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‘Driving while blonde’ puts artist Tulis to test as she targets small-town VA trooper racket

Abigail Tulis is a painter, sculptress and media specialist from Soddy-Daisy, Tenn., living in Vianen, the Netherlands. (Photo David Tulis)
Trooper trainee J.M. Wyatt II uses LIDAR with trooper trainee D.C. Randall. (Photo Virginia state police)
Smyth County courthouse in Marion, Va., is center of a fine-and-fee racket by local judges and the state, county and city constabulary against travelers on the public roadways. (Photo Joe L. Jackson law firm)

The aggrieved Abigail Tulis, sui juris, in her proper person, of Tennessee, alleges that Judge Travis Lee of Smyth County, in upholding the sufficiency of the Virginia uniform summons, denied her due process rights.

By Abigail Tulis / https://www.abigailtulis.com/

Judge Lee ignored her attack on the form that effectively requires troopers to deny accused parties sufficient notice of the charges against them and to make defense at trial. The form requires the trooper to “describe charge” but gives him (or her) little room for a narrative containing the essential elements of the crime. Thus, the form creates a custom of insufficient charging instrument, violative of the defendant’s due process rights. 

[This draft brief lays out how to fight a criminal case such as reckless driving. Abigail Tulis, traveling in Virginia in December 2019, is waylayed and charged by a trooper. Her defense is that the uniform summons she mistakenly signs provides insufficient notice as to the reckless driving charge against her, and that the state fails to allege, and cannot prove, the four “essential elements” of that offense required to be proven to convict. A copy of her actual motion for dismissal is available at a link nearby, filed for a June 29, 2020, trial date on the infraction of “improper driving” in Smyth County court in Marion, Va. This work is valuable for Virginians specifically, but for others as well, since among the states the laws upon traffic are similar and your constitutional rights to due process are unbroken by travel from one state to another. I suggest most cases can be won on due process grounds, specifically on the weakness of insufficient charging instrument and failure of the accuser to state a claim for which relief may be granted. — DJT]

That right under the constitution requires every accuser to obtain standing to prosecute. The state and its witness obtain legal standing by giving a full accounting of allegations of how petitioner violated the reckless driving law. This requirement for full notice cannot be waived by administrative convenience or a need to save the officer’s time and trouble alongside the highway in having to write an account of his charges.

But that’s what happens on Virginia’s highways thousands of times a year — and accused is a victim.

Miss Tulis, 27, a sculptor and artist with family residence in Soddy-Daisy, Tenn., was a belligerent claimant in person and gave a defense pleading the statute and Virginia appellate court rulings on the essential elements of reckless driving. Living in Vianen, the Netherlands, she returned to the U.S. to face trial in Marion.

Judge Lee denied her an evidentiary hearing and notice of the evidentiary facts the state possessed. Judge Lee presumed subject matter jurisdiction that he did not appear to have.

Judge Lee also denied accused counsel of her choice, worsening the effect of ambush testimony from the trooper. He denied the accused the right to develop her theory in her defense, refused to allow her to cite a Tennessee case regarding the essential elements, refused to allow her to build a foundation for her questions on the evidence, refused to give her nature and cause of the accusations against her, refused to let her elicit the evidentiary facts from the witness trooper, refused to act justly under the beyond reasonable doubt standard for criminal matters and refused to rule proportionately to the alleged offenses. 

Petitioner offers these details by the way. She lays them aside in presence of this honorable court with the understanding she has a right to a bench trial de novo. She yields her right to a trial on alleged facts, and presents her petition solely on matters of law. 

The petition asks for a finding that the Virginia uniform summons is unconstitutional because it puts members of the traveling public under a clear, substantial and material wrong. 

4 elements of reckless driving

The reckless driving law that creates a duty and liability on drivers of vehicles reads as follows: 

Section 46.2-852. Reckless driving; general rule

Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving. Va. Code Ann. Section 46.2-852

The reckless driving essential elements to be alleged and proven:

  1. Self-propulsion or locomotion in car, truck or motorbike or the driving or operating of a motor vehicle
  2. Intent or scienter — “recklessly”
  3. Proximity others (“any person”)
  4. Acts (“at a speed or in a manner”) that endanger “the life, limb, or property” of people nearby

The question put to this honorable court is as follows: Is it sufficient for the state’s witness and chief accuser, the trooper or officer, merely to name the charge in the charging instrument — the uniform summons — and not allege the essential elements? Does it violate a defendant’s rights to due process to receive from her accuser nothing but the name of the charge?

Statute requires bill to allege all elements

The law and court rulings in Virginia establish the right to receive sufficient notice in the charging instrument and to have each element argued and proven in court.

Rule 3A:6, the indictment and the information, say the instrument must “[describe] the offense charged” and also “cite the statute or ordinance that defines the offense” and shall omit nothing or make errors that “[prejudice] the accused in preparing his defense.”

