Virginia Legal Trends and More

Wednesday, June 29, 2011

New wrinkle in ‘inherent authority’?

June 28th, 2011 · No Comments · Deferred Judgment

A Virginia trial judge has no “inherent authority” to reduce a felony to a misdemeanor after he found the defendant guilty of grand larceny in a bench trial, the Virginia Court of Appeals said today.

The defendant was hoping for a different result in light of the recent Virginia Supreme Court decisions in Moreau v. Fuller and Hernandez v. Commonwealth, but the appellate panel said the new case, Taylor v. Commonwealth, presented a different kind of deferred disposition.

Moreau and Hernandez merely hold that a trial court has discretion to continue a case for future disposition, according to the panel opinion by Judge D. Arthur Kelsey. Those cases don’t endorse acquitting a defendant of grand larceny after finding the evidence proved her guilt beyond a reasonable doubt.

In May 2009, Chesapeake Circuit Judge Randall D. Smith found Kaitlin Airele Taylor guilty of grand larceny of merchandise from a Sears store in a bench trial. Taylor’s lawyer asked if the court would “entertain a motion at the time of sentencing to find her guilty of a misdemeanor versus a felony.” At the sentencing hearing, counsel argued that Taylor had assisted law enforcement in another matter, and again requested a reduction to a misdemeanor.

The trial judge denied the motion. The judge said it was the commonwealth’s role to determine the charge, and the judge’s role to determine whether the evidence met the charge. The trial court said its own ability to defer and dismiss criminal charges were “legislative decisions.”

Neither Moreau nor Hernandez addressed whether the decision ultimately made by the trial court, after a discretionary continuance, could be one that acquitted a criminal defendant whose guilt was proved beyond a reasonable doubt, Kelsey said. Neither decision supported Taylor’s claim.

The trial judge “correctly held it had no authority – constitutional, common law or statutory – to acquit Taylor of grand larceny” after a finding of guilty, Kelsey wrote in an opinion joined by panel members Judge William G. Petty and Judge Randolph A. Beales.

Chesapeake lawyer James B. Melton, who represented Taylor, said he expects to appeal today’s decision.

By Deborah Elkins

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Tuesday, June 28, 2011

DUI Conviction Upheld for Vehicle Seat-Switcher

By Deborah Elkins
Published: June 14, 2011

Tags: Supreme Court of Virginia, Traffic Offenses

The Supreme Court of Virginia says an intoxicated defendant who switched seats with the person who was driving a vehicle stopped by police, because defendant feared the actual driver would be deported if arrested, can be convicted of driving under the influence because she was an “operator” of the vehicle under Virginia law.

This appeal presents only the question of the legal conclusion to be drawn from the uncontested facts. The defendant does not question the sufficiency of the evidence of the degree of her intoxication, but contends she was not the operator of a motor vehicle within the meaning of the relevant statutes.

Virginia Code § 18.2-266 makes it unlawful to “drive or operate” a motor vehicle while under the influence of alcohol to a degree that impairs one’s ability to drive safely. Code § 46.2-100 includes within the definition of an “operator” of a motor vehicle any person who “is in actual physical control of a motor vehicle on a highway.” Our inquiry is therefore whether defendant was in actual physical control of the vehicle.

We recently reviewed our decisions considering variations on this theme in Nelson v. Commonwealth, 281 Va. 212 (2011).

In the present case, we do not reach the question whether the defendant took some action which, in sequence, would have activated the motive power of the vehicle. Its motive power was already activated.

While the officer watched, defendant took actual physical control of a fully operational motor vehicle in a highway, with its ignition key in the “on” position and its engine running. She thus met the statutory definition of an “operator” of a motor vehicle.

This court affirms the judgment of the Court of Appeals upholding the conviction. Appellant shall pay to the commonwealth $250 damages.

Rix v. Commonwealth, No. 101737, June 9, 2011; Va.Ct.App. VLW 011-6-094, 5 pp.

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Monday, June 27, 2011

Hearsay admission at revocation hearing was error

Hearsay Admission at Revocation Hearing Was Error

By Deborah Elkins
Published: June 23, 2011

Tags: Criminal, Judge Robert J. Humphreys, Virginia Court of Appeals

At a robbery defendant’s probation revocation hearing, the trial court violated defendant’s due process right to confront the witnesses against him when it admitted a detective’s hearsay testimony concerning two other offenses, one which never resulted in charges against the defendant and one where the charges were dropped; the Court of Appeals says that in non-trial proceedings involving an accused’s liberty interest, a balancing approach to admission of hearsay is the preferred test.

Hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court’s discretion, if the court specifically finds good cause for not allowing confrontation. Neither our Supreme Court nor this court have squarely addressed what constitutes “good cause” for denial of the due process right of confrontation in the wake of the many changes wrought by iiiCrawford v. Washington,iii 541 U.S. 36 (2004), and its progeny’s construction of the Sixth Amendment Confrontation Clause.

First, we must decide whether the evidence at issue constitutes “testimonial hearsay,” which in the wake of iiiCrawfordiii is a predicate to the applicability of the right of confrontation under any circumstances.

With regard to the first alleged crime that took place on Oct. 2, 2009, the detective spoke with the victim and his daughter by telephone four days after it had occurred and after the initial officers had done a full preliminary investigation in order to obtain the facts regarding the alleged robbery. On Oct. 8, 2009, the detective was called to come down to the police station regarding the second alleged crime that had occurred that day, and she stated that she met with the victim at the police station that day regarding the alleged home invasion robbery. When she spoke with the individuals, it was in the formal setting of a police officer investigating a past crime by seeking facts regarding each alleged robbery for the purpose of apprehending and prosecuting the perpetrator.

Also, the information was not provided during an ongoing emergency in order to enable police to meet the emergency and to understand what was happening; but rather, the detective was seeking to determine what had already occurred and to preserve it for later use in connection with court proceedings.

We conclude the detective’s testimony was testimonial hearsay, to which the limited 14th Amendment due process right of confrontation applies.

Under the “reliability” test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness, and the substantial trustworthiness test implicitly incorporates good cause into its calculus.

Here, the detective’s hearsay testimony regarding both alleged crimes based solely on her conversations with the witnesses does not rise to the level of demonstrable reliability required for admissibility.

Because the out-of-court statements made to the detective were neither inherently reliable by satisfying a firmly rooted exception to the hearsay rule nor were the statements corroborated by any other evidence presented at the revocation hearing, the hearsay evidence offered by the detective does not rise to the level of being so demonstrably reliable that defendant’s limited right to confrontation in a probation revocation hearing should have been denied.

Alternatively, under the balancing test, the court weighs the probationer’s interest in confronting a witness against the interests of the state in not producing the witness and the state is required to show good cause for denying confrontation. Here, the hearsay testimony was indisputably important to the circuit court’s finding of a violation. The prosecution did not meet its burden of establishing why it should be excused from producing the adverse witnesses for cross-examination, nor is the evidence demonstrably reliable as previously discussed. There is no evidence the commonwealth made any good faith attempt to subpoena the witnesses or otherwise produce them in court. In short, the record reflects no reason advanced by the commonwealth as to what governmental interest was served by not producing the witnesses against defendant. The circuit court could not and did not balance defendant’s interest in confronting the witnesses against him against any interest the commonwealth may have had in denying defendant that right.

Although the circuit court would not necessarily have erred had it applied the reliability test to the detective’s testimony, we think the balancing test ought to be the preferred test used in the courts of the commonwealth since it requires confrontation ab initio unless, and until, the commonwealth provides a sufficient reason to outweigh an accused’s interest in confronting and cross-examining the evidence against him. We hold that in non-trial proceedings involving an accused’s liberty interest, an approach that requires the commonwealth to explain and justify its failure to provide confrontation before considering the evidentiary admissibility of any testimonial hearsay is more consistent with the overall purpose of requiring an opportunity to confront testimonial hearsay as the default position for any due process analysis, and the analytical framework from the relevant case law.

In any event, in this case the circuit court did not apply either test in overruling defendant’s objection to the detective’s testimony. The record here fails to establish “good cause” for denying defendant an opportunity to confront and cross-examine the witnesses against him, and the circuit court erred in admitting the testimonial hearsay evidence offered by the detective.

Reversed and remanded.

Dissent
Haley, J.: I respectfully dissent. Courts have developed two tests to determine whether good cause exists. Virginia has adopted a reliability test that admits hearsay if it is sufficiently reliable. While one might appreciate the majority’s analysis of Crawford as applicable in the context of criminal trials, that analysis has no bearing on revocation proceedings. I would hold that the hearsay here was properly admissible under existing Virginia jurisprudence.

Henderson v. Commonwealth (Humphreys) No. 0688-10-4, June 21, 2011; Arlington County Cir.Ct. (Kendrick) Elizabeth L. Tuomey for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 011-7-210, 48 pp.

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Friday, June 24, 2011

A shaggy dog story

The emergency dispatcher must have done a double-take at this one: The frantic caller said that a vehicle carrying two dogs — and no humans — had just gone through an intersection and struck a tree.

Were the pooches behind the wheel? Were they escapees from some pound making a getaway? Robbers on the lam after knocking over a butcher shop?

None of the above, reports the Richmond Times-Dispatch.

The dogs were passengers in the car. Their owner parked her car at South Richmond convenience store and apparently didn’t put the brake on.

