Commonwealth v. Romberger

The Commonwealth of Virginia, by counsel, and William H. Romberger, defendant, by counsel, came upon Defendant’s de novo appeal from a conviction of driving under the influence, Defendant having filed a motion to suppress and a motion to dismiss. The Commonwealth, having filed a motion to re-consider the denial of its motion to continue and, if denied, moved the Court to enter an order of nolle prosequi, upon consideration of the pleadings, memoranda, and arguments of counsel, the Court makes the following findings. .

Defendant was stopped and subsequently arrested for driving under the influence in violation of Virginia Code § 18.2-266. Following conviction in the General District Court and on appeal to this Court, Defendant filed a motion to suppress, and the motion was set for hearing on February 6, 2009. Immediately prior to the hearing, the Commonwealth informed the Court and defense counsel that it had by inadvertence failed to subpoena the arresting officer, a material witness, and moved for a continuance. The Court denied the motion to continue, and the Commonwealth notified the Court it was unable to present evidence as to the motion to suppress without this witness. Defendant, by counsel, without offering evidence or requesting an evidentiary hearing, asked the Court to grant the suppression motion by default and to dismiss the charge, at which time the Court took the matter under advisement. Subsequently, the Commonwealth filed a motion to reconsider the Court’s denial of the motion to continue and, as an alternative, to grant its motion to enter an order of nolle prosequi to the pending charge.

*268In consideration of the foregoing, the Court hereby denies the Commonwealth’s motion for reconsideration due to the Commonwealth’s failure to exercise due diligence in procuring the witness but, finding there is no evidence that the motion for an order nolle prosequi was made with a vindictive intent or as an unfair and oppressive tactic, this motion is hereby granted. See e.g. Arnold v. Commonwealth, 18 Va. App. 218, 222 (1994); Battle v. Commonwealth, 12 Va. App. 624, 630 (1991).