Commonwealth of Virginia v. Christopher Sutter Sumner
CIRCUIT COURT OF THE CITY OF SALEM, VIRGINIA
66 Va. Cir. 266
December 3, 2004, Decided
He further argues that the decision of the trial court not to convict him of the DUI offense, but instead to amend the warrant to a different charge was an acquittal of the DUI charge.
The issue to be decided here is whether the amendment to a warrant could not change the nature and character of the offense originally charged.
The Commonwealth claimed that the General District Court's decision to amend the warrant was proper pursuant to § 16.1-129.2, Code of Virginia (1950), as amended. The appellate court discussed that the authority of the District Court to amend warrants or place new charges is contained in § 16.1-129.2. The District Court may amend a warrant to correct defects or faults it finds in the form of the document or to charge a lesser included offense. However, an amendment to a warrant cannot change the nature and character of the offense originally charged. There is procedure prescribed to go about it when the District Court believes that a different offense should be charged other than the one contained in the warrant. The procedure being that, it may, pursuant to § 16.1-129.2, issue under its own hand a warrant reciting the offense and requiring the defendant in the original warrant to be arrested and brought before the court. When it amended the warrant from DUI to reckless driving, the District Court changed the nature and character of the offense. The Court ruled that reckless driving is not a lesser included offense of DUI. It is instead a separate and distinct crime. Without the issuance of a new warrant, the Defendant could not be tried or found guilty of a distinct offense, in this case, reckless driving. Once the Salem District Court heard the evidence in the DUI case and amended the warrant in order to find the Defendant guilty of reckless driving, that finding necessarily constituted an acquittal of the DUI charge.
The current charge against the defendant that was on appeal was dismissed.
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