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In a recent decision by the Court of Appeals of Virginia, the court demonstrate that words have particular meanings, and the words that are chosen by a legislature can drastically change the operation of a criminal statute.
The case in question involved a charge of carrying a concealed weapon. The defendant had a handgun in a glove box in his vehicle. The glove box was closed and latched, but not locked. The defendant was charged with carrying a concealed weapon in violation of Va. Code § 18.2-308.
The defendant argued, and the Commonwealth conceded on appeal, that the word “secured” does not mean “locked. After an examination of the legislative history of the Statute, and finding that the legislature specifically rejected the word “locked” when enacting an amendment to the Commonwealth’s concealed handgun statute, the court held that, “having [a] gun in a locked glove compartment [does] not,” violate Virginia’s concealed handgun statute.
The court stated that, “The evidence here shows that appellant’s handgun was in a closed, latched and “well-fastened” glove compartment. Pursuant to the statute, appellant’s gun was “secured in a . . .compartment” in his vehicle, thus reducing his access to the weapon. Because appellant’s handgun was in compliance with the exception to the concealed weapon prohibition, his possession of the gun did not violate Code § 18.2-308.”
The lesson from this case is that statutory construction is important, and one simple word can mean the difference between a criminal conviction and a more positive finding.
This is one of the primary reasons that having an attorney who can conduct an evaluation of your charges and the code section under which you are charged, is so important.
Today, the United States Supreme Court decided another important Fourth Amendment case. In a 5-4 decision, the court held that the use of a drug sniffing dog on the porch of a private residence violated the Fourth Amendment. The court was particularly concerned with the level of intrusion into the area “immediately surrounding and associated with the home”—what our cases call the curtilage” pointing out that this area was treated as “part of the home itself for Fourth Amendment purposes.” In reaching the decision, the court specifically rejected the contention that the officers should be treated similarly to traveling salesman or other visitors who might find their way to the front door. The court stated that, “introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”
On July 1, 2012 the Code of the Commonwealth of Virginia was amended to significantly strengthen penalties for assaults that include strangulation.
This new code section reads as follows:
§ 18.2-51.6. Strangulation of another; penalty. Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.
The elements of this offense are :
1. Knowingly, intentionally and unlawfully;
2. without consent;
3. impeding the blood circulation or respiration;
4. of another person;
5. by applying pressure to the neck;
6. resulting in wounding or bodily injury.
The mens rea element requires one to engage in knowing, intentional and unlawful conduct. The actus reus elements require impeding either the blood circulation or respiration, by applying pressure to the neck, that results in wounding or bodily injury.
While the courts in Virginia have not yet had the opportunity to develop case law in this area, other states have had the opportunity to define the law in this area. It is likely that Virginia law could develop in a similar manner.
Two specific cases from North Carolina are instructive on this point. In State v. Williams, the North Carolina Court of Appeals held that the State did not have to prove that a victim had difficulty breathing to satisfy the statutory requirements for assault by strangulation. State v. Williams, 689 S.E.2d 412 (N.C. App. 2009). In Williams, the court held that there was a sufficient showing of assault by strangulation when the victim testified that she felt the defendant was trying to crush her throat, that he pushed down with his weight on her neck with his foot, and that she thought he was trying to “chok[e] her out” or make her go unconscious, and that she thought she was going to die. Id. In State v. Braxton, the North Carolina Court of Appeals held that the State was not required to prove that a victim had a complete inability to breathe in order to prove the elements of assault by strangulation. State v. Braxton, 183 N.C. App. 36 (2007).
The defendant had argued that the dictionary definition of strangulation, which requires a complete closing off of the airway of the victim, to control. The court rejected this contention, reasoning that such a strict reading would make the statute superfluous. The court held that there was a sufficient showing when the victim testified to four separate incidents in which defendant grabbed her by the throat, causing her to have difficulty breathing. Id.
These cases are illustrative of the point that assault by strangulation is interpreted broadly by the courts, and does not require a great deal of physical injury to sustain a conviction. Indeed, the Virginia statutory language requires only a “wounding or bodily injury,” not a “serious” or “permanent” bodily injury.