The car rolled across a parking lot, through an intersection and hit a tree. When cops arrived, the dogs were OK, which was good news for the owner. More good news: The cops won’t be filing any charges against her.

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Thursday, June 23, 2011

No coverage for basement water damage from cogged drain

No Coverage for Basement Water Damage from Clogged Drain

By Deborah Elkins
Published: June 21, 2011

Tags: Fairfax County Circuit Court, Insurance, Judge Randy I. Bellows, Virginia Circuit Courts

In light of plaintiff homeowners’ stipulation that surface water gathered in a well with a clogged drain but could not enter the drain and instead flowed into the homeowners’ basement, a Fairfax Circuit Court says damage to the home is not covered by the Water Damage Endorsement of plaintiffs’ homeowners policy, which does not cover the loss because the water did not enter the drain.

In June 2003, plaintiff homeowners purchased a Deluxe Plus Homeowner Policy from defendant Allstate to cover their home in McLean. They paid an additional premium to be covered by a Virginia Water Damage Endorsement.

Defendant insurance company denied the homeowners’ claim. The carrier maintained the loss to plaintiffs’ property was directly or indirectly caused by one or more of the sources described in Section I of the Homeowner Policy entitled “Losses We Do Not Cover Under Coverages A and B,” including loss caused directly or indirectly by flood, not limited to surface water; water that backs up through sewers or drains; water that overflows from a sump pump, pump well or other system designed for removal of subsurface water that is drained from a foundation area of a structure; and water below the surface of the ground, regardless of its source.

The Endorsement states that for an additional premium, the carrier would cover “direct physical loss to covered property… caused by water or any other substances which backs up through sewers or drains.”
Plaintiffs argue the Endorsement covers the loss incurred in this case because the damage to the basement was caused by a “backed up” drain.

Plaintiffs emphasize that the Endorsement modified the Homeowner Policy to provide coverage for water that “backs up through sewers or drains” which would otherwise be excluded under the Policy. In the alternative, plaintiffs argue the terms of their agreements with defendant are ambiguous at best and should be interpreted in their favor.

Defendant contends the Endorsement does not apply to these facts as the parties stipulated that no water ever entered the drain and therefore no water could have traveled “through” the drain. Defendant argues the water which caused the damage to plaintiff’s home was “surface water” or water “which is diffused over the surface of the ground, derived from falling rains and melting snow.”

The issue here is whether the source of the damage to plaintiffs’ property was caused by surface water, which is excluded from coverage, or by “water that backs up through sewers or drains” which is covered by virtue of the Endorsement. Resolution of this issue depends on the meaning of the phrase “back up through.” The court is not aware of any Virginia precedent that addresses this precise issue. However, other jurisdictions have interpreted similar insurance contracts and found that facts similar to the instant case fall under surface water exclusions rather than other provisions.

Virginia law clearly provides that courts must give words their “usual, ordinary and popular meaning” when interpreting insurance contracts. Under this principle, the court finds that the plain meaning of the Endorsement language requires that there must be some water in the pipe. The parties stipulated that water could not enter the drain, therefore, it is not possible that the water which damaged plaintiffs’ basement backed up through the drain or sewer. In this case, the heavy rainfall traveled as surface water across the completely clogged drain as if no drain existed. Moreover, if the surface water only partially contributed to the damage, the entire loss still would not be covered under the Homeowners Policy.

The court does not need to reach the issue of whether water must travel in the reverse direction of normal passage because the parties stipulated that no rain water entered the drain. However, the court notes that while the cases reviewed by the court reached different conclusions with regard to defendant’s argument that water must travel in the reverse direction in the pipe or drain, these cases were consistent in that the water occupied the pipe or drain before it caused the damage.

In sum, based on the cases reviewed by the court and the court’s own analysis of the plain meaning of water backing up through a sewer or drain, the court finds that at least some water must enter the drain or pipe for the Endorsement language to apply. Here, by stipulation of the parties, no water entered the drain. Therefore the damage to plaintiffs’ home falls under the surface water exclusion and defendant is not liable.

Summary judgment for defendant insurance carrier.

Dent v. Allstate Indemnity Co. (Bellows) No. CL 2010-3481, March 23, 2011; Fairfax Cir.Ct.; Kerrie C. Dent, pro se; Stephen A. Horvath for defendant. VLW 011-8-087, 7 pp.

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Wednesday, June 22, 2011

Bill: Warrant would be needed for GPS tracking

By Peter Vieth
Published: June 22, 2011

Tags: Constitutional, Criminal, Franklin County Circuit Court, Judge William N. Alexander II

Generic GPS navigation system device (3d illustration)

A bill introduced in Congress this month would put an end to a common police practice – use of a GPS tracking device without a warrant to follow a suspect.

