Easter v. Commonwealth3/7/2000
Argued at Richmond, Virginia
JUDGE MARVIN F. COLE
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY William L. Wellons, Judge
James L. Easter, appellant, appeals his conviction of driving under the influence of alcohol (DUI), third offense, in violation of Code § 18.2-266. Appellant contends: (1) the conviction violated his right against double jeopardy because he suffered an improper seven day license suspension when the officer failed to file the required incident report, and (2) the Commonwealth improperly amended the warrant to charge a third offense on de novo appeal in circuit court, when, pursuant to a plea agreement, he had already pled guilty to, and was convicted of, DUI, second offense, in general district court. Finding no error, we affirm the conviction.
FACTS
On June 2, 1998, Officer Sterner arrested appellant for DUI. Although Sterner failed to file the statutorily required sworn incident report with the magistrate, he appeared before the magistrate to swear to the grounds for arrest. Appellant's operator's license was administratively suspended for seven days, pursuant to Code § 46.2-391.2. Appellant did not appeal the administrative suspension during the suspension period.
In general district court, although the Commonwealth had evidence of sufficient convictions to amend the charge to a third offense, it agreed to amend the warrant to DUI, second offense, in exchange for a guilty plea. Appellant pled guilty to, and the court convicted him of, DUI, second offense. Appellant later noted his appeal to the circuit court.
In circuit court, the court amended the charge to DUI, third offense, over appellant's objection that the amendment violated his double jeopardy and due process rights. Appellant stipulated that he entered into the plea agreement for the lesser offense in consideration of the Commonwealth's agreement not to amend the charge to the greater offense.
ANALYSIS
I.
Code § 46.2-391.2(B) requires that romptly after arrest and service of the notice of suspension, the arresting officer shall forward to the magistrate a sworn report of the arrest that shall include . . . a statement setting forth the arresting officer's grounds for belief that the person violated . . . § 18.2-266 . . . .
Appellant contends that because the officer failed to file this report, the administrative suspension was improper and penal in nature. Therefore, he claims he twice suffered punishment for the same offense in violation of his right against double jeopardy.
We have held that the administrative suspension is civil and remedial, not penal, in nature, for double jeopardy purposes. See Ingram v. Commonwealth, 29 Va. App. 759, 762-63, 514 S.E.2d 792, 794 (1999) (citing Tench v. Commonwealth, 21 Va. App. 200, 208, 462 S.E.2d 922, 925 (1995), and Brame v. Commonwealth, 252 Va. 122, 130-32, 476 S.E.2d 177, 182-83 (1996)). We have also held that " ny deviation from proper procedure does not change the fundamental character of the sanction, which is civil and remedial." Id. at 768, 514 S.E.2d at 797. The failure of the officer to comply with the statute did not transform the suspension into punishment for double jeopardy purposes.
Appellant claims, however, that he did not have an adequate remedy to challenge the non-compliance and, therefore, the failure to follow the statute should render the suspension punishment. He contends the statute only allows review for probable cause. Code § 46.2-391.2(C) provides:
Any person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period
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