Section 19.2-220, contents of indictment in general, says the narrative of the offense “shall be a plain, concise and definite written statement” of the act, “describing the offense charged” [the act]. 

“All essential elements of an offense must be precisely stated in the indictment; inference may not supply an essential element that is lacking. In charging a statutory offense, it is unnecessary to charge guilty knowledge unless scienter is part of the statutory definition of the offense.” Wall Distributors, Inc. v. Newport News, 228 Va. 358, 323 S.E.2d 75, 1984 Va. LEXIS 312 (Supreme Court of Virginia November 30, 1984).

Every fact to be proved must be alleged

“Due process requires the prosecution ‘to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.’ Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Mullaney held that any rule which has the ultimate effect of shifting the burden of persuasion to the accused upon a critical issue is constitutionally infirm.*** Under well-settled law, ‘the burden is on the Commonwealth to prove every essential element of the offense beyond a reasonable doubt.’ Bishop v. Commonwealth, 275 Va. 9, 12,  [*352]  654 S.E.2d 906, 908 (2008) ***. This fundamental precept has been the bedrock of Virginia’s criminal jurisprudence since the inception of this Commonwealth. Id. ‘In a criminal case, the defendant is entitled to an acquittal, unless his guilt is established beyond a reasonable doubt.’ Savage v. Commonwealth, 84 Va. 582, 585, 5 S.E. 563, 564 (1888).” Williams v. Commonwealth, 57 Va. App. 341, 702 S.E.2d 260, 2010 Va. App. LEXIS 481 (Court of Appeals of Virginia December 14, 2010, Decided). [Emphasis added]

“Where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment is to charge the offence in the same generic terms as in the definition; but it must state the species, it must descend to particulars. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as can enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one is to be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.” United States v. Cruikshank, 92 U.S. 542, 548, 23 L. Ed. 588, 590, 1875 U.S. LEXIS 1794, *6, 2 Otto 542 (U.S. March 27, 1876) [Emphasis added]

 ➤ “In order to prove the crime of escape under § 18.2-477, the Commonwealth must establish that (1) Clemons was confined in jail or was in custody after conviction of a crime; (2) he unlawfully fled or departed from lawful custody; and (3) force or violence was used to effectuate the departure. See 7A M.J., Escape § 1.” Barney v. Commonwealth, 69 Va. App. 604, 822 S.E.2d 368, 2019 Va. App. LEXIS 5, 2019 WL 122059 (Court of Appeals of Virginia January 8, 2019, Decided). [Emphasis added]

Travis Lee, district court judge

➤ “Penetration by a penis of a vagina is an essential element of the crime of rape; proof of penetration, however slight the entry may be, is sufficient. And, a conviction of rape may be sustained solely upon the victim’s testimony.” Moore v. Commonwealth, 254 Va. 184, 185, 491 S.E.2d 739, 739, 1997 Va. LEXIS 98, *1 (Va. September 12, 1997) [Emphasis added]

➤ In hit and run, knowledge is an essential element. “This does not mean that the person should have positive knowledge of the extent of the damage or injuries inflicted. It does mean that, in order to be guilty of violating the statute, ‘the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, with that in his mind, he must  deliberately go away without making himself known.’” 5 Am.Jur. 921 [citations omitted].

➤ In attempted capital murder, the prosecutor can’t merely offer a bill saying the accused “attempted to kill” the defendant. There’s an essential element missing.

We conclude that omission of the “overt act” element of the offense of attempted capital murder also constituted error, as the Commonwealth concedes. We addressed this issue in Goodson, 22 Va. App. at 77, 467 S.E.2d at 856, in which we held that an instruction requiring proof merely that the defendant “attempted to kill [victim]” failed properly to apprise the jury of the essential elements of the offense because it did not require proof of “‘an overt but ineffectual act . . . in furtherance of the criminal purpose.’” Id. (quoting Martin v. Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992) (en banc)). Thus, here, as in Goodson, the court’s failure to instruct on the elements of an “attempt” constituted error. *** We hold that the omission of material elements of the offense from the attempted capital murder instruction was error which was not harmless. Herbert v. Commonwealth, 2001 Va. App. LEXIS 184, 2001 WL 345192 (Court of Appeals of Virginia April 10, 2001, Decided ) [Emphasis added]

➤ In a forgery case, the prosecution and judge erred when they gave jury instructions allowing its members to believe that intent was not an essential element. “‘When a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter.’ Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). That duty arises even when “trial counsel neglected to object to the instruction.” Id. at 248,  [*992]  402 S.E.2d at 679. Obviously, the proper description of the elements of the offenses is vital to a defendant. Attaining the ‘ends of justice’ requires correction of an instruction which allows a jury to convict a defendant without proof of an element of a crime. Instruction Eight was so defective that it allowed the jury to convict Campbell of forgery even if the jury concluded that Campbell lacked an intent to defraud. Intent to defraud, however, is a necessary element of forgery.” Campbell v. Commonwealth, 14 Va. App. 988, 421 S.E.2d 652, 1992 Va. App. LEXIS 214, 9 Va. Law Rep. 97 (Court of Appeals of Virginia August 11, 1992, Decided ) [Emphasis added]

‘Descend to the particulars’ to ‘furnish the accused’

If merely naming the charge is insufficient, as occurred in this case, so, too, is simply alleging the charge in terminology of the law. 

