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VIRGINIA DUI LAW RULINGS

Pancione v. Commonwealth
Luginbyhl v. Commonwealth
United States v. Jones
United States v. Clark
Auer v. Commonwealth
Stevens v. Commonwealth
Easton v. Commonwealth
Bristol v. Commonwealth
Wilson v. Commonwealth
Shelton v. Commonwealth
United States v. Barber
United States v. Montigue
Henry v. Commonwealth
Brooks v. Commonwealth

Pancione v. Commonwealth (2005 Va. App. LEXIS 217 (May 31, 2005):  An off-duty, out-of-jurisdiction police officer saw a motorist driving poorly.  He followed him and, when the driver stopped, he did too and detained the driver until officers of the jurisdiction arrived.  The driver argued that the off-duty officer lacked probable cause for a proper arrest.  The court held that the officer made a lawful citizen's arrest and, as a citizen, wasn't bound by 4th Amendment protections against unlawful arrests.  RULE OF LAW:   A police officer can morph into an ordinary citizen when off-duty and out of his jurisdiction.  When he does so, the 4th Amendment doesn't apply to his actions because he is no longer a state actor.
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Luginbyhl v. Commonwealth , 2005 Va. App. LEXIS 329 (Aug. 30, 2005), reh'g granted , 2005 Va. App. LEXIS 372 (Sept. 27, 2005), the Court held that the Confrontation Clause does not require the person who administered a breath test to testify.  It considered both the test result that is printed on all Certificates of Analysis and the "attestation clause" on the Certificates that certify that that the test was conducted in accordance with the Division's specifications and that the equipment on which the breath test was conducted had been tested within the past six months and had been found to be accurate.  Of course, since this case is now under en banc review, this issue is still open.  RULE OF LAW:   The breath test operator may or may not be required to testify in Virginia DUI trials depending upon the outcome of this case.
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United States v. Jones , 2005 U.S. Dist. LEXIS 30601 (W.D. Va. 2005).  A U.S. Park Ranger saw the defendant speeding in Cumberland Gap park and stopped him just outside the park (and outside Virginia) and arrested him for DUI.  The defendant argued that the arrest was illegal because the officer was outside his jurisdiction and the resulting DUI in Virginia's federal court should be dismissed.  The Court held that Park Rangers could arrest outside their jurisdiction if the defendant is "fleeing" from within their jurisdiction.  The Court defined "fleeing" as "to pass away swiftly," and ruled that one can "flee" even if he didn't know he was being pursued.  RULE OF LAW:   Park Rangers may arrest one outside a park if he sees the person on the park, follows him out of the park, and the accused leaves the park "swiftly."  The ruling suggests that the officer could not lawfully arrest one who was leaving a park "slowly."
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United States v. Clark , 361 F. Supp. 2d 502 (E.D. Va. 2005):  A man was convicted of DUI on a military base in Virginia.  Because he was previously convicted of DUI within five years of the present offense, the Virginia mandatory minimum penalty required twenty days in jail.  However, the federal magistrate did not impose any jail time.  Instead, the court ordered the defendant to be confined to his military base for six months among other penalties.  On appeal to a district court judge, the court held that federal courts must impose the Virginia mandatory minimum penalties.  However, it allowed for federal incarceration alternatives, such as home confinement, weekend incarceration, or community confinement.  (The court did not consider the "base confinement" to be equivalent to "home confinement").  RULE OF LAW:   Virginia's mandatory DUI penalties apply to cases on federal military bases.  However, generous federal sentencing alternatives are applicable.
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Auer v. Commonwealth , _____ Va. App. _____ (Oct. 25, 2005).  RULE OF LAW :  Even if the Commonwealth litigates a second or subsequent offense case as a first offense case, it may still present evidence of the prior offense at sentencing.  Moreover, even though prior convictions under local laws are not specifically enumerated in § 19.2-295.1 as admissible sentencing materials in the sentencing phase of a bifurcated trial, they can be so used. 
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Stevens v. Commonwealth , 46 Va. App. 234 (2005):  The trial court dismissed a DUI case where the police officer failed to give the accused a copy of the independent lab sample request form.  The trial court reasoned that the Commonwealth failed to properly follow Virginia's Implied Consent law.  The Court of Appeals didn't get to rule on that issue, however, and affirmed the companion Involuntary Manslaughter case.  RULE OF LAW:   The Commonwealth has to comply with the Implied Consent law in order to compel one to submit to a blood or breath test.
