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Cox v. Commonwealth11/26/1991
nd its stated limits if the conviction in the other state was based on an act which would not be a violation of Code § 18.2-266. The General Assembly expressly designated certain traffic offenses which should be considered in determining if one is an habitual offender. See Code § 46.2-351. One of these is driving or operating a motor vehicle while under the influence in violation of Code § 18.2-266. See Code § 46.2-351(1)(b). If a conviction in another state is based on conduct which is not a violation of Code § 18.2-266, then to consider it under Code § 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized. Therefore, another state's law permitting a conviction for an act not constituting an offense under Code § 18.2-266 is not substantially conforming under Code § 46.2-351.
(1) This does not mean that another state's law regarding driving while under the influence of intoxicants or drugs must substantially conform in every respect to Code § 18.2-266. Only that prohibition of the other state's law under which the person was convicted must substantially conform.
In this case, the record of appellant's convictions in West Virginia indicates only that he was convicted under a state statute and a city ordinance. This description permits us to conclude only that the appellant committed the offense while operating a motor vehicle. It does not identify the specific provision of the ordinance he violated. Consequently, we must examine the entire statutory prohibition to see if it permits convictions not permitted under Code § 18.2-266.
The Lewisburg city ordinance includes several prohibitions against conduct which would not be violations of Code § 18.2-266; therefore, we are unable to say that the conduct upon which the appellant's convictions were based was that which is not included within the prohibitions of Code § 18.2-266. Thus, for the purposes of determining whether the appellant is an habitual offender, the applicable provisions of the Lewisburg city ordinance are not in this case substantially conforming.
The trial court erred in concluding that the ordinance was substantially conforming and in finding the appellant an habitual offender. The judgment declaring the appellant an habitual offender is reversed and the information filed is dismissed.
Reversed and dismissed.
Disposition
Reversed and dismissed.
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