The measure would force law enforcement to get a judicial OK before using such electronic surveillance.

Supporters say the bill protects basic privacy rights. Police and private investigators worry the federal bill would deny the use of a valuable tool for capturing criminals and monitoring other wrongdoers.

U.S. Rep. Robert Goodlatte, R-Va., an original co-sponsor of the bill, said using satellite technology to map someone’s whereabouts is akin to wiretapping, and police should be held to the same requirement for obtaining warrants. “You should have to establish probable cause that individual is involved in a criminal act,” he said.

There also is a push by major telecommunications companies to protect their customers’ sense of privacy, Goodlatte explained. “They are very concerned smartphones will lose some of their popularity because of fears police will use the technology to track what [users] are doing in their everyday lives,” he said.

The bill, H.R. 2168, would require police to go to court, show probable cause of a criminal connection, and get a warrant before obtaining geolocation information from devices like tablets, smartphones and GPS trackers.

Supporters say the measure would end confusion for prosecutors about when to approve warrantless tracking and for phone companies about when they should hand over customer tracking data to police.

In at least two cases, Virginia police have made arrests based in part on data from warrantless GPS devices planted on suspects’ vehicles. David Foltz, convicted in Arlington of abduction with intent to defile, was caught red-handed after police decided to follow him based on information from a GPS device police attached to his truck.

Now serving a life sentence, and with his appeal twice rejected at the Court of Appeals, Foltz has asked the Supreme Court of Virginia to hear his argument that his arrest was the result of illegal police snooping.

A Bedford man, meanwhile, faces burglary charges in two localities based in part on a GPS tracking device police placed on his car while it was parked on the street. Judges in both Salem and Franklin County rejected arguments from Keith Lamonte Hill that police violated the Fourth Amendment by using satellite tracking to follow his travels.

“The Court finds that the placement of the GPS is neither a search nor seizure,” wrote Franklin County Circuit Judge William N. Alexander II in an order denying Hill’s suppression motion. (VLW 011-08-113).

Among other factors, the judge noted the suspect’s vehicle was parked on a public street; officers did not have to enter the vehicle to place the tracking device; and, Alexander found, officers could have collected the same evidence by simply maintaining surveillance of the vehicle.

“I just think it is a total invasion of our privacy,” argued Carolyn H. Furrow. The Rocky Mount lawyer represented Hill at the suppression hearing. “Our daily travels are the essence of our life and our privacy,” she said.

Furrow said a warrant requirement would pose little hardship for police. “It would have been no harm for the police to get a warrant,” she said. “They had plenty of time to it.”

Law enforcement representatives and prosecutors dismiss the suggestion that a GPS tracker is inherently intrusive. “It almost by definition gathers information about public activities, as opposed to putting a wire in someone’s bedroom or something like that,” said Robert L. Bushnell, the commonwealth’s attorney in Henry County.

“This kind of technology used by police has the potential to do a great deal of good,” said Dana G. Schrad, executive director of the Virginia Association of Chiefs of Police. “It does help solve crimes.”

With or without a warrant requirement, Fourth Amendment search and seizure issues will continue to arise in GPS tracking cases, said R. Frances O’Brien. The Arlington County assistant commonwealth’s attorney won a circuit court ruling approving warrantless GPS-based evidence in the Foltz case. She has since spoken about the legal implications of the new technology to a gathering of Virginia prosecutors.

“It doesn’t change the basics of what police have been doing for years – determining whether a warrant is needed or not,” O’Brien said.

There has yet to be a case of police using GPS to trample the privacy rights of an innocent Virginia citizen, O’Brien noted. Foltz – the man she prosecuted – was an ex-offender whose past crimes matched a series of assaults on women in Arlington County.

“The Foltz case, I think, was not the poster child for the police running wild.”

While proponents of the GPS warrant requirement claim it would end confusion about standards for satellite tracking, O’Brien said the factual issues still would have to be decided by the U.S. Supreme Court.

Virginia private investigators are divided on the legislation, reports Ron McKown, executive director of the Private Investigators Association of Virginia. Accordingly, he said, the organization has taken no stand on the bill.

“We’ll just go with what the law says,” McKown said. If private use of GPS tracking is outlawed, he said, PIs will just return to the familiar “shoe leather” method of keeping track of suspected wrongdoers.

On the national level, a group called Investigative and Security Professionals for Legislative Action hopes to keep GPS among the tools available for PIs, at least in some cases. A recent update to members acknowledges the difficulties of opposing HR 2168 and similar bills, but the group notes it has had success on similar bills in state legislatures.

