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West v. Commonwealth4/14/1992
abstracts of the appellant's convictions, certified by the Commissioner of the Department of Motor Vehicles, a prima facie presumption was created that the convictions were obtained under law substantially conforming to Code § 18.2-266. See Bouldin v. Commonwealth, 4 Va. App. 166, 355 S.E.2d 352 (1987). The burden to rebut the evidence thus shifted to the appellant. "This shift in the burden of producing evidence occurs because of the presumption that the Commissioner of the Division of Motor Vehicles has kept accurate records and has made at least a tentative determination of conformity." Id. at 169, 355 S.E.2d at 354 (citation omitted).
The Covington ordinance paralleled and substantially conformed to the provisions of Code § 18.2-266. The only difference was that the statute added a per se offense of operating a motor vehicle with a blood alcohol level of 0.15 percent or more. In Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991), we stated that when an habitual offender determination is based on a conviction from another state, not every aspect of the foreign state's law must conform to Virginia law. We said, "Only that prohibition of the other state's law under which the person was convicted must substantially conform." Id. at 331, 411 S.E.2d at 446.
Applying the Cox rationale, we find that the Covington ordinance under which the appellant was convicted paralleled and substantially conformed to Code § 18.2-266(ii) and (iii). The fact that Code § 18.2-266(i) authorized punishment for a per se offense, while the Covington ordinance does not, is of no consequence. The provision under which the appellant was convicted was substantially the same as its counterpart in Code § 18.2-266.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
Disposition
Affirmed.
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