THE WEEK’S APPELLATE DEVELOPMENTS

 

Here is a quick report on some of last week’s appellate developments acoss the Commonwealth.

Can it be that this wasn’t decided before?

On Tuesday, the Court of Appeals handed down an opinion that most traffic practitioners must have thought was well-wettled law by now – whether Virginia’s proscription of unreasonably refusing a breath test after having been arrested for DUI is unconstitutional. The case is Rowley v. Commonwealth.

Like many thousands of other DUI suspects before him, Rowley failed several field sobriety tests and was arrested on suspicion of drunk driving. When the arresting officer offered him a breath test, he said no. Under familiar protocol, he was then charged with refusal, an offense that carries the exclusively civil penalty of suspension of one’s license.

Unlike many of his predecessors, Rowley actually beat the DUI charge, but was unsurprisingly convicted of refusal. He appealed, and claimed that the statute was unconstitutional, since it called for self-incrimination – a part of his “self”, the breath he exhaled, was to be used to incriminate him. The Court of Appeals was unsympathetic; pointing to a line of cases stretching back to the US Supreme Court’s ruling in Schmerber v. California in 1966, it found that the Fifth Amendment prevents compelled testimonial evidence, and one’s breath is not testimonial. In Schmerber, the high court had ruled that the state could compel a driver to give a blood sample, and analytically, a breath sample was no different.

The court also rejects Rowley’s contention that the breath sample request was an unreasonable search or seizure. In doing so, it points to the Implied Consent statute, noting: “The act of driving constitutes an irrevocable, albeit impled, consent to the officer’s demand for a breath sample.” Under these circumstances, it cannot be unreasonable to demand what Rowley had consented to give.

When I studied Schmerber back in law school, I recall wondering what writ the defense had argued the government should have obtained in order to compel the blood sample. The best I could come up with was a writ of habeas corpuscle. (If you are allergic to bad puns, you are visiting the wrong web site.)

How to avoid a Booker reversal, in one easy lesson

Ever since the US Supreme Court handed down US v. Booker last year, district courts have seen a lot of familiar faces. When the high court ruled that the federal sentencing guidelines were advisory only, it sent a slew of convicts back to court for resentencing before district judges who had previously figured that they were practically bound to sentence within the guidelines calculations.

Joseph Junior Revels managed to find himself on the wrong end of a federal indictment for possessing a firearm after having been convicted of a felony. He pleaded guilty and got a guidelines calculation, including a four-level enhancement, of 100 to 120 months. At the sentencing hearing, the court gave him both barrels, so to speak – the maximum 120 months. Revels prepared to appeal his sentence.

But the district judge had read the Fourth Circuit’s 2004 opinion in US v. Hammoud, handed down before Booker. In Hammoud, the Fourth saw the handwriting on the wall, figuring that the Supreme Court’s decision (in Blakely v. Washington) to strike down a state’s mandatory sentencing guideline using facts not proven to a jury or admitted by the defendant, would in short order be applied to federal sentencing guidelines as well. Thus, in Hammoud, the Fourth gently suggested to its district courts that they announce an alternative sentence, treating the guidelines as advisory only.

Having read this precaution, the district judge followed the advice and told Revels, before he was taken away, that he would sentence him to the same 120 months if the guidelines were advisory only. At this, Revels no doubt cocked his head and wondered, Now why would his Honor do that?

On May 1, the Fourth hands him the answer to this musing; the sentence is affirmed, in US v. Revels, on the basis of harmless error. The majority of this panel (Judges Wilkinson and Michael) agree that Booker error has occurred, but in light of the district judge’s wise precaution, it finds that “No guesswork on our part is thus required to conclude that any Booker error did not actually affect the outcome of the proceedings.” Accordingly, ten years is ten years, and Revels doesn’t even get to say hello to the district judge again.

Judge Luttig, concurring in the judgment, takes a harder, case-specific line toward Revels’s sentencing. He believes that Revels admitted the fact in issue, so the sentencing wasn’t erroneous in the first place. He points to the colloquy at sentencing, when the court asked if Revels had “any objections to anything contained or omitted from the [presentence] report.” Revels replied tersely, “No sir.” While the majority finds that this is insufficient to constitute a formal admission of the otherwise unproven fact, Judge Luttig believes it does just that, by describing a fact that the defendant has no objection to.

The result of this is that a defendant cannot be held to have admitted the facts in a PSR merely because he says he has no objections to it. This is admittedly a close call – the majority opinion says so – but this ruling is probably the only silver lining in this case for the defense bar.

Report from Danville

As noted here, the second appellate practice symposium was held May 2 in Danville, in conjunction with the State Bar’s Solo and Small-Firm Practitioner Forum. My Appellate Practice Subcommittee colleague George Somerville joined me in hosting this event, the topic of which was appellate oral argument. We had a larger than expected group of about 30 lawyers (the symposia are designed to include no more than 25, but there were several onlookers who came in to observe the discussion). APS members John Eure of Roanoke and Joe Winston of Richmond also lent their expertise to the group, in which experienced appellate practitioners talked shop with their counterparts in the trial bar. One particularly welcome special guest was Scott Moore of the Supreme Court’s Chief Staff Attorney’s Office. She added a significant number of “inside insights” to the many interesting topics we discussed.

The Litigation Section’s Board of Governors has given the APS approval to host two such symposia each year. We plan to host them in smaller venues (since we neither require nor can accommodate large audiences) around the Commonwealth, with a handful of APS members available at each program to familiarize trial lawyers with various appellate topics. We tentatively plan to make the next symposium in Southwestern Virginia (if you thought Danville WAS in Southwestern Virginia, go get out a map) this autumn, most likely on appellate briefwriting. I’ll announce more details as plans firm up.

Now, THIS is a rocket docket

The Supreme Court of Virginia has already decided two appeals that were argued in the April session, just 16 days before. Both were decided by unpublished order, announced on Friday. In one, Baker v. Endebrock-White Co., the court approves the use of an affidavit for service on the Secretary of the Commonwealth, despite the fact that, of the two choices for service on the Secretary, neither one was checked off on the affidavit. The court finds that despite this omission, the affidavit complies with the statute. The other case is Farm Bureau Ins. v. Stachnik. The court dismissed this appeal as being improvidently granted, finding that the plaintiff, who prevailed below, won on two alternate theories, and the defendant appealed only one of those. Since there was an independent ground for the judgment, and that ground was not in dispute in this case, there was nothing for the court to adjudicate without entering the forbidden field of advisory rulings.

You won’t have to look too carefully to note that neither of these case names includes a hyperlink. That’s because the rulings come by unpublished orders, neither of which will appear in Virginia Reports. Nevertheless, they’re still good law in Virginia, and may be cited as authority for the principles they adjudicate. If any of my readers would like copies of either or both of these orders, I will be happy to forward them.