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The Cite: Court of Appeals of Virginia, Chesapeake. Michael Andre ARTIS v. COMMONWEALTH of Virginia. Record No. 2472-07-1. Nov. 12, 2008.

Intro: In an unpublished DUI opinion, the Virginia Court Of Appeals affirmed a conviction when the main basis for appeal was that the trial judge would not entertain a constitutional challenge not timely filed.

Excerpts from the opinion:

We granted Artis's petition for appeal on the sole question whether "the trial court abused its discretion in applying Code § 19.2- 266.2(A)(iii) and Code § 19.2-266.2(B)." Artis acknowledges that he did not comply with the notice requirements of Code § 19.2-266.2. He argues, however, that the trial court erred by failing to consider the motion under the "interests of justice" exception contained in the statute. We disagree and affirm the judgment of the trial court.

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At the conclusion of the presentation of the Commonwealth's case, in arguing his motion to strike, Artis asserted for the first time that his 1998 DUI conviction was not valid to support the offense charged, as a second or subsequent offense.

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Artis argued that even though he failed to give the required notice of his intent to challenge the local code section's constitutionality, the ends of justice required the trial court to consider that issue.

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Under Code § 19.2-266.2, defendants are required "to take certain procedural steps in order to exercise or vindicate [their] constitutional rights." Magruder v. Commonwealth, 275 Va. 283, 300, 657 S.E.2d 113, 121 (2008). "Such requirements are not unconstitutional but 'serve[ ] legitimate state interests in protecting against surprise, harassment, and undue delay.' " Id. (quoting Michigan v. Lucas, 500 U.S. 145, 152-53 (1991)). We have refused to consider a challenge to the constitutionality of a statute where a motion for dismissal of warrant or indictment on the ground that a criminal statute is unconstitutional was not properly presented to the trial court in compliance with Code § 19.2-266.2. See Johnson v. Commonwealth, 37 Va.App. 634, 644-45, 561 S.E.2d 1, 6 (2002); Morrison v. Commonwealth, 37 Va.App. 273, 279, 557 S.E.2d 724, 727 (2002). The requirement that such a motion be made and heard before trial serves the valid purpose of preserving the Commonwealth's right to appeal an adverse ruling. See Code §§ 19.2- 398(E) and 19.2-400; Upchurch, 31 Va.App. at 53, 521 S.E.2d at 292.

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Artis's "interests of justice" argument also fails. Notwithstanding the validity of any provision of the local code, each warrant, the one charging the instant DUI offense, and the one charging the underlying 1998 prior DUI offense, describes the offense charged and cites both the state code section, 18.2-266, and the local code section, 26-72. Accordingly, in each instance Artis was properly informed of the nature and character of the charge against him. He was, in fact, convicted and sentenced for DUI in violation of Code § 18.2-266, the state statute, which he did not challenge.

The judgment of the trial court is affirmed.

DISCUSSION: This is typical, especially in DUI cases. The DUI defense lawyer must be extremely careful to abide by all deadlines. Because drunk driving cases are so unpopular, and because many trial judges are annoyed in having to deal with DWI cases, don’t expect a “do-over” if you blow a deadline.

This goes for lawyers and also for defendant’s representing themselves.