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Moore v. Commonwealth3/24/1992
. 299 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
Id. at 304. In the present case, each of the charges at issue requires proof of a fact the others do not. Driving after having been declared an habitual offender requires proof of appellant's status as an habitual offender and his operation of a motor vehicle after having been so declared. Code § 46.2-357. Reckless driving requires proof that appellant operated a motor vehicle in a manner that endangered others. Code § 46.2-852. Attempting to elude a police officer requires proof that appellant operated a motor vehicle in willful or wanton disregard of signals from a police officer to stop. Code § 46.2-817.
If a second prosecution survives the Blockburger test, under Grady a court must then determine whether the government, "to establish an essential element of an offense charged... will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 110 S. Ct. at 2093 (emphasis added). Conversely, "if in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted... the double jeopardy clause would bar subsequent prosecution of the component offense." Id. n.11 (emphasis added). Appellant argues that his act of driving, proven in the first prosecution, was necessary to establish an essential element of the second prosecution. However true that may be, it is not relevant to the test laid out in Grady. In Grady, the Supreme Court clearly stated that the conduct proved in the second prosecution must have constituted an offense appellant has already been prosecuted or proved in the first prosecution all of the elements of the second offense.
In Commonwealth v. Yingling, 595 A.2d 169, the court found that a subsequent prosecution for driving under the influence of alcohol after a conviction for underage consumption of alcohol was not barred by Grady. In Yingling, the court concluded that since the state was not required in the driving under the influence prosecution to prove the conduct that constituted the underage drinking offense, the second prosecution was not barred. Id. at 171. Consequently, the state was not proving
conduct that constituted the offense for which the defendant had already been prosecuted. Id. at 171-72.
In the first prosecution in the case before us, appellant was not charged with the offense of driving. Driving was merely an element of the two misdemeanors for which he was previously convicted. Under the facts of this case, in order for Grady to bar the second prosecution, the government would have needed to prove either reckless driving or eluding a police officer as conduct constituting all of the elements of driving after having been declared an habitual offender or an essential element of driving after having been declared an habitual offender. The mere fact that the two prosecutions involved a single, overlapping element of proof is not, in itself, enough to invoke the protections of the double jeopardy clause. For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
Disposition
Affirmed.
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