ANALYSIS OF FEBRUARY 5, 2008 CAV OPINIONS

[Posted February 5, 2008] Here’s my take on the opinions handed down by the Court of Appeals of Virginia this morning. Today is a good day for the Attorney General’s Office, as all three decisions are in criminal cases, and the court affirms all three convictions.

Before we get to the analysis, here’s a quick reminder – the new font requirements for filings in the Supreme Court went into effect last Friday, so if you haven’t switched to 14-point type, and either Courier, Arial, or Verdana, then you need to make that change immediately. One effect you’ll quickly see is that the type takes up significantly more space, so if you’re accustomed to squeezing your brief in order to meet the page limits, your job will get a lot tougher. (Hint: Eliminate the string cites; resist the urge to overkill a straightforward point; and be ruthless in editing down your initial draft.) There are also changes in the number of copies to be filed and what goes into your signature (you now have to include your State Bar number), and there is now a requirement for filing an electronic copy of your brief and appendix.

From what I can see, the rule change only applies in the Supreme Court of Virginia; there is as yet no parallel requirement in the Court of Appeals.

Criminal law

The burning social question of whether a BB gun is a firearm gets an informative explanation today in Wubneh v. Commonwealth , involving the use of such a gun in the commission of a robbery. There’s no doubt that Wubneh committed the robbery, or that he possessed the BB gun at the time, or that he “used” it (more like a club than a gun, since he hit the victim with it several times but evidently never pulled the trigger). The only question is whether that gun is a firearm or not.

In a 1997 case, the Court of Appeals had ruled that a BB gun did, indeed, qualify as a firearm for the purposes of this statute. That CAV decision was based on a 1980 Supreme Court ruling. The trial court had followed those decisions in submitting to the jury an instruction that defined the word firearm to include things like BB guns, and today the Court of Appeals affirms the giving of that instruction. So why is this order published?

Because of a clever argument made by the defendant; that’s why (at least in my opinion). The defendant contended that the 1980 Supreme Court ruling had been overruled in 1994, so it was no longer controlling. But the 1994 ruling doesn’t go as far as the defendant said it did, the court finds today. It’s still the law that a firearm includes a device that gives the appearance of a plain old gun, and can shoot projectiles. This would almost certainly exclude slingshots from the reach of the statute (because although they can shoot projectiles, they don’t look like the kind of gun that uses gunpowder), but it would include BB guns. (The court observes in a footnote that toy pistols, like cap guns, don’t qualify, since they don’t shoot projectiles.)

There’s an interesting procedural angle in Brown-Fitzgerald v. Commonwealth , which was a DUI prosecution. The driver was asthmatic, and needed to use an inhaler twice after being arrested, so the police offered her a blood test, which she agreed to take.

But we never get to find out what the test results were, since the trial court excluded it. The driver had argued at trial that she should have been offered a breath test, and that in order to warrant only a blood test being offered, the prosecution had to show that she was physically incapable of taking the breath test. The trial court gave her half a victory, ruling that since the Commonwealth didn’t prove her incapacity to take the test, the results of the blood test would be inadmissible. But the court rejected a defense motion to dismiss the whole case for failure to offer the breath test. The court then convicted her based only on the physical evidence.

On appeal, the dispositive issue is whether the failure of the police to offer the driver a breath test bars prosecution. Once upon a time, under a previous incarnation of the implied consent statute, it probably did; that version stated that the accused was “entitled to” a blood test. The statute got two overhauls in the interim; the first added a breath test, but deleted the “entitled to” language. The second, producing the current version of the statute, requires only that an arrestee “shall submit to a breath test” [or a blood test if that’s the appropriate one].

The question is whether this language mandates that such a test be offered, as a condition of the prosecution. The court finds today that it does not. Nowadays, if the Commonwealth wants to prosecute a given driver based solely on physical evidence, it can do so, and the driver has no right to demand that she be given a test of either ilk to prove her innocence. Finding that this driver “was never denied a statutorily mandated test,” the court affirms.