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Flaherty v. Commonwealth3/24/1992
OPINION BY JUDGE LARRY G. ELDER
Dana Lynn Flaherty, appellant, appeals from a final order of the Circuit Court of Clarke County adjudicating her an habitual offender, revoking her privilege to operate a motor vehicle for ten years, and ordering her to surrender her operator's license. On appeal, she asserts: (1) that a 1985 conviction for driving with a blood alcohol concentration of 0.15 percent or more by weight by volume, in violation of Code § 18.2-266(i), should not be considered a qualifying conviction for habitual offender status under Code § 46.2-351; and (2) that a 1983 conviction was for violating Code § 18.2-388 and should not be considered a qualifying conviction for habitual offender status under Code § 46.2-351. The judgment of the trial court is affirmed.
Appellant's 1983 conviction was pursuant to a warrant charging her with a violation of Code § 18.2-388 (the "drunk in public statute") and not Code § 18.2-266 (the "driving under the influence" statute). Although the warrant cited Code § 18.2-388, the description of the offense was "operate a motor vehicle while under the influence of alcohol." The trial court marked this warrant "guilty as charged." The 1985 conviction was pursuant to a warrant charging appellant with driving while her blood alcohol concentration was by weight by volume 0.15% or more, a violation of Code § 18.2-266(i), which was in effect at the time of the offense in December 1984.
At trial, appellant argued that Code § 46.2-351, being penal in nature and effect, should be strictly construed. Consequently, she asserted, neither the 1983 nor the 1985 conviction fell within its requirements. The court ruled that the habitual offender statute was remedial in nature and thus should be construed broadly. The
court found that both the 1983 and 1985 convictions counted toward appellant's habitual offender status.
Code § 46.2-351 details the requirements for finding a person an habitual offender. A court must determine that a person has accrued on his driving record:
Three or more convictions... singularly or in combination, of the following separate offenses arising out of separate acts:
...
b. Driving or operating a motor vehicle while under the influence of intoxicants or drugs in violation of § 18.2-266 or subsection A of § 46.2-341.24.
Appellant's position with regard to her 1985 conviction is that Code § 46.2-351 does not include violations of Code § 18.2-266(i) as predicate convictions for a finding of habitual offender status. Her argument is based on the contention that Code § 18.2-266(i) is distinguishable from the balance of Code § 18.2-266 both because the elements that go to prove a violation of it set it apart and because the critical phrase "under the influence" is missing from its terms.
This Court discussed the nature of inquiries under Code § 18.2-266(i) in Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).
The inquiry under Code § 18.2-266(i) is not whether a driver was in fact "under the influence of alcohol" to a degree that his ability to drive safely was affected; rather, the issue is whether at the tim
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