“It is an elementary principle of criminal pleading, that, where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition, but it must state the species — it must descend to particulars. The object of the indictment is — first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.” Pine v. Commonwealth, 121 Va. 812, 820, 93 S.E. 652, 654, 1917 Va. LEXIS 76, *1 (Va. September 20, 1917) [Emphasis added]

The rules of alleging the essential elements apply not just to straightforward laws, but to complex ones with exceptions. 

“It is elementary that every ingredient of the crime must be charged in the bill, a general reference to the provisions of the statute being insufficient. [citations omitted] And ‘if the negation of an exception in the enacting clause of a statute is essential to accurately describe the offense, then the accusations of the indictment must show that the accused is not within the exception.’” [citations omitted] Hale v. United States, 89 F.2d 578, 579, 1937 U.S. App. LEXIS 3530, *3 (4th Cir. W. Va. April 12, 1937) [Emphasis added]

From evidentiary facts to ultimate facts

The process of the accusation is to bring the essential elements in the criminal charge to the judge, to give him jurisdiction over the matter, and to give the defendant notice of how to defend herself. The charging instrument , to borrow from Restat 2d of Judgments, § 27, alleges evidentiary facts to bring the accused into the “ultimate fact” (i.e., the application of law to fact).

“When considering on appeal the sufficiency of the evidence presented below, appellate courts presume the judgment of the trial court to be correct and reverse only if the trial court’s decision is plainly wrong or without evidence to support it. Thus, appellate courts do not substitute their judgment for that of the trier of fact. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly v. Commonwealth, 41 Va. App. 250, 584 S.E.2d 444, 2003 Va. App. LEXIS 419 (Court of Appeals of Virginia August 5, 2003, Decided ). Crowder v. Commonwealth, 41 Va. App. 658, 588 S.E.2d 384, 2003 Va. App. LEXIS 576 (Court of Appeals of Virginia November 12, 2003, Decided) [Emphasis added]

In every criminal case, there must be enough fact in evidence for the jury to consider it. For a jury to consider it, it must be alleged. 

“The rules of evidence give trial judges broad discretion in evaluating whether evidence is probative, requiring only a ‘plus value’ to make it admissible. Wigmore, supra, § 29, at 976 (Tillers rev. 1983). Once admitted, its value or weight is determined by the jury. As Professor Wigmore characterizes that interplay,

the evidentiary fact offered does not need to have strong, full, superlative, and probative value and does not need to involve demonstration or to produce persuasion by its sole and intrinsic force but merely needs to be worth consideration by the jury. It is for the jury to give the fact the appropriate weight in effecting persuasion.

United States v. Queen, 132 F.3d 991, 998, 1997 U.S. App. LEXIS 36283, *20, 48 Fed. R. Evid. Serv. (Callaghan) 599 (4th Cir. Md. December 29, 1997) [Emphasis added]

Allegations not entitled to assumption of truth

Jill Lawson, Virginia prosecutor in Abigail Tulis case

“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.

*** [A]llegations *** , because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 662, 129 S. Ct. 1937, 1939, 173 L. Ed. 2d 868, 868, 2009 U.S. LEXIS 3472, *1, 77 U.S.L.W. 4387, 2009-2 Trade Cas. (CCH) P76,785, 73 Fed. R. Serv. 3d (Callaghan) 837, 21 Fla. L. Weekly Fed. S 853 (U.S. May 18, 2009) [Emphasis added]

Lack of essential element more than damaging to prosecution

Failure to state a claim is more than just injurious to the state’s case. 

“It is necessary for an indictment to set forth all of the essential elements of a crime and if any of the elements are omitted it is fatally defective. *** When every fact necessary for conviction appears that is enough, and it likewise is sufficient if the facts appear by necessary implication. When an indictment pursues the language of a statute, this is generally sufficient. If every fact necessary to constitute an offense is charged or necessarily implied by following the language of the statute, an indictment will undoubtedly be sufficient. *** An indictment must charge an offense, and if it fails to give the information necessary to enable a defendant to concert a defense, such information may be supplied by a bill of particulars.” Hagood v. Commonwealth, 157 Va. 918, 162 S.E. 10, 1932 Va. LEXIS 332 (Supreme Court of Virginia January 14, 1932). [Emphasis added]

Essential elements in jury instructions

The burden is on the Commonwealth of Virginia to prove every essential element of the offense beyond a reasonable doubt. 

