More Clarification - Please

[Leah Riverton]

I really am hoping someone can help me. I would like to have more clarificaiton on the Virginia Statute 18.2-270 for Driving While Intoxicated.

A friend of mine was arrested in July of 1999 for a D.U.I. and convicted in September of that same year. He then was arrested for D.U.I. on Memorial Day weekend 2000. At the time of his third arrest on July 2nd 2000 he had NOT been convicted for his arrest over Memorial Day weekend but is being charged with a 3rd DUI.

He went to trial for his Memorial Day offense where the judge tried and convicted him as a first offender on August 21, 2000 (his charge was reduced back to a first offense).

According to what I have been reading about the Virginia Law, it states that any person convicted of three or more offenses within a ten year period is guilty of a Class 6 felony. My question is this: IF at the time of his arrest in July he only had ONE prior conviction, why then is he being charged with his 3rd?

Also, I noticed there are two statutes one effective until October 1 2000 and the other going into affect October 1, 2000. Which one would apply to him? Does it go by when you are arrested or when you are tried?

He went to all his pre-court hearings for the 3rd in October.

Can the Court System use a post arrest offense (Memorial Day weekend) against him when clearly at the time of his July arrest he only had one conviction?

Thank You!

 

[lawrat]

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

There are ex post facto laws that prevent a person from being tried based on new laws into effect after he was charged, etc.

But, as far as your other questions go: it all depends on how the virginia penal system views arrests/charges/convictions. I..e there is a record showing 1 conviction and 1 charge before his last memorial day fiasco: officer sees these two on the read out -- thus gives him a third offense, Judge brings second one down to a first offense (did he/she know of the 1st conviction? has it been expunged?) etc.

These are questions this person's attorney will need to research and possibly bring up in court as defenses to the more serious felony classification.

 

[Leah Riverton]

Thank you for responding!

Upon his charge being reduced for his Memorial Day "event", the judge did know of his 1st D.U.I. And with the help of his then lawyer, they were able to reduce the charge back down to a first.

When he was arrested again in July, he was camping in Page County Virginia. There were two campsites side by side, he having the bigger one decides to go and offer the other family his campsite because the children/dogs were running through his.

He and I drove back up there a few weeks after his arrest. What happened was in order for him to turn his rather large Toyota Van around and continue to another campsite further up the mountain, he had to drive down to a little gravel parking area (1.5 miles North of the main road 211). That's where the State Trooper was conducting a check of the vehicles. In court, the Trooper said it was federal land on which they have jurisdiction of. But what constitutes federal land and how can we determine if that exact spot is federal land?

He told the Trooper all he was trying to do was go back up the mountain to find a better campsite.

When asked by the Trooper if he had any priors, my friend told him it would be his third and they processed/charged him accordingly without looking at his record to see that at the time of arrest he only had one prior conviction and one pending charge. If they had looked at his record that night, shouldn't they have charged him with only a second based on his record?

One other thing I wanted to ask: Before going over to talk to the other campers, since he did have a few beers, he used some breath drops - does that affect your BAC level in any way? Just curious.

Thanks again!