Improper Lane Change 46.2-804(2) Virginia Fairfax County 82-4-24 Failure To Pay Full Time Attention

Improper Lane Change 46.2-804(2) Virginia Fairfax County 82-4-24 Failure To Pay Full Time Attention

Commonwealth v. Dipietro (Va. Cir. Ct. Apr. 22, 2009)

Defendant was charged by summons with improper lane change. He appeared for trial before the General District Court and is tried on the same. At the close of the trial, and without his consent, he is convicted for failure to give full time and attention to the operation of the vehicle, which is not a lesser included offense. Significantly, at no point prior to trial was a new warrant issued by the General District Court in accordance with the procedures described in Virginia Code Section 16.1-129.2. He appealed his conviction which raises the question: whether the crime which he was convicted is a lesser included offense of with which he was charged?

At the onset, the court opined that where a defendant is acquitted of an offense in the General District Court, but convicted of a lesser included offense, he cannot be retried on the greater offense in the Circuit Court. Nevertheless, the fact that the defendant was tried on Improper Lane Change but never convicted of Improper Lane Change, but rather of a different offense, constitutes an implicit acquittal on the charge of Improper Lane Change. Although the Court could find no appellate decision precisely on point, the principle that "conviction in district court for an offense lesser included in the one charged constitutes an acquittal of the greater offense. . .," Kenyon v. Commonwealth, 37 Va. App. 668, 674, 561 S.E.2d 17 (2002), applies with equal force where a defendant is charged with, and tried upon, one offense but convicted of another offense. Thus, the defendant cannot be tried in the Circuit Court on the offense of Improper Lane Change. That leaves the question of whether the defendant can be tried in the Circuit Court on the offense of Failure to Give Full Time and Attention. The Court concludes that he cannot, for the reason that there is no charging instrument properly before this Court upon which the defendant could be tried. In essence, the defendant's appeal of his conviction for Failure to Give Full Time and Attention wipes out that conviction, and leaves the defendant to be tried on the offense with which he was charged. However, the offense with which this defendant was charged was Improper Lane Change; the fact that he was implicitly acquitted of that charge prevents his retrial on that offense in the Circuit Court. As to the charge of Failure to Give Full Time and Attention, he was neither charged with that offense nor tried on that offense. Thus, there is no charge before the Court upon which this-defendant may now be tried in the Fairfax Circuit Court.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

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