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Tuesday, June 21, 2011

Two-Year Limitations Valid on ‘Innocent Spouse’ Relief

By Deborah Elkins
Published: June 20, 2011

A wife legally separated from her husband waited too long to contest her liability on their joint tax return, and the 4th Circuit reverses a Tax Court decision that invalidated the IRS regulation that imposes a two-year statute of limitations on equitable relief for an “innocent spouse.”

The IRS first began collection efforts for a tax deficiency against husband Robert Jones. When he defaulted, the IRS began efforts to collect the deficiency from both Robert and his wife Octavia Jones. More than two years after the IRS first began its collection activities, Octavia Jones requested innocent spouse relief under IRC § 6015(f). While the IRS agreed Octavia would otherwise qualify for such relief, it denied relief because she made her request more than two years after the IRS began its collection efforts, and Regulation § 1.6015-5(b)(1) precludes relief where the applicant requests relief more than two years after the IRS initiates collection activities.

On Octavia’s petition to the Tax Court, that court ruled that the regulation was invalid for the reasons it had given earlier in Lantz v. Comm’r, 132 T.C. 131 (2009). The court granted Octavia relief from all tax liability in excess of $450. The Commissioner of Internal Revenue appealed.

Under Chevron USA Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), we conclude that IRC § 6015 is ambiguous with regard to any limitations period applicable to § 6015(f) and that the regulation, § 1.6015-5(b)(1), fixing a two-year limitations period within which to request relief under § 6015(f), constitutes a permissible interpretation of the statute.

In finding the regulation valid, we join the 3rd and 7th Circuits, the only other courts of appeals to have considered the issue. We do not consider the wife’s argument that she should be relieved from her late request for relief under the doctrine of equitable tolling, as she did not raise this issue before the Tax Court.

Because we conclude the regulation is valid, we reverse the judgment of the Tax Court and remand for further proceedings.

Reversed and remanded.

Jones v. Comm’r of Internal Revenue (Niemeyer) No. 10-1985, June 13, 2011; USTC; Teresa E. McLaughlin, USDOJ, for appellant; Timothy L. Jacobs for appellee. VLW 011-2-110, 13 pp.

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Thursday, June 16, 2011

Foreclosures fall for 8th straight month

By Les Christie June 16, 2011: 9:12 AM ET

Foreclosures fall again, but housing market isn't safe yet

NEW YORK (CNNMoney) -- Foreclosure filings experienced their eighth straight month of declines, according to RealtyTrac.

In May, filings fell 33% from a year earlier and 2% month-over-month, according to the online marketplace of foreclosed properties. The number of homes that were repossessed (referred to as REOs or real estate-owned properties) in May also declined to 66,879, down 3.8% from April and 29% year-over-year, the firm said.

The huge year-over-year drop in foreclosures doesn't necessarily mean the housing market is staging a recovery, however.

James Saccacio, the CEO of RealtyTrac, says the declines are likely due to lingering effects of the "robo-signing" scandal, which broke last September, when it was discovered that banks were playing fast and loose with foreclosure documents.

In some cases, it was found that banks brought foreclosure proceedings upon homeowners when they had no standing to do so. Sloppy paperwork sometimes made it impossible to tell which entity was the rightful owner of the mortgage notes.

To help fix the mess, foreclosure proceedings were temporarily suspended. Even though the suspension has since been lifted, the pace of foreclosures remains significantly slower as banks more thoroughly review each case to ensure they are being handled legally and properly.

Walk away from your mortgage? Get 'ruthless'

"Foreclosure processing delays continue to mask the true face of the foreclosure situation," said Saccacio. "Lenders are somewhat unevenly pushing batches of bad loans through foreclosure as they overhaul their paperwork and documentation procedures."

There's another factor at play, as well. The banks can't sell the homes they've already seized so they aren't as incentivized to repossess more homes.

"[There's] weak demand from buyers, making it tough for lenders to unload their REO inventory," said Saccacio. "Even at a significantly lower level than a year ago, the new supply of REOs exceeds the amount being sold each month."

The banks don't want to take on the expense of maintaining the homes -- property taxes, heating costs, repairs and insurance -- if they can't sell them quickly.

Selling off the inventory of repossessed homes is crucial to the housing market, said Jim Gillespie, CEO of Coldwell Banker. Sold at steep discounts, REOs compete with new homes for buyers and have severely depressed new home sales.

"That's a critical element for the economic recovery," said Gillespie. "If new homes were selling anywhere close to their levels of five years ago, it would add a full point to the GDP."

The steepest drops in filings have come from judicial states, ones in which the courts are involved in repossessions. In these states, where foreclosure proceedings are subject to the scrutiny of the courts, it appears banks are taking special care to make sure they've stamped out the last vestiges of the robo-signing issues.

