Virginia criminal statutes can be harsher than their plain words suggest, says Fairfax criminal lawyer

Virginia criminal statutes do not always means what their plain words seem to say. As a Fairfax criminal lawyer, I warn that this is a reason by itself for a Virginia DUI or criminal defendant to at least timely consult with a qualified lawyer about their case. The old saw about ignorance of the law being no defense against a prosecution certainly gets stood on its head when the plain words of the written law are not what the Virginia appellate courts say those words mean. Examples of this unclear statutory meaning state of affairs is found in the definition of intoxicated for Virginia DUI and public intoxication / drunk in public prosecutions, the meaning of “prosecution” for preliminary breath testing in Virginia DUI cases, and the meaning of public place for purposes of indecent exposure and public masturbation prosecutions.

Why do Virginia criminal statutes involve a watered-down definition of “intoxicated” for DUI and public intoxication cases?

One of the most disappointing and unjust aspects of Virginia criminal statutes is the watered down definition of intoxicated for Virginia DUI and — by extension — public intoxication cases. Unfortunately, for Virginia DUI prosecutions, the appellate caselaw accepts the following diluted statutory definition in an unrelated code section that is currently codified at Virginia Code § 4.1-100): “‘Any person who has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed to be intoxicated.‘ … This definition if applied in all pertinent cases tends to make the law consistent, uniform, certain, stable, and fair, a much desired goal.” Gardner v. Virginia, 195 Va. 945, 954 (1954) (emphasis added). See also Ratliff v. Com , 53 Va.App. 443, 448 (2009). I am ready to argue that “drunk enough alcohol” would mean that we are not talking here about a scintilla of alcohol effect. A Virginia DUI defense lawyer has available arguments that the totality of the circumstances and any low breath or blood alcohol test supports the existence of reasonable doubt as to guilt.

What is a “prosecution” for purposes of preliminary breath testing in Virginia DUI cases?

Another counterintuitive aspect of Virginia criminal statutes is the meaning of prosecution in the following passage of the commonwealth’s preliminary breath testing statute for DUI cases: “The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.” Va. Code § 18.2-267(E). In one Northern Virginia county adjacent to my Fairfax County criminal defense office, the county police routinely use this “prosecution” language. The plain meaning of prosecution to the layperson includes suppression hearings. However, the Virginia Court of Appeals says that the foregoing passage’s use of “prosecution” only applies to the trial stage. Stacy v. Virginia, 22 Va. App. 417, 470 S.E.2d 584, (1996). Nonetheless, in arguing to exclude PBT results at a Virginia suppression hearing, I still am able to argue whether police misstated or embellished on the advice that the foregoing statute requires them to tell Virginia DUI suspects before administering the PBT test, including the suspect’s right to refuse the test and the requirement to use a PBT model approved by the Virginia Department of Forensic Science (DFS).

Indecent exposure and actual and simulated masturbation in a public place can even apply to one’s home when guests are present

Another area of harsh appellate interpretation of plain language in Virginia criminal statutes is found with indecent exposure prosecutions. A review of the commonwealth’s indecent exposure and masturbation/simulated masturbation statutes enables a Virginia criminal defense lawyer to challenge whether the display or act was obscene (not only as defined by statute but also as defined by the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973). See also Barson v. Virginia,  58 Va. App. 451 (2011). Unfortunately, even though the applicable statutes on their face limit such offenses to public places, the Virginia Court of Appeals this month emphasized that public place for such purposes only means where there is no reasonable expectation of privacy. Johnson v. Virginia, ___  Va. App. ___ (Sept. 20, 2022). A saving grace of Johnson is that the three-judge panel in Johnson indicates that it reluctantly is following the interpanel-accord doctrine, that only enables Court of Appeals precedent to be disturbed by the full court en banc or by the Virginia Supreme Court. Johnson could be read as inviting the defendant-appellant to pursue such relief. In the meantime, in defending such cases, I will continue to argue that the alleged display was not obscene, and will challenge the public place element when that argument is applicable.

Fairfax criminal lawyer Jonathan Katz knows how critically important is your criminal defense, not only for your liberty, but for your reputation and employment status. Jon Katz offers you a free in-person confidential initial consultation about your court-pending case, at 703-383-1100. By the time your first meeting with Jon Katz is concluded, you are bound to feel more confident and knowledgeable about your defenses and possiblities in your case.