Reckless Driving DUI Lynchburg Fairfax County Improper Lane Charge

Reckless Driving DUI Lynchburg Fairfax County Improper Lane Charge

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

While both the underlying charge and the ultimate offense of conviction involved driving offenses, neither was a lesser-included offense of the other. Thus, a court could not refer back to the original underlying charge and see within it the elements of the offense of conviction on appeal.

The defendant was stopped on a public roadway of Fairfax County and given a summons for Improper Lane Change. The parties do not dispute that, at the close of all the evidence, the defendant was not convicted of Improper Lane Change but, rather, was convicted of Failure to Give Full Time and Attention to the Operation of the Vehicle, in violation of section 82-4-24 of the Fairfax County Code.

Here, the defendant was not convicted of a lesser offense because, as the Commonwealth concedes, there is no support for the position that Failure to Give Full Time and Attention is a lesser included offense of Improper Lane Change. 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. In Commonwealth v. Sumner, 66 Va. Cir. 266 (2004), Circuit Court Judge Robert P. Doherty, Jr., was faced with essentially the identical situation now before this Court. As described by Judge Doherty, "the General District Court [judge], sua sponte . . . and without the [consent] of the parties[,] . . . amended a driving under the influence warrant to reckless driving and convicted the defendant." Id. at 266. The Court observed when it amended the warrant from DUI to reckless driving, the District Court changed the nature and character of the offense. Reckless driving is not a lesser included offense of DUI. It is instead a separate and distinct crime. Spickard v. City of Lynchburg, 174 Va. 502, 6 S.E.2d 610 (1940). Without the issuance of a new warrant, the Defendant could not be tried or found guilty of reckless driving.

The Court allowed defendant's motion to dismiss.

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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