Tuesday's opinions from the Court of Appeals

In Department of Labor and Industry v. Summit Contractors, the Court of Appeals in an opinion by Judge Kelsey, joined by Chief Judge Fitzpatrick and Judge Elder, affirmed summary judgment in favor of a contractor in a civil penalty enforcement action brought by the Virginia Occupational Safety and Health Program. The appellee was general contractor for construction of an apartment complex. The subcontractor for the siding work was cited for job safety violations. VOSH went after the general contractor as well, even though it had only 2 employees onsite and it had not committed any violations as to its employees. The issue on appeal was whether a general contractor could be liable for the subcontractor's safety violations with respect to the sub's employees, and the answer is no, under Virginia law (but perhaps not federal law).

In Crutchfield v. State Water Control Board, the Court of Appeals in an opinion by Senior Judge Willis, joined by Chief Judge Fitzpatrick and Judge Humphreys, affirmed the issuance of a permit to discharge treated wastewater into the Pamunkey River in Hanover County. The decision was affirmed based on the Court's conclusion that the agency's decision was supported by substantial evidence. (I wonder what this panel would have done with the birth certificate case). As I understand it, the landowners were initially denied permission to get into this case. The Court of Appeals reversed the ruling on standing, and the Virginia Supreme Court agreed the landowners have standing. State Water Control Bd. v. Crutchfield, 265 Va. 416, 578 S.E.2d 762 (2003).

In Conkling v. Com., the Court of Appeals, in an opinion by Chief Judge Fitzpatrick joined by Judges Felton and Kelsey, that a juvenile adjudication for petit larceny could not be used as the basis for an enhanced penalty under Va. Code 18.2-104, which makes the third or successive offense of petit larceny punishable as a Class 6 felony. The defendant was convicted of stealing a Sony Playstation from one of his relatives. He had a record of 5 petit larceny adjudications as a juvenile. The Court concluded that juvenile offenses don't count unless the legislature specifically says so.

In Kyer v. Com., the Court of Appeals, sitting en banc, concluded in an opinion by Judge Kelsey, with Judge Humphreys concurring only in the result, and with Chief Judge Fizpatrick concurring in part and dissenting in part and Judges Elder and Benton joining her opinion, that the search of the apartment where the defendant lived with his mother was not illegal because the law enforcement officers had the consent of the mother. Judge Humphreys wrote that in his view, the initial entry into the property was legal under the common caretaker exception to the warrant requirement. The police showed up at the property at 4 am and the place was dark but the front door was wide open while it was raining. Chief Judge Fitzpatrick agreed with the majority that the common caretaker exception did not apply, but disagreed as to whether there was adequate proof of the mother's consent.

In Bristol v. Com., the Court of Appeals in an opinion by Judge Benton, joined by Judge Frank and Senior Judge Overton, kicked out the blood test in a drunk driving case because the defendant had not been arrested at the time when the blood was drawn. The defendant caused an accident, for which he was taken to the hospital. While he was there, the officer told him he was under arrest and later a technician drew some blood and gave it to the officer. The defendant was treated and released from the hospital and went home. A few days later the officer called the defendant to come down to the police station to answer some more questions, which he did. Later, after he was indicted, he was served and arrested and taken into custody. The implied consent statute requires that the defendant must be "arrested" within three hours of the alleged offense. Va. Code 18.2-268.2. The Court concluded that telling the defendant at the hospital he was arrested was not enough of an exercise of control over him to meet the requirements of the statute, and the defendant's express consent to the blood test did not eliminate the requirement of an arrest.