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Turner v. Commonwealth9/3/1991
VASAP referral. Code § 18.2-271.1(A) provides:
Any person convicted . . . any second offense . . . may, with leave of Court or upon Court order, enter into an alcohol safety action program. . . . If such person has never entered into an alcohol safety action program . . . in keeping with the procedures provided for in this section, and upon motion of the accused or his counsel, the court shall give mature consideration to the needs of such person in determining whether he be allowed to enter such program.
The Commonwealth contends that the second quoted sentence limits eligibility for a VASAP referral to those who have not previously been so referred. We reject this reading of the statute. The first sentence of § 18.2-271.1(A) defines the eligibility for a referral. The second sentence merely requires that special consideration be given in the case of one who has not been referred previously.
(2) Code § 18.2-271.1 did not require the trial court to grant either Turner's or Basham's motion for VASAP referral. Whether to grant either motion lay within the sound discretion of the trial court. However, the approved statements of facts establish conclusively that the trial court abdicated its exercise of discretion in favor of compliance with the Commonwealth's Attorney's policy. This abdication was an abuse of discretion. Furthermore, Turner and Basham were entitled, under principles of due process of law, to have their cases decided by the judge, not by the Commonwealth's Attorney, and to have decisions predicated upon the court's judgment and assessment of the facts, not upon a recited deference to the position of the Commonwealth's Attorney.
For the foregoing reasons, these cases are reversed and remanded.
Reversed and remanded.
Disposition
Reversed and remanded.
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