Criminal Law

A Reckless Driving Conviction Bars a Felony DUI Prosecution.

Under Virginia Code sec. 19.2-294.1, whenever a person is charged with both Reckless Driving and DUI from the same act, and is convicted of one, the court is required to dismiss the other. In Lawson v. Commonwealth (December 11, 2012) a driver was charged with both Reckless Driving and felony DUI (as a fourth offense).  He was found guilty of Reckless Driving, a misdemeanor, and asked that his DUI be dismissed per the statute. The government argued…

In a DUI, the Prosecutor Need Not Prove that the Breath Test Machine had been Tested and Found to be Accurate.

Virginia Code sec. 9.1-1101 (b) (3) requires that breath alcohol test machines be tested and found to be accurate at least once every six months. What happens if the prosecutor fails to prove that this actually happened?  According to the Court of Appeals of Virginia . . . nothing. According to the Court, prosecutors don’t have to prove a machine’s accuracy; rather, the defendant has the duty to introduce evidence showing that the breath test equipment…

Maryland’s robbery law is not “substantially similar” to Virginia’s and cannot be mentioned in a Virginia robbery trial.

The Court of Appeals of Virginia reversed a robbery conviction because the trial court considered evidence of two prior robbery convictions from Maryland.  The issue was whether robbery in Maryland is “substantially similar” to robbery in Virginia. In Virginia, an intent to steal which arises after the application of force is insufficient to prove robbery.  However, in Maryland, if force precedes the taking, the intent to steal need not coincide with the force.  Since in…

Search and seizure: Brief investigatory detention based on inconsistent statements by passenger is lawful

Police seized a motorist for speeding.  During the ticketing, the driver and passenger separately told the officer different things about their travels within 9 minutes of the stop.  This was short enough for the officer to call in a drug dog 13 minutes after the stop to alert the officer to the presence of drugs in the trunk 3 minutes later. (There were other clues of criminal activity — nervousness, two people but four phones,…

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