall until September 22, 2023 -- and with post-Labor Day temperatures in the upper 90s in the Star City, I can't argue with that.

The wheels of justice continue to grind, however, and give us two new published opinions from the Court of Appeals. Bryan Temple Smith v. Commonwealth of Virginia is a "kitchen sink" appeal from a DUI 3rd offense within 10 years, which is a felony. Ten days before a 2020 amendment took effect that barred police from stopping vehicles for a missing tag light (the tiny bulb that illuminates your license plate and is habitually burned out on most cares more than a few years old), Mr. Smith had the misfortune of being pulled over for that very offense. Generally, when officers pulled you over for this trivial offense it was for one of two reasons -- either they were having a slow day and wanted to stretch their legs a bit a give you a friendly-ish warning to get it fixed or, and this is far more likely -- they had a hunch that there was something going on with you, but that hunch wasn't enough of a reason to stop you.

Smith's case falls into the latter category (they had received a tip) and the police quickly learned, because Smith volunteered the information, that he "wasn't supposed to be driving" because “he was in rehab due to a previous” DUI. He added that he had consumed "a couple of beers." For those not familiar with "Southern English," a "couple" of anything other than human beings is an indeterminate number that is almost certainly more than 2 but likely not reaching into double digits (which in SE is generally referred to as "more than a few"). In this case, "a couple" turned out to be six "since lunchtime."

After performing poorly on field sobriety tests, police arrested Smith. After eading him the implied consent law, Smith responded, “how do you expect a drunk person to understand all that?” As you can probably guess, Smith was charged with both driving on a revoked license and DUI 3rd, but the Commonwealth let the busted tag light slide.

Despite having furnished police with more than adequate evidence to convict him, Smith gamely tried to avoid the consequence of his folly by claiming that the new law should be treated as retroactive and, thus, all that lovely evidence should be suppressed. The trial court disagreed and the case went to trial.

At trial things started going Smith's way when the Commonwealth was unable to prove the bone fides of the BAL certificate. This is good news in that it meant that the court would not here evidence of the specific concentration of alcohol in Smith's blood and deprived the Commonwealth of an easy "presumptive" proof of intoxication.

We pause not to express sympathy for the many, many new (and not so new) attorneys who, having just succeeded in keeping the BAL certificate out in a DUI case, are in the midst of packing up their papers and receiving the congratulations from their client for a well fought case when the they here the judge say, "Just where do you think you're going?"

You see, the lack of a BAL certificate is not fatal to the Commonwealth's case in a DUI. The certificate only permits to court to make an "inference" that the defendant was blotto. The Commonwealth can still prove the defendant's intoxication by other means, like, for example, his statements against interest that he had consumed six beers "since lunchtime" and was a "drunk person."

The Commonwealth did just that. For some reason, the Commonwealth also called an expert, over Smith's objection, to testify on the effect of alcohol on a person's ability to drive. While this might seem a good idea, I hardly think it was necessary. The Commonwealth also a DMV transcript to show that Smith had been first convicted of DUI in May 2016 and the order of conviction for DUI 2nd in June 2020. In lieu of an order of conviction for the first offense, the Commonwealth submitted a letter from the Henrico County General District Court saying that the order could not be found "at this time."

I mentioned that this was a kitchen sink appeal -- meaning that Smith's counsel tried everything that had failed in the circuit court again on appeal. Starting with the "retroactive" application of the "pretextual stop" amendment, the Court of Appeals, Judge Raphael joined by Judge White and Sr. Judge Petty, agreed with the trial court that the legislation evinced no intent for retroactive application (which is disfavored and therefore must be express in the enactment).

Smith next argues that the Commonwealth should not have been allowed to use the DMV transcript and that its evidence as a whole failed to prove that he had two prior DUI convictions. With respect to the former, Smith argued that the inability to produce the order for that first conviction "rebutted" the DMV transcript. The Court, however, found that the transcript was competent evidence of the conviction and the fact that the clerk could not locate the original order was not proof that no order existed (plus, Smith had told one of the officers that he had two prior convictions).

I am going to say here that while I agree with the Court that there was sufficient evidence to prove the two prior DUIs, had I been the prosecutor, I would not have presented the Clerk's Letter. In fact, had I been the prosecutor I would have moved to amend the charge to DUI 2nd when I learned that the court could not find the conviction order for first DUI. In my view, the Commonwealth doesn't need to play hardball in these cases and I don't like sloppy procedures, even if they are sufficient to pass muster on appeal. Plus, in the digital age, I am shocked that one of the wealthiest counties in Virginia does not easily accessible records from just (at the time) 5 years before.

Smith also challenged the admission of the testimony about his prior convictions and the expert testimony. The Court finds that the former point is moot as the prior convictions were proved by other evidence, where as the latter was a decision committed to the discretion of the trial judge.

Silfredo Castillo Canales v. Commonwealth of Virginia involves two revocation proceedings. Canales had comeback time from a 2017 grand larceny and burglary case when he ran afoul of several conditions of his probation. Now probation violation law has undergone some significant revision in the last few years, and one of those changes requires a court to treat all violations ordinally (sic) as the same level of offense if arsing from the same conduct or if tried in one proceeding under a single violation report. The "sic" is used to indicate that I did mean "ordinally" not "ordinarily." That is, violations are treated as being either a "first," "second," or "third or subsequent."

Canales pointed this aspect of the new law out the trial judge, but he was having none of it, saying that the violation report as “chockablock full of discrete incidents” that should not be treated as one. The court therefore decided that it would hold separate proceedings for each incident by the date identified in the report. When the first of the hearings was held that Commonwealth said something along the lines of "Ummm, Judge, not that I don't want to see Canales get what's coming to him, I do think that maybe he has apoint about the new law." That's my kind of Commonwealth's Attorney! I bet he would have reduced Smith's charge to DUI 2nd.

The judge, however, insisted that each of the incidents reported could be treated as a separate violation of each of the suspended sentences. Thus, in quick succession on two separate days, the court entered an total of six orders in which it, somewhat surprisingly, required Canales to serve only 14 days on each violation -- I say surprisingly because under the method used by the court, Canales could have been given all the comeback time. My guess is that he had already served most of the 84 days at the time the sentences were imposed -- maybe all of it.

As you have probably already guesses, the Court of Appeals, Sr. Judge Clements joined by Judges Athey and Otriz, has to do some mental gymnastics to sort out whether the court could decide to try the violations separately (Yes, it could) and if it could, did that allow it treat each violation as being part of a separate course of conduct (No, it couldn't). Judge Clements does an admirable job of explaining this result, but the short version is that while the court cannot be barred from holding separate hearings for each alleged violation, it cannot use that process to do an end run around the requirement that violations that are part of the same course of conduct are to be treated as all one and the same. here there were two "courses of conduct" (failure to follow a probation officer's instructions and using illegal drugs) with three violations each. No matter how many hearings the court held, it had to treat the two "courses" as one "violation" each. This meant that the court should have imposed no more than 14 days of the suspended sentence.

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