Recent Supreme Court Opinions

By Joseph J. Pantella, IV, Esq.

Last updated January 25, 2023

This blog is intended to provide a list of cases recently decided by the Virginia Supreme Court on topics of interest to the general public. Not every case will be covered here, but those with interesting sets of facts or developments that have broad impact will be covered. 

Forness v. Commonwealth of Virginia (Jan. 19, 2023)

The first opinion by the Court in 2023, is a difficult one to digest. Forness was arrested for driving while intoxicated and charged with a felony DWI. A DWI is a felony if—according to VA Code § 18.2.270(C)(1)—a person is convicted of three DWI offenses within a 10-year period. (DWI itself is defined in VA Code § 18.2-266.) Naturally, if one has already been convicted of a felony DWI, a fourth conviction would also be a felony DWI. Under  VA Code § 18.2.270 each subsequent DWI conviction is punished more harshly, ranging from punishment for a Class 1 misdemeanor and a fine to punishment for a Class 6 felony. 

Forness was charged with a felony DWI, which means that he must have already been convicted of three or more DWIs in the past. The problem is that he wasn't. He had been convicted for DWI before, but only once, which would not have resulted in a felony DWI on his record. But for whatever reason, his criminal history inaccurately reflected a felony DWI conviction. He petitioned to have the inaccurate entry expunged but the trial court refused; he then appealed to the Supreme Court. 

The Supreme Court affirmed the trial court because according to the law governing expungement of police records, a person charged with a crime can have the charge expunged only if there was an acquittal, a nolle prosequi was taken, or the charge was otherwise dismissed. See VA Code 19.2- 392(A). Because none of those were the case with respect to the erroneous felony DWI on Forness's record, the charge could not be expunged. 

Unfortunately, the Court provided no guidance on how a person whose police record is inaccurate can have that record corrected. 

The bottom line:  Expungement is not an appropriate mechanism to correct a police record erroneously listing a crime where: there was not an acquittal of the crime, or no nolle prosequi was taken for the crime, or the crime was not dismissed.  

Morgan v. Commonwealth of Virginia (Dec. 29, 2022)

Morgan was pulled over after a police officer observed him driving erratically. During the stop he indicated to the officer that he had a handgun in a zipped bag on the passenger seat of his vehicle. Morgan was arrested for driving under the influence and charged with carrying a concealed weapon while intoxicated. Morgan had a concealed carry permit. Morgan was convicted of carrying a concealed weapon while intoxicated and his conviction was affirmed by the court of appeals. Morgan appealed to the Virginia Supreme Court.

The question before the Court was whether Morgan was "carrying" within the meaning of VA Code § 18.2-308.012. The Court compared the language of the provision with that of VA Code § 18.2-308(A) "carries about his person." The Court reasoned that the word "carrying" without the additional "about his person" language means that when the person moves the weapon moves, whereas carrying with the additional "about his person" language means more generally within a person's reach. 

The Court concluded that Morgan was not "carrying" the handgun within the meaning of VA Code § 18.2-308.012 and reversed his conviction. 

The bottom line: The word "carry" within the context of carrying a concealed weapon in Virginia means that the weapon moves when the carrier moves.