Virginia Misdemeanor Felonies Traffic Infractions Juvenile Improper Driving

Virginia Misdemeanor Felonies Traffic Infractions Juvenile Improper Driving

Commonwealth v. Warwick, 78 Va. Cir. 336 (Va. Cir. Ct. 2009)

The Commonwealth of Virginia asked the Court to impose a $ 500 fine, suspend that fine in its entirety, and order Defendant to pay restitution in the amount of $ 29,813.76 to the victim.

Code of Virginia 19.2-303 governs the ordering of restitution in a case where the sentence is suspended. Va. Code 19.2-303 (2008) inter alia reads, after conviction . . . the court . . . may, as a condition of a suspended sentence, require the defendant to make at least partial restitution to the aggrieved party or parties for damages or loss caused by the offense for which convicted. . . ." The court explained the nature of the offense. The General Assembly makes a clear distinction between "offenses" (i.e. felonies or misdemeanors) and "traffic infractions"; thus, traffic infractions are not offenses and therefore do not fall under Va. Code 19.2-303. Va. Code 18.2-8 (2004). Improper driving is a traffic infraction. "Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $ 500." Va. Code 46.2-869 (2005). Therefore, the Court cannot order defendant to pay restitution, at least not under Code 19.2-303.

Two other code sections govern restitution for medical expenses: 19.2-305(B) and 19.2-305.1(B). Section 19.2-305.1(B) states that "any person who . . . commits, and is convicted of, a crime in violation of any provision of Title 18.2 shall make at least partial restitution . . . for any medical expenses . . . incurred by the victim . . . as a result of the crime. . . ." Va. Code 19.2-305.1(B) (2008). The instant case does not come under this statute, as defendant was found guilty of a traffic infraction pursuant to 46.2-869, as opposed to being found guilty of a crime in violation of a statute in Title 18.2. Section 19.2-305(B) inter alia reads as follows: "A defendant placed on probation following conviction may be required to make at least partial restitution . . . to the aggrieved party . . . for damages or loss caused by the offense for which conviction was had. . . . Va. Code 19.2-305(B) (2008). There are two problems with the application of this statute. First, defendant is not on probation, nor can he be placed on probation for a traffic infraction since it is not criminal. Second, restitution may be ordered for damages caused by an "offense," which, as already stated, by definition does not include traffic infractions such as improper driving. Therefore, the court cannot order the defendant to pay restitution.

Restitution can be ordered upon convictions of felonies or misdemeanors; however, it cannot be ordered upon convictions of traffic infractions. A juvenile who was found guilty of improper driving could not be ordered to pay restitution because improper driving was a traffic infraction under Va. Code Ann. 46.2-869, not an offense under Va. Code Ann. 19.2-303, and was not a crime to which Va. Code Ann. 19.2-305.1(B) or 19.2-305(B) was applicable.

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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