When I was browsing the photos on Unsplash trying to decide what illustration best suits this blog, I came across this photo that reminded me of an incident that occurred in the wee hours in a neighborhood under construction. I was patrolling back in the area where the construction company kept their materials, mostly under lock and key. However, there was a large mound of gravel sitting off of the unfinished road. That is when I came across an older gentleman with a pickup truck who apparently was filling ten gallon buckets with the company’s gravel. I observed four of the buckets filled were already in the bed of his truck, with another three on the ground yet to be filled. I got out with him and asked him why he was filling his buckets with the construction company’s gravel. He told me that he came back here one night just to look at the homes under construction and noticed this pile of gravel and thought it would be okay if he took some. He needed to place gravel in front of his home on the busy highway because it generally is a place people pull over on the grass temporarily either to text something, mechanical issues, etc. This has caused massive ruts and he wanted to place gravel there so it didn’t look bad. I asked him why he thought they wouldn’t mind taking it. He said he has done this before with other companies and they didn’t care. I asked him if he truly believed that they wouldn’t care, why was he out here at two in the morning instead of when they were here. He then gave me a weak explanation that he sleeps during the day and he is up all night. Where that may be true with some people, his voice inflections and body language made me suspect it was nonsense. I took down his information, took a photo with him beside the truck holding a shovel and the filled buckets in the bed, and told him to dump the gravel out. I would be in touch with him once I contacted the company in the morning.
At 6 am, I called the phone number printed on the construction office trailer, and it was actually the owner of the construction company that answered. When I told him what I came across, he was estatic that finally someone got caught stealing his material. He has had a problem with that for a long time without anyone getting caught. He told me that it wasn’t the cost that mattered. When I told him how much gravel he had in the bed of his truck, he estimated it to be about $35. It was all about the principle and he requested that the man be charged and that he would be willing to personally come to court to testify as the victim of the theft. He told me before we got off the phone that if the man had actually come to him or called, knowing now what it was for, he would not only allowed him to have the gravel, he would have sent men in a truck, dumped the gravel and smoothed it level for him at no cost. The reason was that he always felt that when he would work a project, he would be a good neighbor and he often would do small things to beautify the area around his project as well. It was also a healthy tax break. So when this went to court, the man was convicted of petit theft, given probation and a fine and told to stay off any construction projects that this company would be working as a condition to his probation. The sad thing is that this man aged into his 60s before acquiring a criminal record.
So, in this blog I intend to discuss some offenses in Virginia (such as petit larceny and the first one to be discussed) that have the third offense significance where it turns from a misdemeanor into a felony. (Also, keep in mind as in other blogs everything written here is true to the best of my knowledge at the time it was written, and nothing here can be construed as legal advice that you can get from your attorney.) Petit larceny, or plainly theft, is one of these offenses. and we will discuss it now:
Petit Larceny
Code §18.2-104). A third offense Petty Larceny in Virginia is a felony, regardless of the value of the item stolen. It is punished with up to 5 years in prison, a fine up to $2,500 and restitution will usually be ordered as well.
Usually, this offense occurs most commonly in shoplifting cases. A customer that constantly is partial to the art of, shall we call it, asset relocation, with the dilusion that, even though he or she had been caught twice before, he or she has become more proficient and stealthy and that there is no way in the world her theft would be detected. Surprise, sticky fingers. Your teflon shielded perfect plan is not so perfect, is it? And now you are sitting in the loss prevention of Walmart or some other store ruing the fact you ever stepped foot in this store. You’ll find upon conviction, even though I have never seen more than a week of jail time from a mostly suspended sentence, that it will cost you beyond the detention and fine. You will lose the right to bear arms or vote. It will be difficult to get a job, especially in retail or government. If you ever had to testify in your defense for a future matter, the prosecutor will ask you if you have ever been charged with a crime of moral turpitude such as lying, cheating and stealing. You will have to answer in the affirmative because make no mistake about it, the prosecutor has in his or her hands a copy of your criminal history. He will then argue that your whole testimony is suspect because your criminal history shows you are a dishonest person.
Notice also, the law states that there is no minimum value where this felony can be prosecuted. It could actually be just a stick of gum. I remember going to a small grocery store where the security guard stopped a male customer leaving the store with about $50 worth of groceries that he paid for. This man had told the guard and me that he just came from work as a brick mason. It was evident he was telling the truth because he was covered in the dust. The guard had observed him from behind one of the aisles when he was at the meat counter. He watched as the man took a small pack of pork cutlets (cost of a few dollars), opened up the package, and put the meat inside his front pants pocket. I had Mirandized him, and with him telling me that he had plenty of money to pay for it, I asked him, looking at the meat filled with mason dust from his pockets, why did he do this knowing he wouldn’t be able to consume them. He told me he has a compulsion that he has to steal something every time he shops. He already intended to throw them away once he got home. And this was his third offense. I couldn’t just let him go because he said he was sick, but I had to charge him because I had no choice in that the manager he intended for charges to be pressed against him. If my memory serves me, I believe he still was convicted with the felony, but in lieu of jail time he attend shoplifters counseling classes as a condition of probation.
