Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, June 2, 1994 TAG: 9406020090
SECTION: VIRGINIA PAGE: B-4 EDITION: STATE
SOURCE: ASSOCIATED PRESS
DATELINE: HARRISONBURG LENGTH: Medium
A defense lawyer says the ruling, which stemmed from insufficient paperwork provided by the Department of Motor Vehicles, could result in a major overhaul of the way the state tells prosecutors about habitual offenders.
``Every habitual-offender case in the state of Virginia has gone down the tubes,'' Dabney Overton Jr. told the Daily News-Record. Overton is the Harrisonburg attorney who successfully argued the appeals that resulted in the May 24 decision.
Overton, on behalf of six clients, argued that the information about habitual offenders provided by the DMV to county prosecutors does not include everything that a state statute says it must.
In a 2-1 decision, the appeals court agreed.
Two days later, eight of 18 habitual-offender cases on the docket in Rockingham County Circuit Court were dismissed, and seven more were continued until more information can be provided the defense.
When a driver accumulates a certain number of offenses within a 10-year period, the DMV sends an ``Abstract of Driver History Record'' to the commonwealth's attorney in the driver's home district. A civil proceeding then begins in which the prosecutor seeks to have the motorist's driving privileges suspended.
The state code says that each abstract must contain ``the nature and date of the offense, the date of conviction ... the plea, the judgment, the penalty or forfeiture ... and the driver's license number if any, the month, day and year of birth, the sex and the resident address or whereabouts of the defendant.''
All that information is forwarded to the DMV by the clerk of the court where the conviction occurred, but not all is sent by the DMV to prosecutors at the beginning of habitual-offender proceedings. In fact, not all the information provided by the courts is kept in the DMV computers.
The information provided by the DMV usually does not include the plea, the license number and other information that would help defense attorneys in preparing their cases, Overton said.
Nor does the DMV's printout fulfill the requirements of the law, the court said.
``We conclude that the abstract the [DMV] must certify and the abstract the trial judge may admit in evidence ... must include the same data certified to the [DMV]'' by the courts, the appeals court said.
Overton said the statute is the only thing that allows the department to go after habitual offenders in the first place and must be followed exactly.
Assistant Attorney General Jeffrey Spencer argued that the missing information was not relevant to the driving record, but Overton said neither is some of the information required on a driver's license application.
``It sounds like nitpicking, but [except] for this statute they couldn't do it at all,'' he said., the contents of which are also governed by statute.
The information missing from the abstracts still exists somewhere, and prosecutors might be able to salvage cases by going back and digging up paper copies in district courts. But since some of the information is found on hard-to-read carbon copies and some paperwork may have been inadvertently left incomplete, the task of reinstating the charges is often time-consuming.
Habitual-offender status may be attained with three convictions of certain driving violations within 10 years, including driving under the influence, driving with a suspended license, or vehicular homicide; or by accumulating 12 less serious offenses - such as speeding - within 10 years.
Memo: NOTE: Shorter version ran in Metro edition.