Drug prosecutions can arise from Virginia drug curfew laws, and are allowed by Virginia courts

Drug prosecutions are widespread in Virginia, and curfews give police easier pickings of criminal suspects. As a Fairfax criminal lawyer, I know that various jurisdictions impose curfews, even though curfews seriously harm our civil liberties. The curfews give police a green light to make additional drug arrests. The Virginia Court of Appeals last week declined to make curfew exceptions a saving grace from a police car stop that was effectuated only because of the alleged curfew violation. Turner v. Virginia, ___ Va. App. (Sept. 20, 2022).

What are some common exceptions to Virginia curfew laws?

The curfew in Turner lasted for three days for a very long time interval each day (8:00 p.m. to 5:00 a.m.). A violation of this curfew was a Class 1 misdemeanor, which excepted people traveling to and from work, members of certain professions, and those seeking emergency services. Turner. After seeing several people walk up to Turner’s vehicle in a hotel parking lot, law enforcement followed his vehicle as it left that parking lot. Based on Turner’s fearful expressions, law enforcement called over a drug sniffing canine and its handler to walk around the outside of his car. The drug dog alerted to drugs, and police then found Phencyclidine / PCP / angel dust in Turner’s vehicle. This having been curfew time, police had easy pickings for drug prosecutions, to stop Turner and anyone else caught driving or otherwise on the streets during curfew time.

Do exceptions to Virginia curfew laws  prevent drug prosecutions?

Turner makes clear that police and prosecutors do not have a burden in drug prosecutions to establish that a particular suspect falls within exceptions to a curfew law, versus providing an affirmative defense against prosecution for violating a curfew. Turner. This means that such exceptions provided no Fourth Amendment nor other relief to Turner for the police search of his car that followed his traffic stop. Turner. 

Can a Virginia drug defendant avoid a drug dealing conviction after admitting to police that s/he had been dealing drugs?

Turner admitted to police that he had been selling PCP, as recently as earlier the same day as his arrest. That admission in this or any other Virginia drug prosecutions destroyed his appellate argument that the evidence was insufficient to convict him for dealing drugs rather than simply possessing them for personal use (and Turner did admit to police that the same day he had smoked a dipper, which is a cigarette dipped in PCP liquid). Turner. Nonetheless, none of Turner’s foregoing hurdles barred him from arguing at trial that the prosecution had failed to prove beyond a reasonable doubt that the alleged substance was in fact an unlawful controlled substance, nor to set the matter up for possible jury nullification, even though obtaining jury nullification is usually an uphill battle or harder than that, particularly seeing that a Virginia criminal defense lawyer is not permitted to argue for jury nullification.

Fairfax criminal lawyer Jonathan Katz transitioned to criminal defense work from his first law firm in part out of opposition to the civil liberties violative excesses of the drug wars. Your first meeting with Jon Katz will reveal to you vital defenses and possibilities as you and your lawyer fight your prosecution for alleged Virginia DUI, felony and misdemeanor offenses. Call 703-383-1100 for your free initial in-person consultation with Jon Katz about your court-pending case  .