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JAMES EASTER, S/K/A JAMES L. EASTER v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
March 7, 2000, Decided

On June 2, 1998, Appellant was arrested for DUI.  Appellant’s operator’s license was administratively suspended for seven days, pursuant to Code § 46.2-391.2.  In general district court, although the Commonwealth had evidence of sufficient convictions to amend the charge to a third offense, it agreed to amend the warrant to DUI, second offense, in exchange for a guilty plea. Appellant pled guilty to, and the court convicted him of, DUI, second offense. Appellant later noted his appeal to the circuit court.  In circuit court, the court amended the charge to DUI, third offense, over appellant’s objection that the amendment violated his double jeopardy and due process rights.  Appellant appealed his conviction for drunk driving from the Circuit Court of Lunenburg County (Virginia), asserting double jeopardy for an improper license suspension under Va. Code Ann. § 46.2-391.2(C), and improper amendment of the warrant to third offense on de novo appeal in the circuit court.

Issues:

Whether the administrative suspension was improper and penal in nature?
Whether the trial court erred in allowing the Commonwealth to amend the warrant to charge DUI?

Discussion:

Here, the general district court did not acquit appellant of any offense.  Acceptance of a guilty plea to a lesser-included offense does not constitute an acquittal of a greater offense.  The administrative suspension is civil and remedial, not penal, in nature, for double jeopardy purposes.  Appellant avoided prosecution for the greater offense by pleading guilty to a lesser offense, pursuant to a plea agreement.  He then breached that agreement by appealing the conviction.  Where a appellant pleads guilty pursuant to a plea agreement and receives the agreed upon sentence, an implied term of the agreement is that the appellant will not appeal what he has bargained for and received.”  Jeopardy did not attach because he did not stand trial for and was not acquitted of DUI, third offense.  He did not suffer prosecution after acquittal and, therefore, his double jeopardy rights were not violated.  When appellant appealed to the circuit court, he placed himself in the same position as he was prior to the plea agreement in the general district court. Appellant stipulated that the Commonwealth intended to amend the warrant to charge DUI, third offense, in the general district court. By appealing the lower court conviction, appellant found himself without the benefit of his bargain, without acquittal on any greater offense, and with the possibility and reality of being tried for the greater offense of DUI, third offense. Amending the warrant did not violate appellant’s due process rights.

This Court affirmed the conviction of driving under the influence, third offense.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.

Understanding DUI Scientific Evidence provides an authoritative, insider’s perspective on new scientific and technological developments in DUI criminal defense. Featuring leading DUI defense practitioners and experts from across the country, this volume offers the reader new information on emerging research related to breath, blood, and urine alcohol analysis, standard field sobriety testing, retrograde extrapolation, accident reconstruction science, and alcohol detection devices. With the National Academy of Sciences questioning the reliability of forensic science, these authors walk the reader through various validity issues with respect to current methods for obtaining and analyzing alcohol evidence and discuss the role this evidence plays in a DUI case. From reviewing pre-existing conditions that may affect gait and nystagmus to examining the functioning errors of Intoxilyers, SCRAM, and TAD machines, these leaders call current protocols into question and share advice on using these inconsistencies as a part of a legal strategy. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today, as these experienced lawyers offer up their thoughts around the keys to navigating this complex and constantly developing area of law.Inside the Minds provides readers with proven business intelligence from C-Level executives and lawyers (Chairman, CEO, CFO, CMO, Partner) from the world’s most respected companies and firms nationwide. Each chapter is comparable to an essay/thought leadership piece and is a future-oriented look at where an industry, profession, or topic is heading and the most important issues for the future. Each author has been selected based upon their experience and C-level standing within the professional community.Chapters Include:1. “The Law and Science of Retrograde Extrapolation” – Lawrence E. Wines2. “Forensic Gait Analysis” – Lawrence E. Wines3. “Accident Reconstruction and Investigation” – Lawrence E. Wines 4. “Science Underlying Horizontal Gaze Nystagmus” – Lawrence E. Wines 5. “DUI Evidence and the National Academy of Science Report on Forensic Science” – Ted Vosk6. “Forensic Toxicology of Urine- and Blood-Alcohol Levels” – Alfred E. Staubus, Pharm.D., Ph.D. and Robert J. Belloto Jr., Ph.D.7. “The Intoxilyzer 8000: Simply an Evolution, Not a Revolution” – Victor W. Carmody, Kevin T. Stewart, and Lance O. Mixon8. “BI TAD and SCRAM X” – Lawrence E. Wines9. “GERD Cases” – Lawrence E. WinesAppendices Include:Appendix A: Forensic Gait Analysis ChecklistAppendix B: Accident Reconstruction Math and FormulasAppendix C: Some Accident Reconstruction Terms DefinedAppendix D: Checklist for HGN Issues & Guide for Video AnalysisAppendix E: Margin of Error—Brief for Administrative Licensing HearingAppendix F: Margin of Error—Appellate Brief for Adverse Administrative Licensing Hearing RulingAppendix G: Cumulative Forensic Lab Failures—Brief to Suppress in Criminal ProceedingAppendix H: SCRAM/TAD Checklist/Questionnaire for Defense AttorneyAppendix I: GERD Checklist

Understanding DUI Scientific Evidence, 2010 Ed.: Leading Lawyers on Analyzing New Forensic Science, Challenging Testing Procedures and Results, and Consulting Experts for Defense Arguments

ALFRED MCKINLEY JONES v. CITY OF LYNCHBURG
COURT OF APPEALS OF VIRGINIA
23 Va. App. 167

On April 12, 1995, appellant filed a motion for review of his administrative suspension.  After hearing appellant’s testimony, the court rescinded the license suspension, finding that the police lacked probable cause to arrest appellant.  Despite the general district court’s ruling, the City of Lynchburg prosecuted appellant in the general district court pursuant to Lynchburg Code § 25-162, which prohibits drunk driving.  On May 2, 1995, appellant filed a motion to dismiss on grounds of acquittal, based on the ruling that there was no probable cause for his arrest.  The general district court overruled the motion and on May 3, 1995, convicted appellant of drunk driving.  After appealing his conviction to the circuit court, appellant again filed a motion to dismiss on grounds of acquittal. On August 8, 1995, the circuit court denied appellant’s motion.

Issue:

Whether the trial court erred in failing to dismiss the drunken driving charge as barred on double jeopardy and collateral estoppel grounds?

The Court held that an administrative license suspension is a civil penalty and does not constitute “punishment” for double jeopardy purposes.  Because the license suspension proceeding “did not impose punishment within the meaning of the double jeopardy clause, appellant was not twice placed in jeopardy in violation of the United States Constitution when prosecuted for driving while intoxicated.  For these reasons, this court held that the doctrines of double jeopardy and collateral estoppel did not bar appellant’s prosecution for drunk driving.  Because the trial court did not err, we affirm appellant’s conviction.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

Originally published here.