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Penton v. City of Norfolk3/23/1993
OPINION BY JUDGE LARRY G. ELDER
Charles F. Penton, Jr. and John David Hudgins appeal from their convictions under Norfolk City Code § 25-251 for driving while under the influence. Apart from the fact that Hudgins's offense occurred in May, 1991, and Penton's in June, 1991, the facts in each case are the same. Appellants argue that their convictions are invalid because the punishment prescribed in the ordinance exceeded the punishment authorized by state law at the time of the ordinance's enactment, thereby rendering the ordinance void from its inception. After examining the relevant statutes and ordinances, we find the ordinance valid insofar as driving while under the influence offenses, and we affirm appellants' convictions.
These cases involve several interrelated state and local provisions proscribing driving while under the influence of alcohol or self-administered drugs. Code § 18.2-266 proscribes driving while under the influence of alcohol, and Code § 18.2-270 provides that a violation of that statute is a Class 1 misdemeanor. Prior to July 1, 1990, Code § 18.2-11 provided that the maximum punishment for a Class 1 misdemeanor was twelve months in jail and/or a $1,000 fine. Code § 15.1-132 grants cities within the state the authority to enact similar ordinances for driving while under the influence. Under that statute, "such ordinances may provide the same penalties . . . as are provided by general law for similar offenses," but "no such ordinance shall provide for a lesser punishment." Also applicable is Code § 15.1-901. Prior to February 21, 1991, that code section limited the penalties imposed by any municipal ordinance enacted pursuant to state authority to "a fine of $1,000 or imprisonment . . . for twelve months."
Pursuant to the state's grant of authority under Code § 15.1-132, the City of Norfolk enacted Norfolk City Code §§ 25-251 and 25-255, which follow the language of the state code sections proscribing driving while under the influence as a Class 1 misdemeanor. In keeping with the requirements of Code § 15.1-132 and the more general Code § 15.1-901, Norfolk dictated the same punishment for a Class 1 misdemeanor as did the Virginia Code--a maximum of twelve months in jail and a $1,000 fine.
As of July 1, 1990, the General Assembly amended Virginia Code § 18.2-11 to increase the maximum punishment for a Class 1 misdemeanor to twelve months in jail and/or a $2,500 fine. At that point, the punishment provided for a conviction under the Norfolk City Code was less than that provided for conviction under the Virginia Code. Because Code § 15.1-132 requires that local ordinances enacted pursuant to it provide penalties equal to or greater than those specified in the Virginia Code, the City of Norfolk amended its Code § 1-11 to bring it into compliance, by Ordinance No. 36,110, effective July 17, 1990. Since July 17, 1990, the Virginia and Norfolk Codes have provided the same penalties for driving while under the influence.
In spite of Norfolk's efforts to comply with state law, the amendment of Norfolk City Code § 1-11 resulted in a violation of the more general portion of the Code, § 15.1-901. That section, as set forth above, limited the penalties for violation of local ordinances to "a fine of $1,000 or imprisonment . . . for twelve months." When the Virginia General Assembly changed the maximum penalties allowed under Code § 18.2-1
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