Nevada, where most cases are handled outside of court, continued to be foreclosure central. One of every 103 households received a notice of some kind in May. However, that was an improvement of 23% compared with May 2010. Arizona, with one filing for every 210 households, and California, one for every 259, were second and third.

The judicial state of Florida, where the housing market is no better, has seen a much greater drop-off in filings over the past year, down 62%. It now has the eighth highest foreclosure rate, of one filing for every 461 households. A year ago, it was in the top four, along with the other "Sand States."

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Wednesday, June 15, 2011

Va. toughens laws on underage drinking

All drivers with a blood-alcohol level of .08 percent and above still would be subject to a DUI charge.

By Olympia Meola
Published: June 15, 2011

» 21 Comments | Post a Comment

Virginia is stiffening the penalties for underage drinking and driving.

Come July 1, drivers younger than 21 with a blood-alcohol level of .02 percent or higher would lose their license for one year if convicted, and pay a fine of at least $500 or perform 50 hours of community service.

The approach is intended to promote a zero-tolerance drinking-and-driving policy early by targeting a teen's ticket to freedom.

Fines levied for driving offenses are often dispatched by parents, said Kurt Gregory Erickson, president of the Washington Regional Alcohol Program.

"But a driver's license — there's not a teen on the planet who wants his mother to drive him on a date," he said.

A person weighing 120 pounds can reach a .02 percent blood-alcohol level after having one drink in one hour, according to the National Highway Traffic Safety Administration.

All drivers with a blood-alcohol level of .08 percent and above still would be subject to a DUI charge.

"I think that's too harsh, definitely," Colleen Trempe, 20, of Richmond, said of the new law. "I have a lot of feelings about the legal drinking age anyway. I think it should be 18."

Trempe, who has a slight frame, wondered how medicines such as cough syrup could affect blood-alcohol levels and whether it would be taken into consideration.

"If I get my license suspended, it would be a year of no working for me," she said.

But Connie Trinh, 18, of Centreville in Fairfax County, said drinking is illegal for those younger than 21 anyway, and that drinking and driving is "selfish" at any age.

"I do think it's a little harsh, but it's probably necessary," she said.

Shruti Paskar, 19, also of Centreville, said she thinks it will take a while to become a deterrent for young drivers because those who engage in the practice now aren't likely to stop.

Del. Bill Janis, R-Henrico, a father of two teenagers, first introduced the bill in 2008. It's also meant to bring closer the punishments for underage possession and underage drinking and driving.

"We want to send a message at the earliest possible point when somebody gets in trouble with the law along these lines that this is serious," Janis said. "And we felt like expanding the penalties so that they were at least comparable with the penalties for simple possession (was) just common sense."

Janis' bill passed in 2008 but carried a clause phasing it out in 2010 because of concerns that the state could lose federal law-enforcement funding if the Office of Juvenile Justice and Delinquency Prevention views it as a "status offense," meaning it creates a crime for a juvenile that would not be a crime if committed by an adult.
Janis reintroduced the measure as permanent legislation during the 2011 General Assembly session.

Sen. David W. Marsden, D-Fairfax, who carried the measure in the Senate, said he was told by the Office of Juvenile Justice and Delinquency Prevention that it did not foresee the change affecting funding.

"These drivers are newer, much more susceptible to alcohol even at lower blood-alcohol levels, having a dramatic impact on them physiologically," Marsden said.

Chesterfield County Deputy Commonwealth's Attorney M. Duncan Minton Jr. noted that the evolving drinking laws reflect how seriously the matter is taken.

"Frankly, 20 years ago, if you got picked up after you were drinking a little bit you might have gotten a ride home by the police officer," he said. "And societal attitudes have changed. They no longer see it as kind of a nuisance. They see it as a real danger."

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Monday, June 06, 2011

Bus Rider Can Sue School Board, Not Board Employees

By Deborah Elkins
Published: May 17, 2011

Tags: Judge Samuel G. Wilson, Negligence, U.S. District Court - Western District

A Roanoke U.S. District Court says a man suing for injuries he received as a teenager when he exited a school bus and was struck by a driver who failed to heed the bus driver’s signals to stop, can sue the school board but not the bus driver and the three school board employees who planned the bus driver, who all have immunity.

Plaintiff alleges he was riding the bus home after dark, from a school activity. As the driver neared the stop closest to plaintiff’s home along a curve, he requested the driver to drop him off on the opposite side of the highway. Although substitute drivers had occasionally done so at plaintiff’s request in the past, defendant driver refused. She activated the bus’s warning devices, stopped and plaintiff exited. As he crossed the highway, he was struck by a pickup truck driven by defendant Charlie Moore, who had failed to heed the school bus warning lights. Plaintiff received severe and permanent injuries.