Thus, it would seem to indicate that a bruise, slight closing of the airway, or red marks would be sufficient, as would testimony that difficulty breathing occurred. While this statute gives prosecutors a new tool to fight domestic violence, there is always a risk of false allegations. Prior to the enactment of this penalty, an assault by strangulation did not constitute a crime that was distinct from assault. Today, strangulation is a distinct crime that brings with it serious felony penalties.
If you are facing charges that involve assault by strangulation or any other felony offense, it is important to have a lawyer working for you who will represent your interests and ensure that you have a defense. At the Weber Law Firm, PC we stand ready to defend you if you are facing legal trouble. Visit our website www.weberlawva.com today for more information on the services that we offer.
On February 19, 2013, the United States Supreme Court decided an important Fourth Amendment case with important ramifications for law enforcement and citizens alike. In Bailey v. United States, the court limited the application of the so-called Summers rule, which had been read as a bright-line test that permitted police officers to detain occupants of a premise that was the subject of a lawful search warrant, while the warrant was being executed. The Summers rule was unique in that it did not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.
In Bailey, police were waiting to execute a search warrant when they observed two men leave the apartment that was subject to the search, get in a car, and drive away. The police waited until the car was nearly a mile from the apartment before stopping it. Both men were handcuffed and driven back to the apartment, where it was found that one of the men had a key that opened the apartment. Inside the apartment, the police discovered a gun and illegal narcotics.
The government relied on the Summers rule to justify the stop and detention of the two individuals. The government argued that Summers was a bright-line rule that justified the detention of the individuals, as they had been recent occupants of a location subject to a lawful search warrant.
The Summers Rule was based on three justifications, “officer safety, facilitating the completion of the search, and preventing flight.” The Court in Bailey held that these justifications were not present under the present facts.
Accordingly, the Court held that the application of the Summers rule is limited “the immediate vicinity of a premises to be searched . . .” Justice Kennedy went on to write that, “Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place.”
Justice Kennedy went on to explain that, “If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect’s particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention.”
For law enforcement officers, Bailey stands for the premise that the police may still lawfully detain occupants of a premises subject to a lawful search warrant, but only if such occupants are detained on the premises or in the immediate vicinity. If officers elect to allow individuals to leave a location, independent grounds for a seizure must exist, either probable cause or reasonable suspicion in accordance with Terry v. Ohio. For citizens, this decision clarifies the importance of the Fourth Amendment and its protections.
The Court’s entire opinion can be read here:
The Weber Law Firm, PC has moved to a brand new location. Our offices are now conveniently located at 2727 Electric Road, Suite 101 Roanoke, VA 24018. Our new location is centrally located to Roanoke City, Roanoke County and Salem. Only a short distance from the Tanglewood Mall, our new location has ample parking and will allow us to better serve you. Come visit us at our new location for all of your legal needs.
It can happen to anyone. You are driving down the roadway, not really paying much attention, when suddenly you see Flashing blue lights in the rear view mirror. In a split second a dozen thoughts race through your head. What did I do? Are they after someone else? Where can I pull over? I can’t afford a ticket.
Many of us have been there, but not many of us recognize what to do after being stopped.
Here are a few tips to remember.
1. Find a safe spot to pull over.
Statistics show that more and more officers are being killed in traffic fatalities each year. When the officer stops a car, the officer must keep an eye on the vehicle in case someone inside intends to do harm. At the same time, the officer must watch traffic as it races by at high speed.
If you park halfway hanging out into the roadway, the officer is not going to be happy when they are dealing with you. If you are on a location that doesn’t have a great area to stop; Slow down, signal to indicate that you see the officer and are going to stop, and proceed to go to a location where you can pull completely off the roadway. This will make the traffic stop safer for the officer, and might lighten their mood just a bit.