Unless those elements are defined by instructions available to the members of the jury during their deliberation, they cannot properly determine whether the commonwealth has carried its burden. “The duty to give such instructions is not discharged by simple reference to the indictment, or by reading the applicable statute to the jury. It is always the duty of the court at the proper time to instruct the jury on all principles of law applicable to the pleadings and the evidence, and a correct statement of the law applicable to the case, when the law is stated, is one of the essentials of a fair trial.” Dowdy v. Commonwealth, 220 Va. 114, 255 S.E.2d 506, 1979 Va. LEXIS 242 (Supreme Court of Virginia June 8, 1979) [Emphasis added]

A proper charging instrument listing essential elements is followed by the jury ruling on the essential elements, as well, and the appellate court’s asking the same question. “The critical inquiry on review of the sufficiency of the evidence *** does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309, 99 S. Ct. 2781, 2783, 61 L. Ed. 2d 560, 567, 1979 U.S. LEXIS 10, *1 (U.S. June 28, 1979) [Emphasis added]

‘Raise a right to relief above the speculative level’

The federal supreme court equates the use of labels and “formulaic recitation” of essential elements to failing to state a claim to relief and lacking facts to “nudge [the state’s] claims across the line” from possible to plausible.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true. Applying these general standards to a § 1 claim, stating a claim requires a complaint with enough factual matter to suggest an agreement. Asking for plausible grounds does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

**** Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. Bell Atl. Corp. v. Twombly, 5n50 U.S. 544, 548, 127 S. Ct. 1955, 1961, 167 L. Ed. 2d 929, 934, 2007 U.S. LEXIS 5901, *5, 75 U.S.L.W. 4337, 2007-1 Trade Cas. (CCH) P75,709, 68 Fed. R. Serv. 3d (Callaghan) 661, 20 Fla. L. Weekly Fed. S 267, 41 Comm. Reg. (P & F) 567 (U.S. May 21, 2007) [Emphasis added]

The state’s charging instrument

This image is a closeup shows the heart of the two-page charging instrument in State of Virginia v. Abigail Tulis at her trial Feb. 27 in Marion.

Clearly, the standard to be met by charging instruments in Virginia is one of full notice. The accused has an absolute right to have all essential elements of an alleged crime be narrated as evidentiary facts to place her within the claim of the ultimate fact, that of the statute.

Does the Virginia uniform summons serve the interests of justice in the courts of Virginia?

As noted in the screengrab above and in this case file, Trooper Brandon Frye writes “46-2-852” when directed to write the law section. Ordered to “describe charge,” he names the statute, “reckless driving general.” 

Is that describing the charge? Is that descending to the particulars? Does the trooper give the information necessary to enable a defendant to concert a defense?

The trooper’s writing “46-2-852” in the line for “describe charge” denies the accused the basic evidentiary facts that she has a right to evaluate ahead of trial and to defend against. If the court would grant patience, here is the standard at law for the key points the trooper must make in his narration.

Reckless driving’s essential elements

It is necessary to detail the essential elements of reckless driving to suggest that the trooper has a duty to know the law he is enforcing, and to lay out his evidentiary facts in terms of the reckless driving law so bring the accused within the court’s jurisdiction. “[I]t is a fundamental principle that ‘criminal statutes are to be ‘strictly construed against the Commonwealth and in favor of [a] citizen’s liberty.’” King v. Commonwealth, 6 Va. App. 351, 354, 368 S.E.2d 704, 706 (1988) (citation omitted).

The reckless driving law Section 46.2-852 reads as follows: “Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”  Va. Code Ann. Section 46.2-852

The reckless driving essential elements to be alleged and proven:

  • 1. Self-propulsion or locomotion in car, truck or motorbike or the driving or operating of a motor vehicle
  • 2. Intent or scienter — “recklessly”
  • 3. Proximity others (“any person”)
  • 4. Acts (“at a speed or in a manner”) that endanger “the life, limb, or property” of people nearby

1. Self-propulsion or locomotion

Petitioner was traveling in a rental car westbound on Interstate 81 and showed Trooper Frye a Tennessee driver license. The speed limit is 70 mph. She testified of the 11 p.m. encounter she had her speed set at 69 mph, he testified she was traveling at 50 mph.

