The Rocket Docket

Recidivist Drunk Driver May Be Sentenced To Six-Month Period Of Incarceration As A Special Condition Of Probation.

In U.S. v. Posley, 2008 WL 5351898 (E.D. Va. December 22, 2008), the Eastern District of Virginia affirmed a magistrate judge’s sentence of two years probation, including a six-month period of incarceration, where the defendant pled guilty to his fifth DWI offense in ten years.

 While operating his motor vehicle on Pentagon property, the defendant, Aaron Posley (“Posley”) was arrested for, inter alia, driving while intoxicated.  Id. at * 1.  Posley pled guilty to the DWI charge and was sentenced to two years probation with special conditions, including a six-month continuous term of imprisonment, by the magistrate judge.  Id. Posley appealed this sentence to the District Court, arguing that the sentence was unreasonable and unauthorized by applicable statutory authority.  Id. 

 The Court began its analysis by setting forth the pertinent statutory framework.  Id. at * 2.  The Court noted that a DWI offense is a Class B misdemeanor punishable by no more than a six month prison sentence.  Id.  The Court also noted that a sentencing court may place conditions on probation, as authorized by statute.  Id. (citing 18 U.S.C. § 3563).  There are twenty-three discretionary conditions a sentencing court may impose of a defendant’s probation.  Id. (citing 18 U.S.C. § 3563(b)).  Factors a sentencing court should consider in applying conditions to probation include the nature and circumstances of the offense and the history and characteristics of the offense, as well as public safety and deterrence.  Id.  A sentencing court may instruct a defendant to satisfy “such other conditions as the court may impose.”  Id. at * 3 (citing 18 U.S.C. § 3563(b)(22)). 

 The Court held that the magistrate judge had the authority to impose a sentence of a six-month term of imprisonment as a condition of probation given the broad mandate provided to a sentencing court under 18 U.S.C. § 3563(b)(22), the legislative history of the pertinent code sections, and the canons of statutory construction applicable to the instant matter.  Id.   Moreover, because of the defendant’s extensive history of DWI offenses and the likelihood that Posley would drive while intoxicated again, the magistrate judge’s sentence was not unreasonable given the serious danger Posley posed to the public.  Id. at  5.  The Court opined that Posley’s own acts, namely being convicted for five DWI offenses in a ten-year period, established that Posley had little regard for the rule of law that required a stern sentence to illuminate Posley as to the seriousness of his conduct.  Id. at * 6.  The Court held that Virginia’s more severe scale of punishment for the same offense further buttressed the propriety of the sentence.  Id.  As such, the Court affirmed the sentence, as it was both fair and reasonably related to protecting the public.  Id.     

To survive a Rule 12(b)(6) Motion to Dismiss, a claim for false arrest must allege that the arrest was made without lawful warrant

In Montanile v. Botticelli, et al., 2008 WL 5101775 (E.D.Va. 2008), Plaintiff contracted with Defendant Botticelli to sell him baseball cards for $7,800. The facts alleged that Botticelli mailed a check to Plaintiff which was cashed and that Plaintiff insured and sent the cards to Botticelli via UPS the same day. According to the Plaintiff, UPS failed to obtain a delivery signature and just left the package which Botticelli never received. Plaintiff filed a claim with UPS and told Botticelli she would refund his money when she received the insurance remittance from UPS. Botticelli secured a warrant for Plaintiff's arrest. Plaintiff was arrested in New Jersey and spent two weeks there before being extradited to Virginia, where she was released after posting bail. She then filed suit against both Botticelli and UPS. Both Defendants filed Rule 12(b)(6) motions to dismiss. Botticelli's Motion was denied in part and granted in part and UPS's Motion was granted.

Botticelli's Motion to Dismiss alleged that Plaintiff had not sufficiently alleged facts to support two of the four elements of malicious prosecution: probable cause and malice. Although Botticelli had submitted evidence that may have granted him summary judgment, on a Rule 12(b)(6) Motion to Dismiss, the Court was concerned only with the facts pled in the Complaint. The Court held that the allegations pled by Plaintiff made it "at least plausible that Botticelli lacked knowledge of facts and circumstances that could give him probable cause to have Plaintiff arrested." 2008 WL 5101775, *3. The Court also held that malice can be inferred from the absence of probable cause and therefore Plaintiff had also sufficiently alleged facts to support that element. Botticelli's Motion to Dismiss Plaintiff's claim for malicious prosecution was therefore denied.

Botticelli's Motion to Dismiss also sought to dismiss Plaintiff's claim for false arrest. "False arrest is a species of false imprisonment." Id. at *4. Botticelli claimed that because the Complaint did not allege that he actually arrested or restrained Plaintiff, she had not pled a claim for false arrest. The Court disagreed and held that Plaintiff did not have to allege that Botticelli personally arrested her in order to state her claim. However, the Court did find that in order to state a claim for false arrest, a Complaint must allege that the arrest was made without lawful warrant or other form of lawful process. Because Plaintiff failed to allege any problems with the warrant or that the arrest was made without a lawful warrant, Botticelli's Motion to Dismiss Plaintiff's claim for false imprisonment was granted.

UPS's Motion to Dismiss was granted because Plaintiff's claims against UPS are pre-empted by Federal Law--specifically, the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. s14706.