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Flaherty v. Commonwealth3/24/1992
include a conviction of any offense in violation of § 18.2-266," and that "a conviction for a violation of § 18.2-266(i) may be used as one of the three convictions required to bring an individual within the definition of an habitual offender." 1985-86 Op. Att'y Gen. 204-205 (1985). Subsequent to this 1985 opinion, the General Assembly amended the Habitual Offender Act in 1989, Acts 1989 cc. 705, 727, without altering the Attorney General's construction.
The legislature is presumed to have had knowledge of the Attorney General's interpretation of the statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view. Deal & Assoc.. Inc. v. Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983) (citation omitted).
We hold, therefore, that a conviction under Code § 18.2-266(i) is a predicate conviction to a finding of habitual offender status under Code § 46.2-351.
With respect to her 1983 conviction for violating Code § 18.2-388, appellant correctly asserts that a conviction for Code § 18.2-388 lies outside the purview of Code § 46.2-351. However, appellant is incorrect in arguing that her 1983 conviction, allegedly for violating Code § 18.2-388, may not stand as a predicate conviction to the trial court's determination that she is an habitual offender.
The warrant with which appellant was charged in 1983 incorrectly cited the code section at issue as Code § 18.2-388, which goes to public drunkenness. However, the incorrect citation of a code section in a warrant does not control determination of what offense was charged when the defendant plainly had notice of the true nature of the charge against him or her. Williams v. Commonwealth, 5 Va. App. 514, 516-17, 365 S.E.2d 340, 341 (1988). Here, not only was the description of the actual offense in the warrant correct ("Operate a motor vehicle while under the influence of alcohol"), but the summons involved in the 1983 conviction accurately identified the statute at issue as Code § 18.2-266. Appellant had sufficient notice of the actual crime with which she was charged notwithstanding the misrecital of the statute
in the warrant.
The court's Disposition of the 1983 case merely adds further proof that appellant was not convicted of public drunkenness, a class four misdemeanor punishable by no more than a $100 fine. Appellant was fined $200 and her license was suspended pending completion of ASAP, punishments that clearly follow a driving while intoxicated conviction.
The record leaves no room for doubt that appellant was convicted of driving while intoxicated in 1983. The trial court's ruling that the 1983 conviction was for a violation of Code § 18.2-266 is supported by the record, and we will not disturb it on appeal.
In light of the foregoing analysis, the judgment of the trial court is affirmed.
Affirmed.
Disposition
Affirmed.
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