2. Intent or scienter

An accident is not necessarily reckless driving. “The essence of the offense of reckless driving lies not in the act of operating a vehicle, but in the manner and circumstances of its operation. The mere happening of an accident does not give rise to an inference of reckless driving. However, physical factors associated with impact, including extent of damage to vehicles and property, may be considered as mute evidence of high speed.” The court evaluates the totality of circumstances in a case. In Crest, “The drivers who survived the accident both stated that the weather was clear and they could see the traffic was very heavy ahead of them. When the traffic stopped, they, along with the deceased driver in the Mazda Miata, were able to bring their vehicles to a controlled stop without incident. Appellant crashed into the stopped vehicles and failed to control her truck. This factor, combined with the evidence of appellant’s earlier aggressive driving behavior allowed the fact finder to infer that appellant was not operating her vehicle in a safe manner immediately prior to the accident.” Crest v. Commonwealth, 40 Va. App. 165, 167, 578 S.E.2d 88, 89, 2003 Va. App. LEXIS 147, *1 (Va. Ct. App. March 25, 2003) [Emphasis added] 

An accident caused by a defect is not reckless driving. A wreck caused by a defect one knew about is, however, ground for conviction of involuntary manslaughter. “Kennedy knew,  prior to the accident, that there was a problem with his steering because he had previously experienced difficulty keeping his vehicle under control. Based on his testimony and that of his wife, the trial court could have found that Kennedy was on notice of a defect in his vehicle that could interfere with his ability to maintain proper control, but he continued to operate his vehicle despite this defect.” Kennedy v. Commonwealth, 1 Va. App. 469, 473, 339 S.E.2d 905, 908, 1986 Va. App. LEXIS 225, *8-9 (Va. Ct. App. February 18, 1986)

Falling asleep behind the wheel isn’t necessarily reckless driving. “‘Anyone who falls asleep while operating an automobile on a public road is guilty of a degree of negligence exceeding lack of ordinary care,’ and such behavior may be ‘sufficient to find the operator guilty of the offense of reckless driving.’ However, such evidence, standing alone, will not necessarily support the finding of criminal negligence required for an involuntary manslaughter conviction.” Kennedy v. Commonwealth, 1 Va . App. 469 *; 339 S.E.2d 905 **; 1986 Va . App. LEXIS 225 *** [Emphasis added]

Knowing you are tired before running over the jogger  = notice of lack of control of car = reckless driving. “Appellant had testified that he had been up for 22 hours without sleep and chose to drive his vehicle. Appellant told the arresting officer that appellant caught himself drifting four or five times, but that he would snap out of it. The court found this evidence sufficient for the trier of fact to infer that appellant had the requisite knowledge that his behavior would probably injure another for the behavior to rise to criminal negligence. Criminal negligence was an essential element of involuntary manslaughter.”  Conrad v. Commonwealth, 31 Va. App. 113, 521 S.E.2d 321, 1999 Va. App. LEXIS 652 (Court of Appeals of Virginia November 30, 1999, Decided ). [Emphasis added]

Drunkenness is not reckless driving. “One who knowingly drives an automobile on a highway under the influence of intoxicants, in violation of statute, is negligent. No case holds that one driving under the influence of an intoxicant must necessarily be driving recklessly. Thus, while evidence of intoxication is a factor that might bear upon proof of dangerous or reckless driving in a given case, it does not, of itself, prove reckless driving. One may be both drunk and reckless. One may be reckless though not drunk; one may even be a total abstainer, and one may be under the influence of intoxicants and yet drive carefully. Indeed, with knowledge of the condition, a person might, for the time being, drive with extraordinary care. A person under the influence of intoxicants may at times conduct oneself with the utmost care and dignity, and the person might do this to an extent which will manifest that which the person hopes to conceal. A person might tread a line with an exactness which no sober person would feel called upon to attempt.” Bishop v. Commonwealth, 20 Va. App. 206, 207, 455 S.E.2d 765, 765, 1995 Va. App. LEXIS 354, *1 (Va. Ct. App. April 11, 1995) [Emphasis added]

Knowledge of terrain and prospect of other travelers at an intersection on the other side of a hill creates a known duty of care for a person traveling over the top of hill at 55 mph. 

While it may be forcefully argued that a stranger, unaware of the intersection beyond the crown of the hill in question, and therefore unaware of potential peril, would not be guilty of reckless driving when he crossed the crest at fifty-five miles an hour, we do not think the same should be said of one who is a constant user of the highway at the point involved and who, in the nature of common experience, might anticipate a vehicle in the act, or on the verge, of turning into the intersection with which he was familiar. While plaintiff himself fixes the rate of speed at exactly the legal limit of fifty-five miles per hour, there can be no doubt that he crossed the crest of the hill at an unwarranted rate of speed, under the facts and circumstances of this case,  [***14]  and that the concurring, if not the proximate, cause of the accident was his violation of section 2154 (108) of the Code of Virginia. Noland v. Fowler, 179 Va. 19, 25, 18 S.E.2d 251, 254, 1942 Va. LEXIS 192, *13-14 (Va. January 19, 1942)

Still, complete control at all times is not a known legal duty. “The law does not impose the duty upon a driver to keep his automobile under complete control at all times.” Gale v. Wilber, 163 Va. 211, 221, 175 S.E. 739, 743 (1934) [Emphasis added]

