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Webb v. Commonwealth3/18/2003
Argued at Richmond, Virginia
MEMORANDUM OPINION
Anton Lavelle Webb, appellant, was convicted of driving under the influence ("DUI") in violation of Code § 18.2-266. Webb's conviction was elevated to a felony offense for sentencing purposes, pursuant to Code § 18.2-270(E). On appeal, Webb contends the trial court erred in admitting evidence of a prior DUI conviction, on the ground that the trial court improperly based judicial notice of the ordinance under which he was previously convicted on his arrest warrant. He reasons that his conviction should be reversed because the trial court therefore could not establish the ordinance's substantial similarity to Code § 18.2-266. For the reasons that follow, we affirm the decision of the trial court.
Background
The material facts underlying this appeal are not in dispute. Webb was indicted on June 5, 2001 for driving while under the influence, in violation of Code § 18.2-266, and was convicted in a bench trial on July 12, 2001. At trial, the Commonwealth sought to establish that Webb had two prior convictions for DUI, in order to elevate the offense to a felony pursuant to Code § 18.2-270(E). Only the admission of his conviction in 1992 under § 9-3 of a Southhampton County, Virginia ordinance is at issue on appeal.
In order to elevate the conviction to a felony, the Commonwealth was required to establish Webb's 1992 conviction and to prove that § 9-3 of the Southhampton County ordinance and Virginia Code § 18.2-266 were substantially similar. The Commonwealth sought to have Webb's arrest warrant admitted into evidence for that purpose. The arrest warrant read, in part:
he accused did unlawfully in violation of Section 9-3, Code or Ordinance of this city, county, or town operate a motor vehicle (engine or train) while such person had a blood alcohol concentration of 0.10% or more by weight by volume and/or while such person was under the influence of alcoholic beverages or other self-administered intoxicants or drugs of whatsoever nature . . . CLASS one MISDEMEANOR.
Webb objected to the arrest warrant's admission, on the ground that the Commonwealth was required to provide the trial court with the text of § 9-3 of the Southhampton County ordinance. He argued that the references in the warrant were not a proper substitute for the ordinance text and, therefore, the warrant did not provide a sufficient basis upon which to determine the ordinance's substantial similarity to Code § 18.2-266. The trial court disagreed and took judicial notice of the ordinance from the language that appeared on the warrant, stating it "could consider the charge as it appears on the face of the warrant." The court found that the Southhampton ordinance was substantially similar to the provisions of Code § 18.2-266.
Analysis
On appeal, Webb contends the trial court erred in admitting the arrest warrant from his 1992 conviction into evidence, on the ground that it does not constitute a reliable basis upon which to take judicial notice and to determine the ordinance's substantial similarity to Code § 18.2-266. This contention is without merit.
"Judicial notice permits a court to determine the existence of a fact without formal evidence tending to support that fact." Scafetta v. Arlington County, 13 Va. App. 646, 648, 414 S.E.2d 438, 439, aff'd on reh'g, 14 Va. App. 834, 425 S.E.2d 807 (1992). "A trial court may take judicial notice of those facts that are either (1) so 'generally known' within the jurisdiction or (2) so 'easily ascertainable' by reference to reliable sources that reasonably informed people in the community would not regard them as reasonably subj
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