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United States v. Rivera

United States District Court, W.D. Virginia, Roanoke Division

December 18, 2018



          Robert S. Ballou United States Magistrate Judge

         Christopher L. Rivera (“Rivera”) was charged with driving while his license was revoked in violation of 36 C.F.R. § 4.2(b) while on the Blue Ridge Parkway. No. law enforcement officer observed Rivera driving a vehicle. In court, Rivera pleaded not guilty. The case proceeded to trial and, at the conclusion of the evidence, I took the case under advisement to consider the fact that no park ranger personally observed Rivera driving the vehicle. Having reviewed the record and the relevant case law, I find that there was insufficient evidence to convict Rivera of the offense. Accordingly, this case must be dismissed.


         On or about July 10, 2015, around 10:30 PM, Ranger Dan Whitcomb and his trainee noticed a black Volkswagen Jetta parked at the first overlook on the Roanoke Mountain Loop on the Blue Ridge Parkway. Posted signs stated that the overlook was closed at sunset. The only way to reach the overlook is by driving on the Parkway, but neither ranger observed anyone driving the vehicle at any time. When the rangers approached the vehicle, there was no one inside, but they saw a marijuana blunt in plain view.[1] Ranger Whitcomb found Rivera and his girlfriend, Jordan McClure (“McClure”), at the overlook. Ranger Whitcomb learned from dispatch that McClure's driver's license was suspended, and Rivera's driver's license was revoked. Both had been properly notified of their licensure statuses. Ranger Whitcomb also learned that there was an outstanding warrant for Rivera's arrest for a probation violation, so he arrested Rivera.

         Ranger Whitcomb and his trainee[2] initially questioned McClure and Rivera together. At that point, McClure stated that she drove to the overlook. After arresting Rivera, Ranger Whitcomb questioned both McClure and Rivera separately. Even after asserting multiple times that she had been driving, McClure then stated that Rivera had been driving and claimed she was initially lying to protect Rivera. When Ranger Whitcomb asked Rivera to confirm McClure's second story, Rivera did not deny that he had been the driver, but instead expressed disbelief that McClure altered her story.

         At trial, McClure testified that, contrary to her second version of events, she drove to the overlook that evening. It was her mother's car, so she was driving and Rivera was the passenger. McClure testified that she became scared when Ranger Whitcomb breathalyzed her because of the marijuana and alcohol found in the vehicle.[3] Fearing a DUI, even though she was not impaired, McClure stated in the moment that Rivera actually drove. On cross examination, McClure admitted to a petty larceny conviction in 2012 and a shoplifting conviction earlier in 2015.

         Rivera then testified and asserted he was not driving that evening because he did not have a license. Rivera testified that he never admitted he had been driving, although he was worried that McClure was going to get a DUI. However, when Ranger Whitcomb confronted Rivera with McClure's new story, Rivera became exasperated and said “for real, ” as if he could not believe she changed her story. On cross examination, Rivera admitted to a petty larceny conviction in 2000 and stated he was in prison for five years for a theft crime he committed in 2009.

         Rivera was charged with knowingly and intentionally driving while his license, permit, or privilege to drive was suspended or revoked, a third or subsequent time within a ten-year period, in violation of Virginia Code § 46.2-301, and thus 36 C.F.R. § 4.2(b), which prohibits any violation of state law. (Dkt. 1.) Ranger Whitcomb issued the ticket for driving while revoked to Rivera at the scene, and I later found there was probable cause to issue a summons on the charge. Rivera had three previous convictions for driving while suspended or revoked within a ten-year period, so the government sought the enhanced penalty under the state code provision.[4]Accordingly, I appointed counsel to represent Rivera.


         The issue in this case is whether there is sufficient evidence to convict Rivera, beyond a reasonable doubt, of driving while his license was revoked, even though Ranger Whitcomb did not observe or otherwise have personal knowledge that Rivera drove on the Parkway. The government argued that statements from the witnesses and Rivera provided a sufficient basis on which to convict Rivera of driving while revoked.

         Under Virginia law, no resident or non-resident whose driver's license, learner's permit, or privilege to drive a motor vehicle has been suspended or revoked, shall drive any motor vehicle on any highway in the Commonwealth of Virginia until the period of suspension or revocation has ended, the privilege has been reinstated, or an appropriate restricted license is issued. Va. Code Ann. § 46.2-301(B) (West 2010) (amended July 1, 2017). The individual must have had sufficient notice in order for a conviction to be maintained. Id. In the present case, it is uncontested that Rivera's license was revoked, his period of revocation had not ended, and he received sufficient notice of the revocation. Additionally, the Blue Ridge Parkway is a highway in Virginia, and is within the Western District of Virginia.

         Personal Knowledge

          Rivera maintains that Ranger Whitcomb did not personally observe Rivera driving the vehicle belonging to McClure's mother, and so the evidence is insufficient to sustain a conviction for driving while revoked. The Court of Appeals of Virginia has directly addressed the issue of an officer's personal knowledge in a driving while suspended case. In that case, a trooper came across an unoccupied car stopped in a no-passing zone on a two-lane road. Davis v. Commonwealth, 17 Va.App. 666, 668, 440 S.E.2d 426, 428 (1994). Shortly thereafter, Davis came to the scene as a passenger in another vehicle and stated he had been driving the stopped car. Id. Dispatch informed the trooper that Davis's license was suspended, after which he denied driving. Id. The trooper issued to Davis a summons for a violation of section 46.2-301, but never obtained a warrant. Id. Before trial, Davis argued that the trooper arrested him for a misdemeanor without a valid warrant. Id. The trial court rejected that argument, but instructed the jury that a police officer may not arrest an individual for a misdemeanor except when he has personal knowledge that an offense was committed in his presence.[5] Id. at 669, 429.

         On appeal, the court held that the offense of operating a vehicle with a suspended license ends when the individual stops driving. Id. at 672, 430. Thus, because no part of the offense occurred in the trooper's presence, the arrest of Davis was unlawful because the trooper lacked authority to arrest without a warrant. Id. ...

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