Yet, it’s not just shoplifting. If you are charged with theft from your employer, a neighbor, or a stranger, it all counts as larceny. Now notice the law states that it is third offense larceny. If you get caught three times stealing within the same month (close your mouth, believe it or not it happens more commonly than you think) and you have not yet been to court on the first two, just the fact that this is your third offense theoretically you could conceivably be charged with a felony, although if you were found not guilty on one of the other two, it most likely be knocked down to a misdemeanor.
Domestic Assault
18.2-57.2(B)–B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, (v) strangulation in violation of § 18.2-51.6, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.
Even more common than a third offense larceny is the third offense domestic assault. Why is that? It is because usually the act of stealing or shoplifting is motivated primarily through greed (there are those who are destitute and shoplift food to feed their families, but with the availability of churches and food pantries that will help them, this is rare). With domestic violence is motivated by ego and emotion. These are much stonger compulsions than greed. At least with greed, offenders usually are in full control of their falculties knowing the full weight of the consequences. With domestic violence, many times there is an escalation starting maybe with an argument and accelerating from there. Violence occurs when there seems no other alternative to control the situation and steer it to one’s own selfish wants and desires. It is a way to control not only the situation, but also the one who is being assaulted. (For more information on the escalation of domestic violence, read my blog entitled, What I’ve Learned From Working Domestic Violence Calls).
Along the same lines as third offense theft as a felony regardless of the value, the third offense domestic assault is a felony regardless of the degree of the assault. Well, what is the legal definition of assault? It is any unwanted touching. If your girlfriend or wife, boyfriend or husband touches you, and you tell them to stop, and they still do this, if you call the police and they come where both of you admit the occurrence of touching that was not injuring or even sexual in nature, then the one touching can go down for domestic assault, and if it is the third offense, it will be a felony. Now, I’m sure there will be wheeling and dealing between the prosecutor and the defense attorney where the latter will claim that there was no injury and it may even be pled down to a misdemeanor simple assault. But the arrest will be under felony guidelines where bail will most likely be set much higher. Any time you go interview for a job and you are asked if you have been ever charged with a felony (notice I did not say conviction) to be honest and escape termination later on for lying on your resume, you will have to answer in the affirmative. Even if your case has been reduced to a misdemeanor (in Virginia, at least) your criminal abstract with post the charge as a felony and then the disposition as guilty on a misdemeanor, but the felony arrest will remain. Again, Second Amendment Rights and the right to vote gone forever, at least in most states.
DUI/DWI/DUID
. 1. Any person convicted of three offenses of § 18.2-266 (code for driving under the influence–contents of parenthesis mine) committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000
The first two sets of initials are fairly synonymous (Driving Under the Influence, Driving While Intoxicated), but the other deals with driving under the influence of substances other than alcohol (Driving Under the Influence of Drugs). To me, this is one of the most senseless ways some get into major legal trouble. I understand there are those who are alcoholics and I am not trivializing their plight. Yet are so many ways today that you can avoid getting caught driving drunk (and I am not referring taking the back roads). If you KNOW you are going to drink when you go out and you have a problem of leaving the establishment still relatively and legally sober enough to drive, before you go out and take your first drink, get someone to drive you like an Uber or Lyft to that place where you will not have access to your vehicle. Or you can drink at home. With all the ways to transport people safely when they are intoxicated, and then being convicted twice before for driving drunk, making the excuse that one is an alcoholic does not hold water in court. You were given at least two opportunities to avoid a felony and learn, but you disregarded all the safeguards and have no one to blame but yourself.
If you think I am being harsh, it is because as a Fatality Crash Investigator most of the deaths caused on the highway (very rarely is it the one that is intoxicated) is caused by drunk driving. You would understand my attitude if you were to accompany me on the death notifications I would have to make. The screams of grief I have been witness to have been engraved into my memory that have, from time to time, woke me up at night. Their loved ones are gone and their lives are changed forever. There will be empty seats at family reunion dinners, times when a monentous occasion will arrive, and they will head to the phone, and then suddenly realize their love one is not around to share the news with. It is not just my sediment that significant here. Look at the harshness of the penalties, starting out with a 90 day mandatory jail sentence, and that is without hurting anyone.
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In these three offenses we have discussed, there is a common theme–it is the fact that not just one time, but two times the offenders fail to understand that these behaviors are only going to make their lives harder and that in order to avoid this, they must break the habit so that they can lead positive productive lives. Perhaps some will never learn. Yet if I could get one individual who reads this to change, it would be worth the effort to write it.
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AS CRIME IN AMERICA INCREASES, SO WILL THE LACK OF AVAILABLE POLICE TO COME TO YOUR AID. TAKE RESPONSIBILTY NOW FOR YOUR SAFETY AS WELL AS THAT OF YOUR FAMILY!! CLICK BELOW TO GET THE TOOLS TO DO JUST THAT!!
