Banks v. Com., 760276

• Decision Date: 24 November 1976
• Docket Number: No. 760276,760276
• Parties: William BANKS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 256

230 S.E.2d 256

217 Va. 527

William BANKS v. COMMONWEALTH of Virginia.

Record No. 760276.

Supreme Court of Virginia.

Nov. 24, 1976.

John E. Kieffer, Bristol (Woodward, Miles & Flannagan, Bristol, on brief), for plaintiff in error.

A. R. Woodroof, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this criminal appeal, an habitual offender, asserting the protection of the Self-Incrimination Clauses of the State and Federal Constitutions,* attacks the applied constitutionality of Virginia's 'hit and run' statute, Code § 46.1--176.

The record shows that in October of 1973 in Smyth County, defendant William Banks was declared an habitual offender. He was ordered not to operate a motor vehicle on the highways of this State and to surrender to the court for disposal all licenses permitting such operation. Code § 46.1--387.6. While that order was in force, defendant allegedly drove a vehicle which collided with one operated by Joyce McDaniel on May 25, 1975 in Bristol, causing slight injury to McDaniel, who was travelling alone. The Commonwealth sought to show that although defendant's vehicle was stopped about 50 feet from the point of collision, defendant did not report the accident to the police or McDaniel, nor did defendant render aid to McDaniel.

Defendant was subsequently convicted under an indictment based on Code § 46.1--176(a) which charged defendant with feloniously: failing 'to report forthwith to the police authority'; failing 'to report his name, address, operator's or chauffeur's license number and the registration number of his vehicle to' the injured person; and, failing 'to render reasonable assistance to' the injured person. We granted a writ of error in limited grounds to the November 3, 1975 judgment of conviction, entered on the jury verdict, which sentenced defendant to jail for six months.

The dominant issue is whether a portion of Virginia's 'hit and run' statute infringes the constitutional privilege against compulsory self-incrimination of one who has been adjudicated an habitual offender under Code §§ 46.1--387.1, Et seq. We hold the enactment in question does not suffer the constitutional defect alleged.

The part of the statute under attack provides:

' § 46.1--176. . . . (a) The driver of any vehicle involved in an accident in which a person is . . . injured . . . shall immediately stop as close to the scene of the accident as possible without obstructing traffic and report forthwith to the police authority; and, in addition, to the person . . . injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with . . . his name, address, operator's or chauffeur's license number and the registration number of his vehicle. The driver shall also render reasonable assistance to any person injured in such accident, including the carrying of such injured person to a physician, surgeon or hospital for medical treatment if it is apparent that such treatment is necessary or is requested by the injured person.'

Violation of the challenged portions of § 46.1--176(a) may be punished by confinement in the penitentiary or in jail, or by such confinement and a fine, or by a fine only. Code § 46.1--177.

Insofar as pertinent here, the Virginia Habitual Offender Act provides that if any person found to be an habitual offender is thereafter convicted of operating a motor vehicle in this State while the order prohibiting such operation is in effect, such person shall be punished by confinement in the penitentiary. Code § 46.1--387.8. Moreover, in any case in which the accused is charged with driving a motor vehicle while his license or permit to drive is revoked or is charged with driving without a license, the court before hearing such charge shall determine whether such person is an habitual offender, and if so, the court shall certify the case to the proper court of record for trial. Id.

Defendant argues, as he did below in an unsuccessful motion to quash the indictment, that his prosecution under § 46.1--387.8 would 'unmistakenly and directly follow his making the reports required of him by § 46.1--176.' He contends he would have to report to the police, as well as to McDaniel, that he had been driving, that he had become involved in an accident, and that he had no driver's license, it having been revoked in the habitual offender proceeding. He further points out the investigating police officer, obligated to enforce the law upon receipt of the information, would be under a duty to initiate a prosecution for driving without a license, thereby triggering a § 46.1--387.8 habitual offender proceeding. He argues the 'reports to be made by Banks under (§ 46.1--176) would provide the Commonwealth with the entire Corpus delicti of the crime and proof of identity--Every element--which would be needed for a criminal (habitual offender) conviction with severe penitentiary sanctions.'

Prior to the instant offense, defendant served a penitentiary sentence for operating a motor vehicle in November of 1973, in violation of the October 1973 habitual offender order. Thus, he argues that since he had already experienced the 'sureness' with which a § 46.1--387.8 prosecution followed the November 1973 arrest, 'he could have had little doubt that such a prosecution would follow in Bristol in the aftermath of the May 1975 accident giving rise to this case.'

Guided by California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), we reject defendant's contentions. The California 'hit and run' statute, which withstood a Fifth Amendment challenge in Byers, required the driver of a vehicle involved in an accident causing property damage to stop at the scene and report to the owner or person in charge of the property the driver's name and address and the owner of the vehicle involved. While not passing on an alternative provision of the same statute requiring a report to police, 402 U.S. at 426, 91 S.Ct. 1535, n.1, the Supreme Court, in a plurality opinion, focused on the 'serious questions' resulting from '(t)ension between the State's demand for disclosures and the protection of the right against self-incrimination . . ..' 402 U.S. at 427, 91 S.Ct. at 1537. See Ford v. Commonwealth, 215 Va. 308, 208 S.E.2d 921 (1974). 'Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly.' 402 U.S. at 427, 91 S.Ct. at 1537.

The Court went on, speaking through the Chief Justice, to uphold the California statute stating that the group subject to the statute, I.e., all California automobile drivers, was neither 'highly selective' nor 'inherently suspect of criminal activities,' 402 U.S. at 431, 91 S.Ct. 1535. The Court there distinguished Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), relied on by defendant in the present case. The Supreme Court also noted that 'the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here.' 402 U.S. at 428, 91 S.Ct. at 1538. Furthermore, the plurality opined, an 'extravagant' expansion of the privilege would result from a determination that the statutory reporting scheme was 'testimonial in the Fifth Amendment sense', 402 U.S. at 431, 91 S.Ct. at 1539, equating the act of stopping with the requirement that one in custody stand or walk in a police lineup, and observing that '(d)isclosure of name and address is an...