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Brown v. Com.7/27/2004
Michael John Brown appeals his convictions, after a bench trial, for driving under the influence (in violation of Code § 18.2-266) and reckless driving (in violation of Code § 46.2-862). [FN1] Brown argues the trial court erred "in not finding that the driving under the influence and reckless driving offenses grew out of the same act or acts of driving." Consequently, Brown argues "one of the charges should have been dismissed" pursuant to Code § 19.2-294.1. For the reasons that follow, we reverse Brown's convictions and remand, with direction to the trial court to dismiss one of the charges.
FN1. Brown was also charged with driving after having been declared an habitual offender (in violation of Code § 46.2-357(B)(2)), attempting to impede a law enforcement officer (in violation of Code § 18.2-460),
unreasonably refusing to submit to a breath sample (in violation of Code § 18.2-268.2), and obtaining money by false pretenses (in violation of Code § 18.2-178). Because the resolution of these charges is not at issue on this appeal, we do not address them further.
As is well settled, we review the evidence here, and all reasonable inferences, in the light most favorable to the Commonwealth as the party prevailing below. Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997). That principle requires us to discard the evidence of the defendant in conflict with the Commonwealth's evidence and regard as true all evidence favorable to the Commonwealth. See Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998).
Code § 19.2-294.1 mandates that "[w]henever any person is charged with a violation of § 18.2-51.4 or § 18.2-266 or any similar ordinances of any county, city, or town and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge." Code § 19.2-294.1.
Our interpretation of this statute, as it applies to the facts of this case, is guided by the Supreme Court of Virginia's decision in Padgett v. Commonwealth, 220 Va. 758, 263 S.E.2d 388 (1980). In that case, Padgett "failed to obey a lane direction control signal in Lynchburg and refused to stop for a police officer." Id. at 759, 263 S.E.2d at 388. After a high-speed chase that began in Lynchburg and ended in Bedford County, Padgett "was charged with reckless driving in Lynchburg and with reckless driving and driving while intoxicated in Bedford County." Id. A Lynchburg court convicted Padgett on the reckless driving charge, and subsequently, a Bedford County court convicted Padgett of driving while intoxicated in Bedford County. Id. at 759, 263 S.E.2d at 388-89. Padgett appealed, arguing that, pursuant to Code § 19.2- 294.1, "his conviction for reckless driving barred prosecution of the driving while intoxicated" "because both charges stemmed from the same act." Id. at 759, 263 S.E.2d at 389.
In reversing Padgett's conviction for driving while intoxicated, the Supreme Court of Virginia held that "[t]he bar of Code § 19.2-294.1 encompasses offenses which, though separate and distinct, grow out of 'the same act or acts.' " Id. at 760, 263 S.E.2d at 389.
Because § 19.2-294.1 relates to matters of a penal nature and is remedial in character, it must be construed strictly against the Commonwealth and favorably to the accused. So construing it, we do not believe that the difference in venue involved in this case alters the singular nature of the act or acts out of which the charges against the defendant arose. We interpret the language, "the same act or acts," to mean "the same act or acts" of driving and to contemplate a continuous, uninterrupted course of operation of a motor vehicle, without regard to the crossing of the boundary line between two localitie
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