Criminal/Traffic/DUI Law

CASE SPOTLIGHT

Culpability for Child Neglect

-- A mother who had left her two small children alone, asleep in their apartment for about 15 minutes, while a fire, probably caused by her negligence broke out severely injuring the children was convicted of willful abuse and neglect of the children ( Va. Code 18.2-371.1) and of cruelty to them (Va. Code 40.1-103) by the Circuit Court of Chesterfield County, Virginia. The Virginia Court of Appeals held that the evidence failed to establish that the mother had willfully neglected the children nor had it established that she was "criminally negligent" as the statutes required. The Court reversed and dismissed the cases against her. Ellis vs. Commonwealth. 29 Va. App. S-54 (Record No. 0148-98-2, Apr. 20, 1999)

CASES OF INTEREST

DUI: Inability to Perform Breath Test

-- An Arlington County driver arrested for a DU was offered a breath test but claimed he was unable to perform the test due to his chronic asthma. He, also, claimed that police failed then to offer him a blood test. At trial the Court refused to allow him to present evidence on his inability to take the test and the refusal to provide a blood test. The Virginia Court of Appeals reversed and remanded the case for a new trial. It held that the recent change in the law which took the choice of blood or breath test away from drivers (Va. Code 18.2-268.2) made a claim of physical inability to take a breath test relevant and material, and put the burden of going forward with such evidence on the defendant. Thus the evidence should have been permitted by the trial court. In addition, the court instructed that if the Defendant also demonstrated that the police failed to offer a blood test when he was physically unable to perform a breath test, the law required a dismissal of the charges against him because the statute required the police to do so. The failure to do so was a denial of his constitutional right to call for evidence on his own behalf. Lamay vs. Commonwealth, 29 Va. App. S-52 (Record No. 2965-97-4, Apr. 13, 1999)

DUI: Crossing State Line Does Not Invalidate Arrest

-- A state trooper pursued a motorist across the North Carolina border for failing to dim his headlights to oncoming traffic in violation of Virginia law, and after the stop arrested the driver for DUI under Virginia law, and brought him back to Virginia. The motorist was convicted and appealed. The Virginia Court of Appeals held that failing to dim headlights was a misdemeanor, that the stop was after "hot pursuit" across state lines and thus lawful. Weaver vs. Commonwealth, 29 Va. App. S-50 (Record No. 0555-98-3, Apr. 13, 1999)

Notice of Habitual Offender Status

-- A frequent defense to the charge of Driving After Being Declared Habitual Offender is that the driver is without proper legal notice that he or she has been adjudicated an Habitual Offender. The Virginia Court of Appeals recently clarified what is deemed sufficient notice. If the Defendant or the Defendant's attorney notes an appeal to the adjudication as an Habitual Offender, it is sufficient proof that the Defendant is aware of the adjudication order. Owens vs. Commonwealth, VLW099-7-224 (Va. App. Rec No. 1060-98-2, 05-04-99)[unpublished].

DISCLAIMER: The information provided on this page is not intended to be legal advice. It is merely background information about legal issues of interest, selected statutes and selected recent cases in the Virginia Courts. Any individual legal issue should be discussed directly with a qualified attorney who has been engaged to render an opinion.