[Posted December 15, 2010] Yesterday, while I was inexplicably in a trial court the whole day, the Court of Appeals handed down two published opinions in criminal appeals. (There were none last week, in case you thought you missed them.)

Criminal-law practitioners probably know well the contours of the drug-possession statutes, which forbid possession of controlled substances except by those persons with a valid prescription. The appellant in Williams v. Commonwealth unquestionably possessed a prescription drug (Oxycodone). The only question was whether he had a prescription or not.

Well, actually, that misstates “the only question” slightly. The real issue in this appeal is who has the burden of proof on the existence, or not, of the prescription. If the absence of a prescription is an element of the offense, then the Commonwealth has to establish that absence in its case in chief. If it’s an affirmative defense, then the defendant has to make that showing.

Criminal-defense lawyers and civil libertarians are no doubt licking their metaphorical chops at this question. As we know, the burden of proving all the elements of the offense never shifts to the defendant in a criminal case; given the presumption of innocence, no one in America has to prove that he’s innocent.

So you’ll have the benefit of the legal landscape, here are the two relevant statutes, from a footnote in yesterday’s opinion:

Code § 18.2-250(A)

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

Code § 18.2-263

In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this article or of the Drug Control Act (§ 54.1-3400 et seq.), it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this article or in the Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.

You’ll note that the second statute places the burden on the defendant to prove that he falls within an “exemption” granted in any criminal statute. The question is, can the statutes do that within the constraints of the presumption of innocence?

If you’re struggling with this, let’s go straight to the conundrum that resolves this issue. As the court sets out in the opinion, if the Commonwealth had to prove that the defendant did not have a prescription, how would the prosecutor ever go about doing that? Which witness would you call? Theoretically, that would include every doctor in the United States who’s authorized to write prescriptions. As the defendant’s lawyer admitted in oral argument, it would as a practical matter be impossible for the government to convict anyone if this burden were on the prosecution.

Logically, the fact of whether a person has a prescription or not is within the knowledge of the defendant. The court thus determines that the second statute is a constitutional allocation of the burden, finding that the existence of a prescription is an affirmative defense so the defendant has to prove it. Despite the fact that the prosecution in this case never offered any affirmative proof of the absence of a prescription, the conviction is affirmed.

Do you know the difference between a bail bondsman and a “bail enforcement agent”? Neither did I, until I read the opinion in Collins v. Commonwealth, where the court spells out that the latter group includes what we know of as bounty hunters. (Dogfans already know this.)

Collins was a bondsman licensed in North Carolina who made two mistakes. The first mistake was in seizing an unwanted man. I mean that not in the sense that the seize-ee was unloved; I just mean that he was the wrong guy. Pointing a Glock at the object of his intentions, he apprehended the aforementioned wrong guy, exclaiming, “I believe you see what it is m*****f***, you know what it is.” There was a short segment of Dog-style manhandling in the immediate wake of this.

This strong language may or may not be problematic with the Right Guy, but when used (in conjunction with the Glock) toward the wrong guy, it turned out to be a bit more than the seize-ee would stand for. He quickly persuaded Collins that he was indeed the wrong guy, and the detention ended after what must have been a very tense few minutes.

Collins’s second mistake, by the way, was in attempting this seizure in Virginia. North Carolina licenses, it seems, don’t travel well across the border. That’s relevant because in the ensuing prosecution for attempted abduction, Collins defended by claiming that he had (or at least perceived that he had) a right to apprehend somebody, and so he was privileged from prosecution, since the statute doesn’t apply to someone who has “a legal justification or excuse” for the seizure.

Once upon a time, under the common law, that may well have been true; but the Court of Appeals finds that Virginia’s statutory scheme for licensing bondsmen and bail enforcement agents has abrogated that common law. At this point in the course of our civilization, you need a Virginia license in order to apprehend someone here with lawful justification; a North Carolina guy who comes to Virginia and seizes even a genuinely wanted man commits an abduction. Collins’s convictions for attempted abduction and a companion firearm charge are affirmed.

Collins makes one intriguing argument that might have gained traction: He contends that if Virginia won’t authorize seizures of fleeing felons, “then fugitives from across the country will rush to Virginia to avoid capture.” The court brushes this aside by noting that Virginia does permit such a seizure by someone holding an extradition order from another state, or by a bondsman licensed in Virginia. The latter arrangement might have required Collins to share his fee, something he may not have wanted to do. In retrospect, of course, it would have saved him a world of trouble, not to mention a felony conviction that might theoretically damage his ability to get licensed elsewhere.