Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant argued there was no probable cause to issue an arrest warrant charging him with refusing a breath test after he was stopped for driving under the influence, subsequent offense within 10 years, he has waived the argument because he did not timely present it to the trial court.
Waiver
“Rule 3A:9(b)(1) and (c) provide that: ‘[O]bjections based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion … filed or made before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial.’ … ‘
“Failure to comply with these requirements constitutes a waiver.’ … As our Supreme Court has recognized, however, ‘relief from any waiver may be granted under Rule 3A:9(d)’ for good cause. …
“Presented with similar facts in Harris v. Commonwealth, 39 Va. App. 670 (2003) (en banc), we held that a challenge to the validity of the charging instrument must be raised in a pre-trial motion, absent good cause. …
“On appeal, the Commonwealth argued for the first time that Harris had ‘procedurally defaulted’ his argument ‘because he failed to raise a defense or objection “based upon defects in the institution of the prosecution,” seven days prior to trial, as required by Supreme Court of Virginia Rule 3A:9(b) and (c).’ ,,,
“We agreed and held that Harris had waived his argument by failing to comply with Rule 3A:9 or demonstrating ‘good cause’ for his failure to do so. …
“Accordingly, we decided that the trial court had reached the right result for the wrong reason. … Significantly, we concluded that Harris had defaulted his challenge to the charging instrument by failing to comply with Rule 3A:9, even though the trial court considered the merits of his arguments at trial. …
“Based on Harris, we hold that Neeper likewise waived his challenge to the validity of his refusal warrant by waiting to raise it during his motion to strike. Nothing in the record demonstrates that he had good cause not to comply with Rule 3A:9. …
“Accordingly, as he waived his argument, we conclude that the trial court reached the right result by denying his motion to strike. … Nevertheless, we may not affirm the trial court’s decision on this basis ‘where the development of additional facts is necessary.’ …
“Here, the record before us is sufficiently developed for us to determine that Neeper waived his argument by failing to raise it before trial. Indeed, the Commonwealth argued to the trial court that Neeper was required to challenge the arrest warrant before trial.
“Accordingly, we find no reversible error in the trial court’s denial of Neeper’s motion to strike.”
Hearsay
“[E]ven assuming arguendo that the trial court erred by admitting evidence relating to the magistrate’s issuance of the arrest warrant for refusal, the error did not have ‘any substantial influence on the verdict.’ …
“The Commonwealth presented evidence of Neeper’s prior DUI conviction, and the evidence was undisputed that Neeper declined to submit to a breathalyzer. Further, because Neeper had waived his argument concerning the arrest warrant’s validity, any evidence relating to that issue was not relevant to his guilt or innocence at trial.
“Accordingly, any error in the trial court’s admission of the evidence was harmless.”
Neeper v. Commonwealth, Record No. 0263-22-3, Nov. 9, 2022. CAV unpublished opinion (Ortiz). From the Circuit Court of Augusta County (Goodwin). Sanita Swift Sherard for appellant. Jason S. Miyares, Tanner M. Russo for appellee. VLW 022-7-513, 8 pp.