At trial, petitioner was denied the right to cite a Tennessee case that indicated slight movements within a lane are not probable cause for an arrest and are not reckless driving. Here is State v. Garcia, 123 S.W.3d 335, 2003 Tenn. LEXIS 856 (Supreme Court of Tennessee, At Nashville October 1, 2003, Filed)

Prior to Officer Kohl’s stop of the defendant, the videotape reveals that Garcia was traveling at what appears to be a safe rate of speed in the far right lane of an interstate highway. The videotape also reveals that Garcia slowly moved his vehicle slightly within his lane of travel approximately twice over a period of approximately two minutes. At no point does the vehicle exhibit any sharp or jerking movements. While there is a short period of time when the vehicle is not visible on the videotape, we find no testimony in the record suggesting that the defendant exhibited any pronounced or exaggerated swerving during that brief time period. Moreover, we place little weight on the fact that there was considerable traffic on the interstate on the night of the defendant’s traffic stop.   The videotape reveals that several cars approached the defendant from the rear and easily passed his vehicle by moving to the next lane.   Additionally, the State does not contest that the defendant was driving in compliance with Tennessee Code Annotated section 55-8-123(1) (1998), which states:

Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic ․ [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made safely․

*** 

Accordingly, we hold that as a matter of law there was no reasonable suspicion to stop Garcia. While the defendant’s driving may not have been perfect, we saw no evidence of weaving on the videotape, and we reiterate that “it is the rare motorist indeed who can travel for several miles without occasionally varying speed unnecessarily, moving laterally from time to time in the motorist’s own lane, nearing the center line or shoulder, or exhibiting some small imperfection in his or her driving.” [Emphasis added]

3. Proximity of people

An essential element of reckless driving is the nearness of people.  

“It was the duty of a driver under this section when he reached a settlement, where persons were likely to be assembled and where children were apt to be, to slow down and have his car under such control as to be able to stop if confronted by a sudden emergency. Sheckler v. Anderson, 182 Va. 701, 29 S.E.2d 867 (1964), holding that where there is a failure to comply with this section, the defendant is liable for injuries resulting from a collision, unless the plaintiff is guilty of contributory negligence.” Mayo v. Commonwealth 218 Va . 644 

The 1995 case Bishop v. Commonwealth turns on the fact that the man behind the wheel, Bishop, was not moving and endangering people nearby when he was charged and arrested, though he was inebriated. The case holds, too that drunkenness, per se, is not reckless driving. Bishop v. Commonwealth, 20 Va. App. 206, 207, 455 S.E.2d 765, 765, 1995 Va. App. LEXIS 354, *1 (Va. Ct. App. April 11, 1995)

4. Acts that endanger nearby people

Speed is not reckless driving. “In Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970), this Court held that ‘recklessly’ . . . imparts a disregard by the driver  . . . for the consequences of his act and an indifference to the safety of life, limb or property’ and that speed alone does not constitute recklessness unless it endangers life, limb, or property.” Spencer v. City of Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358, 2006 Va. LEXIS 47, *4-5 (Va. April 21, 2006)  

“What distinguishes a speeding violation from the misdemeanor of reckless driving, and the misdemeanor from the felony of involuntary manslaughter, is the likelihood of injury to other users of the highways. And the degree of the hazard posed by a speeding automobile depends upon the circumstances in each case.” Mayo v. Commonwealth, 218 Va. 644, 645, 238 S.E.2d 831, 831, 1977 Va. LEXIS 301, *1 (Va. November 23, 1977)

“The word ‘recklessly’ as used in Va. Code Ann. § 46.1-189 imparts a disregard by the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb or property. Speed alone is not a violation of § 46.1-189, but only becomes so when it endangers life, limb or property.” Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970)

The ‘lesser-included charge’ problem

The Commonwealth of Virginia’s slapdash treatment of petitioner in giving notice of the essential elements is in evidence up to the last moment of trial.

Judge Lee convicts her of “improper driving,” which he says is a “lesser included charge” at § 46.2-869. Improper driving; penalty. It reads:

Notwithstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision and shall notify the court of such change. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500. [Emphasis added]

The district court imposes a double wrong on petitioner. 

  1. No evidence exists of any improper act, as no improper act was alleged in the charging instrument. The only essential element of reckless driving established in the instrument and at trial was movement of petitioner’s car. Without a primary improper act, can there be a lesser?
  2. For the law to allow the judge to switch charges after the state closes its case is to spring a trap on petitioner and convict her of a crime not alleged nor defended against.

The statute faces a test from the U.S. supreme court at Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644, 1948 U.S. LEXIS 2789, 14 Lab. Cas. (CCH) P51,261, 21 L.R.R.M. 2418 (Supreme Court of the United States March 8, 1948, Decided ), which prohibits judicial legerdemain.

Petitioner asks court’s patience to review her protections implied in Cole. 