Under Va. Code § 22.1-194, plaintiff may sue if school board has an insurance policy on “a vehicle involved in an accident.” Here, the school board admits its school bus was covered by an insurance policy. The court turns to § 22.1-194’s “involved in an accident” in the context of the statute. Although the Virginia Supreme Court has not expressly defined the meaning of the term “involved in an accident” in the context of § 22.1-194, it has provided implicit guidance as to its meaning, and that guidance counsels that the school bus from which plaintiff alighted was “involved in” plaintiff’s accident and the school board is not immune from suit here.

Plaintiff also sues the school bus driver who refused to make a turn in order to drop plaintiff off on the side of the road where his home was located. The court agrees with defendant bus driver that she has sovereign immunity as plaintiff has not pleaded facts to support his claim that she was grossly negligent. The bus driver stopped at the designated place along her route and activated the bus’s warning lights. Defendant was operating the bus for a governmental purpose, and not as a part of a routine errand. She was performing a discretionary, non-ministerial, governmental function and is immune from claims for ordinary negligence.

The court also dismisses plaintiff’s complaint against the three school board employees who planned the bus route. There is nothing that remotely suggests the three employees did not exercise discretion in planning the school bus route. They are entitled to immunity for ordinary negligence in planning that route. Though plaintiff alleges the stop was not located where the bus could be seen for a safe distance in both directions, as required by the board’s own regulations, there is nothing in his complaint suggesting the three defendant route planners considered the stop to be unsafe. Even the failure of a government official to follow all applicable regulations does not necessarily mean the official’s conduct was grossly negligent.

The court denies the school board’s motion to dismiss, but grants the remaining defendants’ motions to dismiss.

Roach v. Botetourt County School Board (Wilson) No. 7:10cv00378, Dec. 29, 2010; USDC at Roanoke, Va. VLW 011-3-018, 12 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, June 02, 2011

Upfront Lump Sum Payment or Alimony? Why Some NFL Ex-Wives Are Now Smiling

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For years, they undoubtedly listened to their husbands dissect the finer points of an on-side kick, zone coverage, or the blitz.

But now, many former NFL wives may need to start drawing up a few special plays of their own.

For months, the National Football League owners and players have been locked in a seemingly intractable labor contract dispute. If the two sides can’t agree to a resolution, NFL players soon may be without a paycheck –and that means many NFL ex-wives are now wondering about the future of their alimony payments.

According to an article at Bloomberg.com, NFL players are already lining up at their attorneys’ offices so that they can get child support and alimony payments lowered to reflect diminished incomes IF the contract battle puts the brakes on the NFL season.

Do the players’ ex-wives have any recourse? What can you do if you find yourself in a similar situation?

What happens if your ex-husband’s financial status changes, and he’s not able to fulfill his alimony obligations?

In order to address these questions, let’s first review some basic information about alimony.

Alimony (which is also called spousal support or maintenance) is the term that describes the payments made from one spouse (the “moneyed” spouse) to the other (the “non-moneyed” spouse) after the divorce is finalized. The fundamental purpose of alimony is to provide economic support to the dependent spouse and to allow the “financially disadvantaged” spouse to continue a comparable standard of living that he/she enjoyed during the marriage.

Although a variety of alimony options exist, for the purposes of this article, I’m going to discuss only the following two:

Regular Alimony (also known as Periodic Alimony)
Upfront lump sum payment in lieu of alimony

And, as you might imagine, there are advantages and disadvantages to each.

Regular alimony is paid in established intervals (typically monthly). This regular payment schedule usually continues per the divorce settlement agreement until: 1) the spouse who’s receiving it remarries (or, in some cases, cohabitates); 2) either party dies (keep reading to find more details about this); 3) either party goes to court to seek a modification based on a substantial change in financial circumstances.

So, you see, factor #3 says it all:

Yes, regular alimony payments can be modified (up or down).

As some NFL ex-wives may soon discover, a judge can reduce alimony if there is a significant negative change in the payor’s financial circumstances.

Do these NFL ex-wives have any recourse?

They do. But, their options are limited. Any modifications to alimony, child support and/or other divorce-related payments must be approved by the court. However, if the judge agrees that the ex-husband can no longer afford to pay the current amount of alimony, that judge can decide to reduce those required payments.
What would I recommend in a situation like this?

As is so often the case with divorce –and with the NFL! –the best defense is usually a good offense. In other words, it’s best to build a qualified divorce team from the onset to help you analyze and consider all the options available to you before you agree to any divorce settlement.

