 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cox v. Commonwealth11/26/1991
This appeal is from a finding by the trial court that the appellant is an habitual offender under Code § 46.2-351. We hold that the trial court erred in finding that a West Virginia ordinance substantially conforms to provisions of Code § 18.2-266 because it permits convictions for acts which could not be the basis for convictions under Code § 18.2-266.
The Circuit Court of Alleghany County found that the appellant is an habitual offender. This finding was based on a certified abstract from the Virginia Division of Motor Vehicles showing that appellant had one Virginia conviction and two West Virginia convictions for driving while intoxicated. The West Virginia convictions were obtained under a city ordinance of Lewisburg, West Virginia. Records introduced of the West Virginia convictions reflect only that the appellant "did unlawfully operate" an automobile "upon a public street or highway . . . and . . . commit . . . D.U.I. 1st" in violation of both state statute and local ordinance.
At the hearing, appellant argued that the Lewisburg ordinance did not conform to the Virginia statutes regarding driving while under the influence of alcohol because the Lewisburg ordinance was substantially broader, encompassing additional offenses. The trial court ruled that the Lewisburg ordinance was substantially similar to Virginia Code §§ 18.2-266 and 18.2-269, and declared the appellant an habitual offender.
Copies of the applicable Lewisburg city ordinance were submitted to the trial court and were made a part of the record of this appeal. Article IV of the Lewisburg city code addresses driving while under the influence of alcohol or drugs, reckless driving and related provisions. Certain conduct not described by Code § 18.2-266 is declared unlawful by Article IV of the Lewisburg City Code: (1) driving a vehicle while being an habitual user of any controlled substance; (2) knowingly permitting one's vehicle to be driven by another who is under the influence of alcohol; and (3)
knowingly permitting one's vehicle to be driven by another who is an habitual user of a controlled substance.
In Shinault v. Commonwealth, 228 Va. 269, 321 S.E.2d 652 (1984), the Supreme Court held that two state statutes are not substantially conforming where one, a North Carolina statute, required a conclusive presumption of guilt when the offender possessed a blood-alcohol level of .10, while the other, a Virginia statute, allowed for a rebuttable presumption of guilt under the same circumstances.
The rationale in Shinault is instructive. Although two statutes may have "a general likeness" to one another, the effect of the differing presumptions is substantial. Under the North Carolina statute, one would necessarily be guilty of an offense if found to have been driving with a blood-alcohol content of .10. However, under the Virginia statute, one would not necessarily be found guilty of an offense even though having been found to have committed the same act. In other words, if a person may be convicted of an offense under another jurisdiction's statute for conduct
which might not result in a conviction under Code § 18.2-270, the statutes are not "substantially conforming."
Moreover, to allow a conviction in another state to be the basis for a finding that a person is an habitual offender would expand Code § 46.2-351 beyo
Page 1 2 Virginia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|