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. ***  If, as the State Supreme Court held, petitioners were charged with a violation of § 1 [of Act 193 of the 1943 Arkansas Legislature], it is doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that they were not tried for or found guilty of it. It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. De Jonge v. Oregon, 299 U.S. 353, 362. [Emphasis added]

***[T]he State Supreme Court *** affirmed their convictions as though they had been tried and convicted of a violation of § 1 when in truth they had been tried and convicted only of a violation of a single offense charged in § 2, an offense which is distinctly and substantially different from the offense charged in § 1. To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.  We are constrained to hold that the petitioners have been denied safeguards guaranteed by due process of law — safeguards essential to liberty in a government dedicated to justice under law.

What’s more, state law § 46.2-869. Improper driving; penalty, imposes a third wrong on petitioner.

“Improver driving” lacks an antecedent statute creating a separate liability and legal duty against “improper driving.” Improper driving has not been criminalized by statute in the state of Virginia, yet here it is penalized, and that penalty of $500 imposed on petitioner.

The offense is undefined and vague. How does she know she won’t be charged again for this offense, under a different conception, as “improper driving” wasn’t alleged, argued or proven at her trial, and remains hanging over her as a possible cause of action? 

Petitioner objects to this state of affairs as a matter of law, and asks this court to rule unconstitutional such a penalty provision lacking antecedent liability statute.

Petitioner was tried on a charge not made, and convicted on a charge not tried. Petitioner asks this court if such an outcome of district courts across Virginia is lawful, respectful of people’s rights, honoring the state constitution and instilling confidence in public justice.

Argument

Petitioner says Judge Lee in district court lacked subject matter jurisdiction because the court’s authority was not properly evoked by the accuser. The accuser failed to provide the accused sufficient notice of the alleged offense, failed to allege the essential elements of the crime, and thus failed to sufficiently state a claim to evoke the court’s jurisdiction.

  1. The Virginia uniform summons is facially unconstitutional in that it forbids the state’s agent, the trooper or officer, from fulfilling his duty to properly charge an accused. A competent officer would, to maintain the state’s peace and dignity, approach an accused on all cylinders, as it were, identifying for the accused the essential elements of the alleged breach. The charging instrument in this case, the record shows, doesn’t “describe charge” as required. Rather, it states the name of the statute. It provides no narrative and alleges no evidentiary facts. It shows the officer is incompetent, made so by his form he is trained to use.
  1. The essential elements of reckless driving are absent as a matter of law from the very moment Trooper Frye pressed the button activating his blue lights. 

    As to facts, the transcript in this case indicates the petitioner had prepared for a trial but was rebuffed repeatedly in the exercise of her rights. She was denied counsel of her choice. No recording device. No charging instrument. Motion for evidentiary hearing denied. Repeated blocking of her pursuit of her theory of the case. Stymied pleading of statute. Rebuffed pleadings of case law. 
  1. To find Miss Tulis guilty of a “lesser included charge” violates her constitutional rights to notice. It also highlights another lack in Virginia’s legal system — that of legal standing. Where is corpus delecti? Where does complainant show it has suffered actual physical injury? Where does the commonwealth, as the alleged injured party, show itself harmed or the public interest aggrieved? Petitioner leaves these matters aside. But she reminds the court she was not charged with improper driving; she did not defend against that charge. Is she being justly and honorably treated by what appears a back door or escape hatch for district judges serving counties and towns as tax collector?

Petitioner asks this court to throw out the Virginia uniform summons as unconstitutional on its face, and order the commonwealth to prohibit its use immediately in the interest of justice. Petitioner asks this court to order troopers and all others to properly state all essential elements, to narrate offenses in terms of the statute, to allege evidentiary facts to give defendants sufficient legal notice. Proper notice is essential for there to be just and honorable government, and for the due process rights of the people – whether native Virginians or visitors in the state — to be respected, and their liberties and property defended.

Judicial extortion racket & ‘driving while blonde’

Petitioner believes the main issues dispositive of her claims are above. But she puts the following into the record to give the courts of appeal a glimpse of what happens in the judicial hinterlands, from whence few appeals come and which appear sorely to need supervision if the state doesn’t wish to stand accused of warlordism approved in Richmond.

Her sketch suggests justice is remote and unavailable in the commonwealth district courts, for those who know not their rights or are too poor to defend them, and for those who vigorously defend their rights as belligerent claimants in person, as has she.

Judge Travis Lee operates a kangaroo court among familiars, extracting fines for county and state. It’s a widespread problem across the United States. See Mike Maciag, “Addicted to fines[;] small towns in much of the country are dangerously dependent on punitive fines and fees,” Governing, September 2019. https://www.governing.com/topics/finance/gov-addicted-to-fines.html.