2. Turn off your radio, roll down your window, and place both of your hands on the steering wheel.
As you stop and before the officer approaches the vehicle, turn off any radio or electronic device. If you are on a cell phone, tell the person on the other line that you will call them back. Don’t immediately reach for your license and registration. Instead, roll down the window, and put both of your hands on the steering wheel.
Officers are assaulted quite often in their line of work. If they can see your hands on the steering wheel during the stop, you will put the officer at ease a bit.
3. Do not reach for things in the vehicle.
This is a big one. Never, ever reach for something in the vehicle without being told to by the officer. The officer may perceive a threat, and furtive movements may give the officer reasonable suspicion to frisk the vehicle for weapons. Simply keep your hands on the wheel and ask the officer politely, “May I get my registration, it is in the glove box.” You might also ask, “May I get my license, it is in my wallet, purse, ect…”
4. Be polite.
When interacting with the officer, you should be polite and courteous. One of the most common things that the Judge or Commonwealth Attorney will ask in court is, “Was the driver polite and cooperative.” If you say, “Yes Sir” or “Yes Ma’am” and phrase your conversation in a polite and respectful manner, you may be less likely to get a ticket, and if you do, it will help you later in court.
5. Do not argue with the officer.
Arguing comes later. It doesn’t matter if you believe that you are in the right. It doesn’t matter if the officer made a mistake. Arguing with the officer on the side of the road will not get you anywhere. Not only will you contravene rule four above, but also you may inadvertently say something that may later hurt your case.
6. Do not admit to any criminal offenses.
A common ploy for officers is to ask, “Do you know why I stopped you?” If you answer this question with an admission of guilt, the officer can use that admission against you in court. The correct answer to this question is always, “No Sir, I am not sure.”
Never make any admissions to the officer regarding any criminal offense.
7. If ordered from the vehicle, close your door behind you.
If you are ordered out of the vehicle (and the courts do permit the officer to do this) politely get out of the vehicle, close your car door behind you and do not place your hands in your pocket. Stand where the officer asks you to stand and remain polite and cooperative.
8. Do not consent to any searches.
During or after encounter the officer may ask for consent to search the vehicle. An officer might even pressure you with loaded questions such as, “If you don’t have anything to hide why don’t you want me to search?”
In most cases, an officer will return your license and registration to you prior to asking for consent to search. Technically at this point, you are free to leave.
If the officer asks for consent to search, politely but firmly tell the officer, “I respect you and your need to do your job, but I do consent to any searches.” If the officer asks why, or what you have to hide, you can respond with, “I have nothing to hide, but I firmly believe in exercising all of my constitutional rights at all times.”
If the officer continues to pressure you, do not argue, but instead ask “Am I free to leave?”
If the encounter is consensual, you will be permitted to leave at this point. If not, politely follow the officer’s directions and remain silent. Do not make any admissions or statements.
9. Take notes about the scene, the time of day, and circumstances of the stop.
After the encounter is over, immediately find something to write with and take detailed notes about the encounter, the time of day, the traffic conditions, and the location and the other circumstances of the stop. If you have a smart phone, you can even take pictures of the area.
This information may be invaluable later if you have to fight a ticket or criminal charge in court.
While any police encounter can create nervousness or anxiety, if you follow the above steps and recognize that the officer is merely doing a job, you will be in a much better position. Here at the Weber Law Firm, PC we are able to assist you in your defense and building the best possible case to protect your Constitutional rights and interests.
Visit us at http://www.weberlawva.com or call 1-540-776-6340
Welcome to the Weber Law Firm, PC blog. We decided to enter the blogosphere to help citizens and community members learn and understand more about the legal system in the Commonwealth of Virginia. We will be posting articles and topics of interest which we hope will be relevant, informative and helpful to you related to legal matters that generally affect ordinary citizens. This information is designed for your benefit and it is our intention to provide this relevant information as a resource to you and others in the community.
We encourage you to check in weekly on our blog for updates and articles that will be interesting and informative. If there are specific issues that you want us to discuss, please feel free to email us and will do our very best to respond to your inquiries. You can contact us at weberlawva.com and submit an email with your questions.