Tag: traffic lawyer in powhatan

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Freaky Friday Halloween Decision – Drink and operate your car radio on your property may result in DUI conviction

Freaky Friday Halloween Decision by the Virginia Supreme Court.  The public is mystified by what it considers a new legal absurdity – Listening to your car radio in a private driveway while drinking is illegal and may result in a DUI conviction! Sarafin v. Commonwealth, October 31, 2014.

The odd conclusion in this DUI case is the result of the court’s deference to the General Assembly.  Rather than concluding that the General Assembly occasionally does a poor job drafting legislation, the court does its best to interpret the statute which from time to time results in legal absurdities.  The court bases its decision on rules of statutory construction.  The court states “[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the  Code, we must presume that the difference in the choice of language was intentional.”   This might have been a time where the presumption should have been rebutted.

The court declined to read § 18.2-266 (the DUI statute) to require that an operator of a motor vehicle be “on a highway” refusing to apply the legislative definition of “operator” under § 46.2-100 that defines “operator” as “every person who either (1) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.”

The reason for rejecting this definition is that to do so would result in a separate absurdity.  § 18.2-266 reads in part, “It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume…”  The court points out that trains do not operate on public highways but on privately owned tracks and therefore reading in the “on a highway” language would make the trains provision meaningless.  (Unless of course the statute only restricts drunk train operating when the track intersects with public highways).

Secondly, in 1994, the General Assembly amended § 18.2-266, prohibiting the operation of “mopeds, … on the public highways of this Commonwealth” while the operator is intoxicated, and therefore since § 18.2-266 when referring to an automobile, it does not state “on the public highways of this Commonwealth” for operating “ it must have meant to differentiate the two.

The decision was split 4-3, with a very vocal dissent.   Justice Mims dissenting stated that the court had previously recognized the nexus or connection between § 46.2-100 and § 18.2-266 in Enriquez v. Commonwealth in 2012 when the court stated that “when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.”  Without [the element of ‘on a public highway’], the Court has taken the final step toward construing Code § 18.2-266 to punish a person for merely occupying, rather than operating, a motor vehicle.”  Justice McClanahan, joined by Chief Justice Kinser also dissented, stating that the “on a highway” element has been the Court’s interpretation as far back as 1964, for similar reasons as Justice Mims.

 

You need experienced counsel.  You should contact a lawyer with Hull Street Law today.   Call 804-230-4200.

Hull Street Law
105 S 1st Street, Suite H
Richmond, Virginia 23219
804.230.4200
804.230.4100 fax

 Disclaimer

 The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

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Can a police officer order everyone out of the vehicle during a traffic stop?

Q. Can a police officer order everyone out of the vehicle during a traffic stop?
A. Yes.

The Fourth Amendment to the United States Constitution guarantees freedom from unreasonable searches and seizures. Generally, this rule is enforced by requiring police officers to obtain warrants in order to search or seize people. However, the Supreme Court of the United States has added many exceptions to the warrant requirement. Additionally, it has expanded the bounds of “reasonableness” in several areas where it has decided that a person’s right to privacy must be balanced with the fact that police officers have an inherently unsafe occupation.

In the seminal case Terry v. Ohio, 392 US 1 (1968) the Court carved out an exception to the warrant requirement which allows officers to briefly detain people for investigative purposes when there is an reasonable articulable suspicion of criminal activity.  These stops are known as “Terry Stops.”   During these stops, if the officer has some reasonable articulable suspicion that the person may be armed and dangerous, the officer may perform a brief, over-the-clothes pat down of the person. This pat down is known as a “frisk.”

In Arizona v. Johnson, 129 S. Ct. 781, 784 (2009), the court stated that once a law enforcement officer has conducted a valid traffic stop, the officer is justified in conducting a frisk of the person for weapons if the officer reasonably suspects that the person stopped is armed and dangerous.  Id.  Commonwealth v. Smith, 281 Va. 582, 589 (2011).

[I]n a traffic-stop setting, the first Terry condition — a lawful investigatory stop–is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Id.

In  Arizona v. Johnson,  the Court summarized the expanded rule from Terry as it applies to traffic stops:

Three decisions cumulatively portray Terry’s application in a traffic-stop setting: Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam); Maryland v. Wilson, 519 U.S. 408 (1997); and Brendlin v. California, 551 U.S. 249 (2007).

In Mimms, the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U.S., at 111, n. 6.

Wilson held that the Mimms rule applied to passengers as well as to drivers. Specifically, the Court instructed that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” 519 U.S. at 415.

It is true, the Court acknowledged, that in a lawful traffic stop, “[t]here is probable cause to believe that the driver has committed a minor vehicular offense,” but “there is no such reason to stop or detain the passengers.” Id. On the other hand, the Court emphasized, the risk of a violent encounter in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.” Id., at 414. “[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great as that of the driver.” Ibid. Moreover, the Court noted, “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413-414, so “the additional intrusion on the passenger is minimal,” id., at 415.

Completing the picture, Brendlin held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” 551 U.S., at 263. A passenger therefore has standing to challenge a stop’s constitutionality. Id., at 256-259.

After Wilson, but before Brendlin, the Court had stated, in dictum, that officers who conduct “routine traffic stop[s]” may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa, 525 U.S. 113, 117-118 (1998). That forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms, Wilson, and Brendlin.

The answer is clear that an officer can order all occupants of a vehicle out of the car pending the completion of the stop if the initial stop was lawful. The reasoning behind these rules is almost always the same: officer safety. What is not so clear is what the officer can do then.

For example, officers are limited in their right to frisk the occupants of the vehicle. They are also limited in how much and what kind of investigations they can complete during the course of the stop. Finally, even if an officer can arrest an individual, there are limits on how much force the officer can use in the process of the arrest.

The rules governing the protection of citizens from unreasonable search and seizure are, at best, vague. If you are charged with a crime and feel that a police officer has violated your right to be free from unreasonable search and seizure, call an experienced criminal defense attorney today.

For traffic or criminal defense in Virginia – Contact Hull Street Law!

Hull Street Law
a division of Thomas H. Roberts & Associates, P.C.
105 S 1st Street, Suite H
Richmond, Virginia 23219
804-230-4200