Mr. Frye testified in an ambush statement that the accused was traveling at 50 miles an hour. This witness’ claim is irrational and hardly credible; petitioner testified truthfully as to her known legal duty that she had set her cruise control at  69 mph on a 70 mph interstate. A blonde, sober businesswoman traveling alone through Virginia would have every reason to set cruise control at 1 mph below the limit to avoid offense, as she had done. It was late. She had long traveled. She had far to go. To allege her offense as consisting primarily of a 50 mph speed on an empty highway with no posted minimum is incredible.

Judge Lee relishes this perjured nugget. According to the transcript:

356. He stresses he is convinced that she was traveling at 50 mph in a 70 mph zone and says it is “a dangerous speed.” He says it is “dangerous to be below the posted limit” and that it is “dangerous to be playing with the radio.” 

358. “Some people are on the road doing 120 mph, even 140 mph, and it’s extremely dangerous to be doing 50,” he says.

360. Judge Lee says [ ] “the dangerousness of this conduct” merits a $500 fine.

The roadway was empty, and had she been doing 50 mph the trooper could easily have passed her. Judge Lee introduces at the last moment of trial a theoretical threat to public safety — others traveling at 120 mph. If such speeders were anywhere visible to state employee Frye, why was he waylaying a slowpoke at 50? 

The Virginia highway has no minimum speed, except if one is too slow in heavy traffic, § 46-2-877, Minimum speed limits, “No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.”

Phantom travelers zipping down the road at 120 mph are not in evidence; but Judge Lee conjures them to palliate his design to convict this club’s out-of-state victim for having the nerve to insist on her rights, or other purposes.

By seeming agreement among all the parties in this case, the court’s task is the pursuit of money, not justice.

No wonder the judge refused to allow a news reporter to run his phone as audio recorder during the trial. No wonder that the judge refused to allow the defendant her right to make an audio record to help make public what was done to her. The commonwealth attorney used her phone in the courtroom that morning, petitioner observed. Defendants without attorneys, it seems, are less estimable and worthy of regard as officers of the court. Security theater scripts out the hoi polloi’s having their phones and laptops open.

Defendant had made efforts to obtain a stenographer. The last one she had contacted, Huseby Global, said days before the trial none are available.

Smyth County circuit court is now open for trial de novo in this case. But what prospect does appellant have in this honorable court on any matter touching on facts in this case? A repeat of the abuse of process and perjury as in the lower court? A replay of folly and shame? Petitioner demands relief not as upon facts, but on the basis of law.

Petitioner has an absolute right to counsel of her choice, which was refused, and an absolute right to due process. Her treatment below by Judge Lee cries for reform from above:

  1. A grant to attorneys to have equipment of their choosing but discriminates against financially poor and pro se / sui juris defendants whose persons and defenses are presumed to account for nothing
  2. — Refusal to allow complainant counsel of her choice on grounds he is not a member of the bar
  3. — Refusal to grant request for an evidentiary hearing prior to trial to obtain sufficient notice and the right to know nature and cause of the accusations
  4. — Refusal to allow complainant to plead case law from Virginia appellate courts as to the essential elements of the offense
  5. — Refusal to allow petitioner to develop her theory of the case in the exercise of her due process rights under the 14th amendment
  6. — Refusal to honor the U.S. Constitution equal faith and credit clause and denial of her claim to the right to cite and quote the Tennessee case State v. Garcia
  7. — Refusal to allow petitioner to build foundation for questions she set to ask about the evidence 
  8. — Refusal to allow relief to petitioner from hidden facts sprung in ambush on the complainant, acting sui juris, at trial. Such purported “facts” would have been properly brought into view in the preliminary hearing and allowed her — and her counsel — to evaluate them.
  9.  — Refusal to act justly, fining complainant the maximum fine of $500 on the “lesser included charge” when the state had not met its burden of proof of essential elements of reckless driving, even with perjured testimony in favor
  10. — Refusal to grant accused the presumption of innocence and operating on a preponderance of evidence standard rather than beyond reasonable doubt

Virginia has a court system for the specific purpose of prohibiting and punishing criminal rackets by armed men, bandits, swift-moving extortioners. But villains in these classes are employed by the state itself; the ripoff petitioner suffers is not from without government by private brigands, but from within, by people on its payroll.

“A fundamental requirement of due process is the opportunity to be heard. It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 737, 1985 U.S. Dist. LEXIS 18697, *1, 22 ERC (BNA) 2079, 15 ELR 20977 (D. Kan. June 20, 1985). District court in Smyth county rejects petitioner’s opportunity to be heard and is not fit to protect the public safety and private property.

Petitioner asks this court to overlook her rough-hewn pleadings, as she is not practiced in the art of law and argument, and to do the following:

  1. Overturn her conviction for improper driving
  2. Find the Virginia uniform summons unconstitutional and order it be thrown out to uphold the rule regarding the state’s need to allege, argue and prove the essential elements in criminal matters
  3. Overturn the improper driving penalty statute absent an antecedent liability statute

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