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Commonwealth v. Knott9/11/1990
§ 18.2-270. However, the ordinance did not specifically include prior convictions under the provisions of Code § 18.2-266 for consideration in sentencing an offender to enhanced punishment. Thus, at the time that the ordinance was in effect, it provided for a lesser punishment than the general law under Code § 18.2-270.
In Mitchell, we examined the validity of a similar local ordinance prohibiting driving under the influence of alcohol or drugs.
We held that the ordinance was invalid following the repeal of Title 18.1 and the adoption of Title 18.2 because the ordinance was adopted in 1982, after Title 18.1 had been repealed, yet made no provision reflecting the repeal. A reference to Code § 18.2-266 et seq. was inserted into the language of the ordinance, but was not adopted pursuant to Code § 15.1-504, and was therefore a nullity. Mitchell, 1 Va. App. at 488, 340 S.E.2d at 174. In the present case, Code § 18.2-266 et seq. was not incorporated by reference for a different reason: the Fairfax County ordinance stated only that other local ordinances in the Commonwealth or the laws of other states could be considered as prior convictions. Although such other local ordinances and laws were required to be substantially similar to Code §§ 18.2-266 through 18.2-269, convictions under Code § 18.2-266 itself were not included within the purview of the ordinance.
It is a fundamental principle of statutory construction that penal statutes "must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute." Crews v. Commonwealth, 3 Va. App. 531, 536, 352 S.E.2d 1, 3 (1987). Following this principle, we find that Fairfax County Code § 82-4-21 did not provide for convictions under Code § 18.2-266 to be considered as prior convictions for the purposes of enhanced punishment. The ordinance was therefore invalid under Code § 15.1-132 as the trial court correctly determined.
For the reasons stated above, we affirm the decision of the trial court.
Disposition
Affirmed.
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