Since my firm exclusively represents women, it is our belief that an upfront lump sum payment in lieu of alimony is, in the vast majority of cases, the preferred option if the woman is to be the recipient of alimony. Of course, before making a recommendation like this, we must be certain that:

There are sufficient assets available to make such a lump sum payment.
The recipient is not a spendthrift.
The recipient has no lawsuits pending against her.
The recipient has good continuing financial advice on asset protection and how to make the lump sum payment, along with the rest of her settlement, last as long as possible.

An upfront lump sum payment in lieu of alimony is a one-time payment of a fixed amount. Obviously, any NFL ex-wife who agreed to a lump sum payment is not particularly worried now about a potential drop in her ex-husband’s income. She has already received everything she is entitled to and her ex-husband cannot come back to request any modifications. There are no “do-overs” for either party.

Because the entire payment is made all at one time, an upfront lump sum payment requires careful, deliberate financial management. As mentioned above, you will have to handle the one-time payment appropriately so that it sustains your lifestyle long-term.

The Divorce Financial Strategists™ here at Bedrock Divorce Advisors™ are careful to discuss each of these alimony options with all of our clients and their divorce attorneys because we’ve seen how devastating it can be for a woman to lose her alimony income.

What’s more, in those cases where there are periodic alimony payments, we always recommend that our clients establish a life insurance policy to help secure those alimony payments should their ex-husband die. This kind of life insurance policy would enable her to receive a tax-free, lump-sum payment of what she would have received over time from her alimony, child support and/or other divorce-related payments.

It’s best to establish this life insurance policy before the divorce has been finalized. Keep in mind: After the divorce, your ex-husband may refuse to cooperate in getting the required medical exam. Or, you may discover during the process that he is uninsurable. Either way, you need to know this before the divorce is settled so that, if necessary, you can find alternate ways of securing your divorce settlement payments.

In short, build a solid divorce team, and know the playbook inside and out. You don’t ever want to rely on a Hail Mary pass for a secure financial future.

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Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC (http://www.BedrockDivorce.com), a divorce financial strategy firm that exclusively works with women, who are going through, or might be going through, a financially complicated divorce. He also advises women business owners on what steps they can take now to “divorce-proof” their business in the event of a future divorce. He can be reached at Landers@BedrockDivorce.com.

All articles/blog posts are for informational purposes only, and do not constitute legal advice. If you require legal advice, retain a lawyer licensed in your jurisdiction. The opinions expressed are solely those of the author, who is not an attorney.

Follow Jeffrey A. Landers on Twitter: www.twitter.com/Bedrock_Divorce

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Wednesday, June 01, 2011

Family Law -- Pro Se Errors Defeat Appeal of UCCJEA Dismissal

Pro Se Errors Defeat Appeal of UCCJEA Dismissal

By Deborah Elkins
Published: May 16, 2011

Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

The Court of Appeals summarily affirmed a trial court’s dismissal of motions to modify custody and support orders for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) where the pro se appellant’s procedural errors preclude consideration of his assignments of error.

In 2008, the trial court awarded appellant joint legal custody of two children and physical custody of one minor child now living in Florida. The trial court entered a child support order in 2009 and in 2010 the Juvenile and Domestic Relations District Court at the parties’ request entered orders regarding custody and support. The trial court on appeal vacated these orders for lack of jurisdiction under UCCJEA but awarded attorney’s fees and costs to the guardian ad litem.

Appellant assigns six errors, five of which cannot be considered.

On the jurisdictional issue, the trial court correctly applied the statutes. Neither parents nor the minor child have lived in Virginia for years. The statutes require continuing presence in Virginia, jurisdiction for an initial custody determination (Va. Code § 20-146.12), or abuse or abandonment for temporary emergency jurisdiction (Va. Code § 20-146.15). Virginia is not the minor child’s “home state” as defined in the Act.

Appellant’s remaining five assignments fail for noncompliance with our rules. Townes v. Commonwealth, 234 Va. 307 (1987), holds that pro se litigants are no less bound by the rules of procedure and substantive law than a defendant represented by counsel. Appellant did not file a motion to reconsider giving the trial court a chance to rule on his objections asserting ex parte communications with the guardian at litem, to the award of attorney’s fees and costs and lack of specificity what orders are in effect. Appellant did not raise his argument based on the Uniform Interstate Family Support Act in the trial court. Defendant cites no authorities supporting his assignment of error to the denial of his motion to show cause. Appellant claims that in 2000 the other parent moved the other child out of Virginia without complying with the divorce decree requirement for 30 days prior notice to the JDR court. We find appellant’s failure to comply with Rule 5A:20 (e) is significant so we will not consider this assignment of error.

Sowers v. Walker (Per Curiam) No. 2339-10-3, May 10, 2011, Salem Cir. Ct. (Swanson) Thomas Lee Sowers, pro se; for appellant. VLW 011-7-120(UP), 6 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474