Virginia Lawyers Weekly VA Lawyers Weekly
Amendments to the Virginia Code last year prohibiting a traffic stop for excessively tinted windows are not retroactive, a Newport News circuit judge has ruled.
He declined to suppress drugs and weapons found during a stop in March 2020.
The ruling creates a split in the circuits across Virginia. Earlier this summer, a Roanoke County judge held that the amendments should be applied retroactively, dismissing drug charges against a driver there.
The Newport News case is Commonwealth v. Tarpley (VLW 021-8-104). Judge Gary A. Mills issued the decision.
Window tinting
In March 2020, a Newport News police officer stopped a man named Mishon Tarpley for excessive window tinting and an improperly displayed license plate.
The officer smelled marijuana as he approached the car. The driver made a statement indicating that he had marijuana on him. The cop found marijuana, a bag of suspected crack cocaine and a gun in the car.
Tarpley sought to have the charges dismissed based on legislative amendments to Virginia Code § 46.2-1052, passed by the General Assembly during a special session last August and signed by Gov. Ralph Northam.
The changes stated that an officer may not “lawfully stop” a vehicle for a number of minor traffic violations.
One of the issues in the Tarpley case was whether the changes were procedural or substantive.
Tarpley argued the changes were procedural, which under law would mean they apply retroactively. The commonwealth argued that the amendments were substantive changes that did not apply retroactively.
“The Court agrees with the Commonwealth,” Mills wrote.
Mills looked to the legislative history of the amendments, noting that the General Assembly used the word “reenacted” when adopting them.
He quoted Virginia Code § 1-238, which states, “’Reenacted,’ when used in the title or enactment of a bill or act of the General Assembly, means that the changes enacted to a section of the Code of Virginia or an act of the General Assembly are in addition to the existing substantive provisions of that section or act and are effective prospectively unless the bill expressly provides that such changes are effectively retroactively on a specified date.”
Mills observed that the changes did not have an express provision that they should apply retroactively.
As a result, he denied the defendant’s motions to suppress.
Split in the circuits
In June, a similar issue involving a driver stopped in June 2020, also before the effective date of the amendments, came up in Roanoke County. That driver also was stopped for a minor infraction, an improperly mounted light and an expired registration.
In Commonwealth v. Woods (VLW 021-8-086), Roanoke County Circuit Judge Charles N. Dorsey found that the changes to the law were procedural.
“The exception for retroactive application of procedural laws is both codified in the Code and supported by appellate case law, and the General Assembly is presumed to know the law,” the judge wrote. Dorsey added that because of this, retroactivity of statutes that modify procedural rights are allowed for by Virginia law, regardless of whether the General Assembly explicitly stated that in their legislation.
The Supreme Court of Virginia designated the difference between substantive and procedural changes in 2015, stating “substantive rights… are included within that part of the law dealing with creation of duties rights and obligations” while “procedural or remedial law… prescribes methods of obtaining redress or enforcement of rights.”
In ultimately ruling in favor of Woods, Dorsey wrote the new legislation “merely forbids the police from initiating a traffic stop in order to enforce a violation of one or more of the statutes amended in this way.”
