ROBERT S. BALLOU, Magistrate Judge.
Christopher L. Rivera ("Rivera") was charged with driving while his license was revoked in violation of 36 C.F.R. § 4.2(b) while on the Blue Ridge Parkway. No law enforcement officer observed Rivera driving a vehicle. In court, Rivera pleaded not guilty. The case proceeded to trial and, at the conclusion of the evidence, I took the case under advisement to consider the fact that no park ranger personally observed Rivera driving the vehicle. Having reviewed the record and the relevant case law, I find that there was insufficient evidence to convict Rivera of the offense. Accordingly, this case must be dismissed.
On or about July 10, 2015, around 10:30 PM, Ranger Dan Whitcomb and his trainee noticed a black Volkswagen Jetta parked at the first overlook on the Roanoke Mountain Loop on the Blue Ridge Parkway. Posted signs stated that the overlook was closed at sunset. The only way to reach the overlook is by driving on the Parkway, but neither ranger observed anyone driving the vehicle at any time. When the rangers approached the vehicle, there was no one inside, but they saw a marijuana blunt in plain view.
Ranger Whitcomb and his trainee
At trial, McClure testified that, contrary to her second version of events, she drove to the overlook that evening. It was her mother's car, so she was driving and Rivera was the passenger. McClure testified that she became scared when Ranger Whitcomb breathalyzed her because of the marijuana and alcohol found in the vehicle.
Rivera then testified and asserted he was not driving that evening because he did not have a license. Rivera testified that he never admitted he had been driving, although he was worried that McClure was going to get a DUI. However, when Ranger Whitcomb confronted Rivera with McClure's new story, Rivera became exasperated and said "for real," as if he could not believe she changed her story. On cross examination, Rivera admitted to a petty larceny conviction in 2000 and stated he was in prison for five years for a theft crime he committed in 2009.
Rivera was charged with knowingly and intentionally driving while his license, permit, or privilege to drive was suspended or revoked, a third or subsequent time within a ten-year period, in violation of Virginia Code § 46.2-301, and thus 36 C.F.R. § 4.2(b), which prohibits any violation of state law. (Dkt. 1.) Ranger Whitcomb issued the ticket for driving while revoked to Rivera at the scene, and I later found there was probable cause to issue a summons on the charge. Rivera had three previous convictions for driving while suspended or revoked within a ten-year period, so the government sought the enhanced penalty under the state code provision.
The issue in this case is whether there is sufficient evidence to convict Rivera, beyond a reasonable doubt, of driving while his license was revoked, even though Ranger Whitcomb did not observe or otherwise have personal knowledge that Rivera drove on the Parkway. The government argued that statements from the witnesses and Rivera provided a sufficient basis on which to convict Rivera of driving while revoked.
Under Virginia law, no resident or non-resident whose driver's license, learner's permit, or privilege to drive a motor vehicle has been suspended or revoked, shall drive any motor vehicle on any highway in the Commonwealth of Virginia until the period of suspension or revocation has ended, the privilege has been reinstated, or an appropriate restricted license is issued. Va. Code Ann. § 46.2-301(B) (West 2010) (amended July 1, 2017). The individual must have had sufficient notice in order for a conviction to be maintained.
Rivera maintains that Ranger Whitcomb did not personally observe Rivera driving the vehicle belonging to McClure's mother, and so the evidence is insufficient to sustain a conviction for driving while revoked. The Court of Appeals of Virginia has directly addressed the issue of an officer's personal knowledge in a driving while suspended case. In that case, a trooper came across an unoccupied car stopped in a no-passing zone on a two-lane road.
On appeal, the court held that the offense of operating a vehicle with a suspended license ends when the individual stops driving.
In the present case, Ranger Whitcomb testified that he did not see Rivera driving the vehicle, nor did he otherwise have any personal knowledge of him doing so. I took the case under advisement to further research this issue and its applicability to Rivera's case. While there is some other Virginia case law arising out of
Although federal case law lacks on this particular issue, the Fourth Circuit has held that the Fourth Amendment does not prohibit warrantless arrests for misdemeanors committed outside of a law enforcement officer's presence.
This case turns on whether the evidence is sufficient to convict Rivera for driving while his license was revoked in light of the fact that Ranger Whitcomb did not personally see Rivera driving. Under the facts of this case, I find that the evidence fails to prove beyond a reasonable doubt that Rivera was driving that evening and, thus, is insufficient to sustain a conviction.
Here, Ranger Whitcomb discovered an unoccupied vehicle at a closed overlook, which was accessible only by driving on the Parkway. Ranger Whitcomb found Rivera and McClure at the overlook, and both had been in the car prior to stopping there. Ranger Whitcomb never saw either individual driving the car (much less physically in it). Ranger Whitcomb learned from dispatch that Rivera's license was revoked, and that there was an active warrant out for his arrest. He then arrested Rivera based on the outstanding warrant.
The evidence is sufficient to show that either Rivera or McClure drove to the outlook, but is insufficient to prove who actually did. Unfortunately, Ranger Whitcomb did not see anyone driving, or even see the car in motion. Additionally, if Rivera was actually driving, his offense of driving while his license was revoked ended when the driving ended. Ranger Whitcomb never had the opportunity to observe Rivera driving because the offense was already completed.
Additionally, there is some dispute as to whether Rivera admitted to Ranger Whitcomb that he had driven after McClure suddenly changed her story.
I find that the government did not prove beyond a reasonable doubt that Rivera drove the car to the overlook that night. Without personal knowledge from Ranger Whitcomb that Rivera was actually driving, the evidence is insufficient to support a conviction. Additionally, there is reasonable doubt that Rivera was the driver because other circumstances indicate that McClure could just as likely have been the driver. Accordingly, the government failed to prove that Rivera violated Virginia law by driving while his license was revoked. Therefore, the charge that Rivera violated state law, as prohibited by 36 C.F.R. § 4.2(b), must be dismissed.
The dissent argued that, under the necessary strict construction of a criminal statute, section 46.2-301 required the officer to see the defendant driving; accordingly, the officer had to have seen Harris actually put the vehicle in motion.
I find this holding perplexing, seeing as the Court remanded the driving while suspended charge altogether for insufficient process. Regardless, I do not find that Rivera's confession was as clear as the driver's in
I similarly find
