THOMAS K. PLOFCHAN, JR. v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
May 8, 2007, Decided
Kleptach recorded Thomas K. Plofchan, Jr.’s speed at sixty-seven miles per hour and initiated a traffic stop. He issued Plofchan a summons charging him with a violation of Code § 46.2-878. Plofchan was charged with violating Code § 46.2-878. Following a bench trial, the Circuit Court of Loudoun County (Virginia) convicted him of speeding in violation of Va. Code Ann. § 46.2-870. Defendant appealed. On appeal he contends the trial court erred when it failed to grant his motion to strike because there can be no lesser included offenses of a traffic violation.
The issue to be decided here is whether traffic infractions are treated like criminal offenses and other charges and can one be construed as a lesser-included offense of another.
A traffic infraction, while not criminal in nature, is a violation of law punishable as provided in § 46.2-113, which is neither a felony nor a misdemeanor, Code § 46.2-100. As such, traffic infractions are punishable by a fine of not more than that provided for a Class 4 misdemeanor under § 18.2-11. Code § 46.2-113. Additionally, under Code § 46.2-937, for purposes of arrest, traffic infractions shall be treated as misdemeanors. Thus, for certain purposes, traffic infractions are treated like criminal offenses and other charges and nothing precludes one being a lesser-included offense of another.
Plofchan also asserts that for an offense to be lesser included of another, it must be of lesser magnitude of the other. However, whether one offense is a lesser included offense of the other depends upon whether the elements of the greater offense necessarily include all elements of the lesser. A lesser included offense is an offense which is composed entirely of elements that are also elements of the greater offense. An offense is not a lesser included offense of another if each offense contains an element that the other does not. Contrary to Plofchan’s assertion, there is no requirement that a lesser-included offense be of a lower grade or carry a different potential penalty than the greater offense. The potential punishment accorded each offense is immaterial to the determination of whether one offense is a lesser-included offense of another.
The judgment of the trial court was affirmed.
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