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Easton v. Commonwealth , 2005 Va. App. LEXIS 248 (June 28, 2005):  A woman who was parked in her driveway on private property admitted that she had driven there within the previous hour.  But for this admission, there was no evidence that she had operated the motor vehicle on a "highway" which is required for the Commonwealth to compel one to submit to a breath or blood test.  However, based on her statements, the Court affirmed her conviction.  RULE OF LAW:   Police do not need to actually observe a person operate a motor vehicle on a highway in order to require the person to submit to a breath or blood test.  An admission by the person that he or she had done so is sufficient.
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Bristol v. Commonwealth, 45 Va. App. 534 (2005), re'hg granted 2005 Va. App. LEXIS 219 (2005):  CAUTION! CASE UNDER REVIEW:  A police officer investigating a traffic accident, met one of the drivers at the hospital.  At the hospital, he verbally told the driver that he was under arrest, but did not take him into custody.  The Court ruled that this verbal arrest was not a legal arrest.  Since the defendant was indicted two months after the hospital visit (and traffic accident), the true arrest certainly did not occur within three hours of the traffic accident as required by law.  As a result, the blood test result which was taken under Virginia's "implied consent" law -- which is predicated on a timely arrest -- was invalid and the charges were dismissed.  RULE OF LAW :  A police officer must actually take a person into custody in order to "arrest" him.  A verbal statement that one is under arrest, alone, is insufficient.
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Wilson v. Commonwealth, 45 Va. App. 193 (2005):  An off-duty deputy, outside his jurisdiction, observed the defendant's poor driving behavior.  He followed him, called for local police, and detained him once he stopped.  Even though he showed his badge, the Court held that he was acting as a citizen making a citizen arrest and affirmed the DUI conviction.  The Court noted that the deputy said that he was outside his jurisdiction and that he had called, and was waiting for, local police.  RULE OF LAW:   Police can make "citizen arrests," so long as they don't aggressively use the "color of their office."
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Shelton v. Commonwealth, 45 Va. App. 175 (2005):  A police officer failed to give a suspect a copy of his breath test results in violation of Virginia Code sec. 18.2-268.9.  Instead, he only showed him the test results.  The Court held that this was "substantial compliance" under Virginia Code sec. 18.2-268.9.  RULE OF LAW :  The police do not have to give a copy of the breath test results to an accused person in all circumstances.
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United States v. Barber , 360 F. Supp. 2d 784 (E.D. Va. 2005):  The Court holds that it will apply Virginia's new mandatory minimum penalties for cases involving the Code of Federal Regulations (such as the Pentagon and the GW Parkway) for comity purposes.  Previously, the mandatory minimums only applied to federal cases that actually assimilated Virginia law (such as military base cases) .   RULE OF LAW:  Even though not mandatory, the federal court in Virginia will apply Virginia's mandatory minimum sentences as if they were.
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United States v. Montigue, 357 F. Supp. 2d 939 (E.D. Va. 2005):  A federal judge rules that state mandatory jail time can be served through federal incarceration alternatives, such as home detention, for offenses committed on federal property.  RULE OF LAW:   "Mandatory minimum jail" does not always mean "actual incarceration" for DUI cases committed on federal property, such as military bases.
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Henry v. Commonwealth, 44 Va. App. 702 (2005):  The police failed to comply with breath test equipment storage requirements of 6 VAC 20-190-40.  The Court held that, absence evidence of prejudice to the accused from such failure, the test results are admissible.  The Court read Virginia Code sec. 18.2-268.9, 6 VAC 20-190-40, and Virginia sec. 18.2-268.11 together, and concluded that, in the absence of a showing of prejudice by defendant, substantial compliance is sufficient for the admission of the test results.   RULE OF LAW :  The police do not have to maintain their equipment per regulations so long as their neglect does not result in prejudice to the accused.  The accused has the burden of proving that such deficiencies prejudiced him or her. 
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Brooks v. Commonwealth, 2005 Va. App. LEXIS 65 (Feb. 15, 2005):  In a DUI-Second or Subsequent Offense trial, the prosecutor tried to prove that the defendant had a prior DUI conviction by offering a Circuit Court Order that was signed by the clerk but not the judge.  The defendant objected to this unsigned order.  The appeals court held that the fact that the clerk's office certified the copy of the Order gave the document a "presumption of regularity" and affirmed the conviction.  RULE OF LAW:   An unsigned court order that is nonetheless certified by the clerk's office can be used to prove a prior DUI conviction.
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