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Ogden v. Commonwealth8/24/1993
he does not come within the purview of the portion of Fairfax County Code § 82-4-21 that was declared invalid in Knott and Holtz. See id. (defendant, who was convicted under valid portion of statute as a first offender, could not challenge the invalid portion of the statute relating to second offenders). Having made no claim that Fairfax County Code §§ 82-4-17 and 82-4-21 are otherwise invalid as applied to him, [Ogden's] challenge of this conviction under the Fairfax ordinance constitutes an impermissible collateral attack.
Id. at ___, ___ S.E.2d at ___. Therefore, we reject Ogden's claim that his first offense driving while intoxicated conviction under Fairfax County Code §§ 82-4-17 and 82-4-21 cannot serve as a predicate offense for his adjudication as an habitual offender.
Moreover, the information was properly filed pursuant to Code § 46.2-353, which provides that "the attorney for the Commonwealth, on receiving the transcripts or abstracts from the Commissioner provided for in § 46.2-352, shall forthwith file information against the person named therein in the court of record having jurisdiction of criminal offenses . . . ." Ogden construes the language requiring the Commonwealth's Attorney to "forthwith file information" to mean that the information must be verified under oath. Because the signature on the information appears to be a stamp of the Commonwealth's Attorney's signature, rather than an actual signature, Ogden contends that the information was not verified under oath and, therefore, was inadmissible.
The plain language of Code § 46.2-353 does not require the information to be verified under oath, and we find no authority for reading such a requirement into the statute. Ogden's reliance on the statute governing the petition for a writ of quo warranto, which must be "verified by oath," is misplaced. See Code § 8.01-637(A). Such a petition serves to allege material facts that make out the case for the granting of the writ of quo warranto. See Code § 8.01-637(B). In contrast, the habitual offender information merely transmits to the court the certified transcript from the DMV. There were no allegations of fact in the information warranting verification under oath. Accordingly, we reject Ogden's contention that the information was defective for failure to be verified under oath.
For these reasons, the judgment of the trial court is affirmed.
Affirmed.
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