Traffic Offenses – Driving After HO Order 
By Deborah Elkins
Published: April 14, 2008
Although defendant contends a December 2005 misdemeanor habitual offense was nolle prosequied for lack of actual notice of HO status, he overlooks the fact that the commonwealth proved at trial that he knew he was an HO in December 2005 and had been informed of this fact by a magistrate, and his subsequent conviction for [...]
Criminal – Speedy Trial – Waiver – Continuance
By Deborah Elkins
Published: April 14, 2008
A defendant charged with carnal knowledge of a 13-year-old girl did not object to a continuance for the commonwealth granted because the court was unable to impanel a large enough jury pool, and there was no violation of his statutory speedy trial rights.
We acknowledge that defendant did not expressly “waive” his speedy trial rights, as [...]
Criminal – Wife Murder – Firearm Use – Protective Order
By Deborah Elkins
Published: April 14, 2008
Admission of the protective order defendant’s wife had obtained against him, at his trial for her murder, did not violate his Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36 (2004), and his firearm and murder convictions are affirmed.
The commonwealth offered the protective order into evidence not to prove that defendant in fact assaulted [...]
Traffic Offenses – DUI – Breath Test Refusal
By Deborah Elkins
Published: April 14, 2008
A woman who admitted drinking a little over one glass of wine prior to leaving a party at a restaurant, who was stopped for speeding and who was reported as confrontational and unable to pass field sobriety tests, smelling of alcohol and having watery eyes, is convicted of DUI; however, she is not convicted of [...]
Traffic Offenses – DUI – Maiming – Unconsciousness Defense – Ambien
By Deborah Elkins
Published: April 14, 2008
A driver whose vehicle struck a victim, injuring her legs and requiring amputation of her left leg, after taking several Ambien sleeping tablets for which he had no prescription, cannot defend criminal charges on the ground that he was unconscious when the accident occurred.
Defendant argues he established as a matter of law that because he [...]
Criminal – Venue – Heroin Possession – Unconscious State
By Deborah Elkins
Published: April 14, 2008
A woman who was unconscious from a drug overdose when she was transported from a residence in Henrico County to Hanover County loses her challenge to venue in Hanover for her prosecution for possession of drugs found in her pocket in Hanover.
Here, the contraband was recovered from defendant’s clothing. She admitted that initially she had [...]
Criminal – Probation Violation – Written Notice
By Deborah Elkins
Published: April 14, 2008
Although defendant, who received partially suspended sentences on cocaine possession and statutory burglary charges, correctly points out that the capias mentioned his recent arrests but not the other two probation violations alleged in the probation officer’s major violation report, we disagree that due process principles required the trial court to dismiss the probation violation proceeding.
Because [...]
Criminal – Nighttime B&E – ‘Dwelling House’ – Habitation
By Deborah Elkins
Published: April 14, 2008
A house that the owner slept in about one weekend per month, and maintained for immediate occupancy, was a “dwelling house” for the purpose of a defendant’s conviction of breaking and entering under Va. § 18.2-89.
The issue we consider here, one of first impression in Virginia, is the extent to which a person must inhabit [...]
Criminal – Unlawful Wounding – Child Neglect
By Deborah Elkins
Published: April 14, 2008
On rehearing en banc, the Court of Appeals reverses defendant’s conviction for felony child neglect in violation of Va. Code § 18.2–371.1(B), affirms his conviction for unlawful wounding, and remands for resentencing on that conviction.
The evidence, taken in the light most favorable to the commonwealth, shows that defendant struck his foster son in the head [...]
Search & Seizure – Terry Search – Probable Cause – ‘Plain Smell’ – Drugs In Pocket
By Deborah Elkins
Published: April 14, 2008
Although a police officer testified that when he smelled marijuana coming from defendant’s car and asked him to step from the vehicle for a pat-down, the officer did not believe the suspicious bulge in defendant’s coat pocket was a gun, the officer did not violate defendant’s Fourth Amendment rights when he reached into the pocket [...]
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