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Fraser v. Commonwealth7/27/1993
e it did not provide a punishment that was equal to or greater than the punishment provided by the general law in Virginia, as is required under Code § 15.1-132. Holtz, 12 Va. App. at 1152, 408 S.E.2d at 562; Knott, 11 Va. App. at 47, 396 S.E.2d at 150. Accordingly, neither Knott's nor Holtz' DWI convictions as second offenders under the Fairfax ordinance could be used as a predicate offense to an habitual offender adjudication. Id.
Fraser misconstrues our holding in the Knott and Holtz cases as invalidating Fairfax County Code §§ 82-4-17 and 82-4-21 entirely and for all purposes. To the contrary, we held that Fairfax County Code § 82-4-21, the penalty provision, was invalid only to the extent of its enhanced penalty provision for second offenders. The substantive provision of Fairfax County Code § 82-4-17 and the first offender penalty provision of Fairfax County Code § 82-4-21 remain valid. See Sos v. Commonwealth, 14 Va. App. 862, 864-65, 867, 419 S.E.2d 426, 427, 429 (1992). In Sos, we held that invalid portions of a statute may be severed and ignored "if the remaining valid portions of the act are sufficient to accomplish their purpose in accordance with the legislative intent." Id. at 865, 419 S.E.2d at 427. We also held that a party cannot challenge that portion of a statute that does not affect him. Id. at 865, 419 S.E.2d at 428. Therefore, because Fraser was convicted for
DWI under Fairfax County Code § 82-4-17 and punished as a first offender under Fairfax County Code § 82-4-21, 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, Fraser's challenge of this conviction under the Fairfax ordinance constitutes an impermissible collateral attack.
Affirmed.
Judges Footnotes
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