Crenshaw v. Com., s. 771382

Citation245 S.E.2d 243,219 Va. 38
Decision Date09 June 1978
Docket NumberNos. 771382,s. 771382
Parties, 17 A.L.R.4th 1328 Charles William CRENSHAW v. COMMONWEALTH of Virginia. Ruth Estelle HOFMANN v. COMMONWEALTH of Virginia. Marvin Lee O'DELL v. COMMONWEALTH of Virginia. Russell William SWENOR v. COMMONWEALTH of Virginia. Recordto 771384 and 771763.
CourtVirginia Supreme Court

Henry J. Foresman, Lexington, Albert M. Orgain, IV, Richmond (William C. Plott, Foresman & Plott, Lexington, Sands, Anderson, Marks & Miller, Richmond, on brief), for plaintiffs in error.

A. R. Woodroof, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., R. W. Fahy, Asst. Atty. Gen., on brief), for defendant in error.

John James Jennings and The Association for Protection of Rights of Truckers Engaged in Commercial Transportation (L. Leyburn Mosby, Jr., Mosby & Jones, Lynchburg on brief), amicus curiae, for plaintiffs in error.

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

CARRICO, Justice.

These four cases, heard together on appeal, all involve convictions under Code § 46.1-198.1. 1 This Code section creates three misdemeanor offenses concerning devices or mechanisms to detect the emission of radio microwaves in the electromagnetic spectrum, which microwaves are employed by police to measure the speed of motor vehicles for law-enforcement purposes. The offenses are (1) the operation of a motor vehicle "equipped with" such a device, (2) the use of such a device upon a motor vehicle, and (3) the sale of any such device.

Each of the four cases involves a "radar detector" observed by police on the dashboard of a motor vehicle operated by a particular appellant. At the time, none of the devices was in use. Hence, we shall consider only the "equipped with" portion of § 46.1-198.1.

The appellants advance numerous arguments to support reversal of their convictions. As a threshold proposition, they contend that, pursuant to the Supremacy Clause of the United States Constitution and by the enactment of the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., Congress has preempted the field of radio communication and, therefore, the General Assembly was precluded from enacting § 46.1-198.1.

We find this contention without merit. In Head v. New Mexico Board, 374 U.S. 424, 430, 83 S.Ct. 1759, 1763, 10 L.Ed.2d 983 (1963), in upholding state action against a claim of preemption under the Communications Act, the Supreme Court said:

"In areas of the law not inherently requiring national uniformity, our decisions are clear in requiring that state statutes, otherwise valid, must be upheld unless there is found 'such actual conflict between the two schemes of regulation that both cannot stand in the same area, (or) evidence of a congressional design to preempt the field' " (footnote and citation omitted).

See also Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), and Kroeger v. Stahl, 248 F.2d 121, 123 (3d Cir. 1957).

Here, we find no conflict between the prohibition of Code § 46.1-198.1 and the federal regulatory system established by the Communications Act. Except for a reference to the general purpose of the Act "to make available, so far as possible, to all the people . . . a rapid, efficient . . . radio communication service," 47 U.S.C. § 151, the appellants have not cited any federal regulation which would even remotely indicate that "both (systems) cannot stand in the same area" or that the regulatory field has been preempted, so that all state action is forbidden.

Indeed, the Federal Communications Commission has provided expressly for radio communication essential to the discharge of non-federal governmental functions, including a public safety service of radio communication essential to official police activities. 47 C.F.R. §§ 89.1 et seq. (1976). Accordingly, the Commission has allocated a frequency for police radar. 47 C.F.R. § 89.101 (1976). The known purpose of police radar is to regulate the speed of motor vehicles on the highway. This purpose would be thwarted by the unregulated use of the "radar detectors" encompassed within the prohibition of § 46.1-198.1. Thus, in regulating "radar detectors," § 46.1-198.1, rather than conflicting with the federal regulatory function, actually complements this function by protecting the effectiveness of essential police radio communication.

This brings us to the serious question presented by the appellants' contentions, viz., that the second paragraph of § 46.1-198.1 creates a presumption which is violative of due process guarantees. The paragraph in question reads as follows:

"The presence of any such prohibited device or mechanism in or upon a motor vehicle upon the highways of this State shall constitute prima facie evidence of the violation of this section. The Commonwealth need not prove that the device in question was in an operative condition or being operated."

In determining the validity of a statute making proof of one fact prima facie or presumptive evidence of another fact, a two-fold test is applied: (1) whether there is a natural and rational evidentiary connection between the fact proved and the ultimate fact presumed; and (2) whether the presumption is rebuttable. Unless the evidentiary connection exists and the presumption is rebuttable, the statute cannot be upheld against a due process attack. Dooley v. Commonwealth, 198 Va. 32, 34, 92 S.E.2d 348, 349-50 (1956); Burnette v. Commonwealth, 194 Va. 785, 790-91, 75 S.E.2d 482, 485-86 (1953).

Here, if we were confronted with only the first sentence of the second paragraph of § 46.1-198.1, we would have no difficulty upholding the statutory presumption, as applied to an "equipped with" violation. Given the single purpose of "radar detectors," we believe there is a natural and rational connection between the proved fact that such a device is present in or upon a motor vehicle and the presumed fact that the vehicle is equipped with the device. And the presumption could be rebutted by evidence that the device was unavailable or inaccessible for use, e. g., that the device was operationally disabled or that it was locked in...

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12 cases
  • Smith v. District of Columbia
    • United States
    • D.C. Court of Appeals
    • 25 Septiembre 1981
    ... ... 764, 279 N.W.2d 546 (1979), aff'd on reh., 93 Mich.App. 321, 287 N.W.2d 220 (1980); Crenshaw v. Commonwealth, note 4 supra ...         In Head v. Board of Examiners, 374 U.S. 424, 83 ... ...
  • People v. Gilbert
    • United States
    • Michigan Supreme Court
    • 28 Septiembre 1982
    ... ... Anonymous (1980-8), 36 Conn.Supp. 551, 421 A.2d 867 (1980); Crenshaw v. Commonwealth, 219 Va. 38, 245 S.E.2d 243 (1978) ...         The Michigan statute was ... ...
  • Wilson v. Com., 812049
    • United States
    • Virginia Supreme Court
    • 11 Marzo 1983
    ... ... 479, 129 S.E. 348 (1925). We have held unconstitutional an irrebuttable presumption that may be arbitrarily applied. Crenshaw et al. v. Commonwealth, 219 Va. 38, 245 S.E.2d 243 (1978). We have also held a presumption invalid where there was no rational connection between ... ...
  • Bryant Radio Supply, Inc. v. Slane
    • United States
    • U.S. District Court — Western District of Virginia
    • 11 Febrero 1981
    ... ... to determine whether the challenged statute effectuates "a legitimate local purpose." In Crenshaw v. Commonwealth, 219 Va. 38, 245 S.E.2d 243 (1978), the Virginia Supreme Court stated: ... The ... ...
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