DWI Prosecution Barred After Reckless Conviction

Strip-Mall Parking Lot Driving Not ‘Highway’

By Deborah Elkins
Published: May 29, 2013
Tags: Judge Walter S. Felton Jr., Traffic Offenses, Virginia Court of Appeals

The Court of Appeals reverses defendant’s conviction of driving on a suspended license after multiple DUI convictions because her act of backing out of a marked parking space in a strip mall parking lot did not constitute driving on a “highway” under Va. Code § 46.2-100. Virginia Code § 46.2-391 provides that it is unlawful [...]

Husband Wins Remand on Retirement Share

By Deborah Elkins
Published: May 23, 2013
Tags: Domestic Relations, Judge Walter S. Felton Jr., Virginia Court of Appeals

On husband’s appeal, the Court of Appeals affirms a final divorce decree awarding wife $225 monthly spousal support and remands for clarification of the award of 35 percent of husband’s Virginia Retirement System (VRS) account; husband’s arguments are procedurally defaulted but remand is needed to conform the order to Va. Code § 20-107.3(G)(1) limiting equitable [...]

Provider Surcharge for Comp Patients Not Paid

By Deborah Elkins
Published: May 16, 2013
Tags: Judge Walter S. Felton Jr., Virginia Court of Appeals, Workers' Comp

Testimony by the chief financial officer of an orthopedic practice that it charges 40 percent more for workers’ compensation patients, to cover overhead for extra time and administrative costs, does not prove the provider’s case that its fees are reasonable under Va. Code § 65.2-605, and the Court of Appeals upholds denial of the provider’s [...]

Objection to Ex Parte Communication Waived

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

Defendant is not entitled to reversal of his jury trial conviction for malicious wounding after he failed to timely object to the trial court’s sua sponte written responses to jury questions with no counsel present, the Court of Appeals says; Rule 5A:18 requires a timely objection and we will not sua sponte apply the good [...]

Attempted Murder Not Abduction

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

Evidence sufficient to prove defendant attempted to murder his wife with a shotgun is not sufficient to prove he abducted four other family members present, the Court of Appeals says; no evidence shows defendant detained them with intent to deprive them of their liberty; their fear about what might happen did not prevent them from [...]

Observed Violations Allow Stop

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

On commonwealth’s appeal, the Court of Appeals reverses suppression of marijuana and cocaine found on defendant’s person incident to his arrest after he fled from police; the numerous traffic violations the pursuing officer observed provide probable cause regardless of his original erroneous suspicion defendant was a murder suspect at large. One afternoon in February, a [...]

Sentencing Error Gets Remand, Not Retrial

By Deborah Elkins
Published: April 5, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

A defendant who used a knife on the man with whom she lived and his brother, and who was sentenced to 10 years on each of two unlawful wounding convictions, wins a remand for resentencing, as five years is the maximum sentence permitted by statute for lawful wounding; the Court of Appeal orders remand, not [...]

Recoupment Statute Constitutional

By Deborah Elkins
Published: April 1, 2013
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

A defendant who pleads guilty to two counts of first-degree murder cannot avoid court costs by challenging the constitutionality of Virginia’s recoupment statutes, the Court of Appeals says; Va. Code §§ 19.2-336 and 19.2-358 imply discretion for the trial court to consider a defendant’s ability to pay and provide contempt sanctions only for intentional refusal [...]

Suppression Ordered for Gun in Backpack

By Deborah Elkins
Published: December 19, 2012
Tags: Judge Walter S. Felton Jr., Search & Seizure, Virginia Court of Appeals

A trial court erred in refusing to suppress a gun found in a backpack defendant left in a mall security office when he sought assistance from a security officer in approaching his girlfriend with whom he had just had a fight; the Court of Appeals says the gun could not be admitted under the community [...]