Preliminary Breath Test Inadmissible, Not Harmless

Incarcerated Mom’s Rights Terminated

By Deborah Elkins
Published: May 23, 2013
Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

The Court of Appeals affirms termination of mother’s rights to her two children who were removed after two step-children ages three and four were severely injured and mother engaged in activity resulting in her incarceration on federal drug, perjury and felony child abuse charges with a mandatory minimum sentence of 15 years. Mother lived with [...]

Runaway Mom’s Rights Terminated

By Deborah Elkins
Published: May 23, 2013
Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

The Court of Appeals affirms terminating mother’s rights to her three-year old child for insufficient progress remedying the conditions requiring foster care; mother is an undocumented immigrant eight months pregnant with another child; her mother’s home is not suitable and the child is doing well with prospective adoptive parents. Mother had child in 2009 while [...]

Consent to Search After Traffic Stop

By Deborah Elkins
Published: May 23, 2013
Tags: Criminal, Judge Glen A. Huff, Virginia Court of Appeals

Defendant cannot overturn his bench trial conviction and one-year suspended sentence for narcotics possession by challenging the consensual nature of the police search of his vehicle, the Court of Appeals says; defendant freely consented to the search after the valid stop for a traffic infraction had ended. One night in August, a deputy sheriff stopped [...]

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 [...]

Suppression Order Reversed in Meth-Lab Case

By Deborah Elkins
Published: May 16, 2013
Tags: Judge Robert P. Frank, Search & Seizure, Virginia Court of Appeals

A deputy who accompanied a social worker to a home to investigate the possible presence of children in a methamphetamine-manufacturing site had probable cause and exigent circumstances to enter the home, after observing items used to manufacture the drug in a burn pile outside the home and hearing movement inside when the deputy knocked at [...]

Husband’s ED Appeal Untimely

By Deborah Elkins
Published: May 16, 2013
Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

A husband failed to timely appeal the final divorce decree awarding wife equitable distribution and ordering husband to reimburse wife for garnishment of her wages to pay their joint debt to husband’s brother, and he did not preserve his challenge to a finding of contempt against him, and the Court of Appeals summarily affirms the [...]

Prior Md. Crime Is ‘Violent Felony’

By Deborah Elkins
Published: May 16, 2013
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

Defendant’s prior conviction under a Maryland statute for assault with intent to maim qualifies as a predicate violent offense under Va. Code § 18.2-308.2, and the Court of Appeals affirms defendant’s conviction of possession of a firearm after being convicted of a violent felony. Under Code § 19.2-297.1(B), the commonwealth could rely on defendant’s Maryland [...]

Employer Has ‘Bona Fide’ Safety-Rule Defense

By Deborah Elkins
Published: May 16, 2013
Tags: Judge Randolph A. Beales, Virginia Court of Appeals, Workers' Comp

The Court of Appeals says a commercial laundry attendant with a prior back injury is barred from workers’ comp benefits for a later back injury because of his misconduct in failing to wear the back brace, despite the attendant’s claim that the employer did not enforce its back brace safety rule. The commission did not [...]

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 [...]