Summary
holding that the trial court correctly determined substantial conformity with respect to the West Virginia prohibition because the record clearly disclosed the specific provision Honaker violated
Summary of this case from Clementi v. CommonwealthOpinion
49890 No. 0789-93-3
Decided February 21, 1995
(1) Motor Vehicles — Habitual Offenders — Proof. — In order to adjudicate a defendant as an habitual offender based upon a conviction from another state, only that prohibition of the other state's law under which the person was convicted must substantially conform to Virginia law.
Harry F. Bosen, Jr., for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
SUMMARY
Defendant was adjudicated an habitual offender. He argued that the trial court erred in finding that an out-of-state conviction for driving under the influence of alcohol substantially conformed to Virginia law such that it could be used as a predicate offense (Circuit Court of Buchanan County, Nicholas E. Persin, Judge).
The Court of Appeals affirmed, holding that the trial court did not err.
Affirmed.
OPINION
Appellant, Ricky Lane Honaker, contends that the trial court erred in finding that his September 2, 1983 conviction under a West Virginia state law for driving while under the influence of alcohol (DUI) substantially conformed to Code Sec. 18.2-266, and therefore, could be used as a predicate offense for Honaker's adjudication as an habitual offender pursuant to Code Sec. 46.2-351, et seq. We disagree with Honaker's contention and affirm the judgment of the trial court.
The Circuit Court of Buchanan County found that Honaker is an habitual offender. This finding was based, in part, on a certified abstract from the Virginia Department of Motor Vehicles showing that Honaker had two Virginia convictions and one West Virginia conviction for driving while intoxicated. The court's finding was also based on a certified abstract of Honaker's West Virginia DUI conviction which showed that he pled guilty to "driv[ing] and operat[ing] a motor vehicle upon a public highway of [West Virginia] while under the influence of alcohol, to wit: Rt. 83/9 in the State Line Ridge area of McDowell County in violation of the West Virginia Code, Chapter 17C, Article 5, Section 2."
The sole issue in this case is whether the West Virginia DUI law under which appellant was convicted, W. Va. Code Sec. 17C-5-2, "substantially conforms" to Virginia's DUI law, Code Sec. 18.2-266. See Code Sec. 46.2-351(3). Honaker cites Commonwealth v. Ayers, 17 Va. App. 401, 437 S.E.2d 580 (1993), as authority for his contention that his conviction under the aforementioned section of the West Virginia Code cannot be used as a predicate offense for his habitual offender adjudication. However, Ayers dealt with a conclusive presumption of intoxication under the North Carolina DUI law, which is not a part of Code Sec. 18.2-266, and merely interpreted Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991). We believe Cox is more on point and controls the outcome of this appeal.
In Cox, we held that the trial court erred in finding that a Lewisburg, West Virginia city ordinance substantially conformed to provisions of Code Sec. 18.2-266 because "it permit[ed] convictions for acts which could not be the basis for convictions under Code Sec. 18.2-266." Id. at 329, 411 S.E.2d at 445. We concluded that "[i]f a conviction in another state is based on conduct which is not a violation of Code Sec. 18.2-266, then to consider it under Code Sec. 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized." Id. at 331 411 S.E.2d at 446.
(1) However, we further explained that our holding did "not mean that [the other] state's law . . . must substantially conform in every respect to Code Sec. 18.2-266." Id. Rather, in order to adjudicate a defendant an habitual offender based upon a conviction from another state, "[o]nly that prohibition of the other state's law under which the person was convicted must substantially conform [to Code Sec. 18.2-266]." Id. (emphasis added).
In Cox, we were compelled to examine the entire Lewisburg ordinance to see if it permitted convictions not permitted under Code Sec. 18.2-266 because the record of appellant's convictions in West Virginia indicated only that he was convicted under a state statute and a city ordinance. The description of appellant's convictions permitted us to conclude only that the appellant committed the offense while operating a motor vehicle. Consequently, because the Lewisburg city ordinance included several prohibitions against conduct which would not violate Code Sec. 18.2-266, we were "unable to say that the conduct upon which the appellant's convictions were based was that which [was] not included within the prohibitions of Code Sec. 18.2-266. Id.
The convictions only revealed that appellant "did unlawfully operate" an automobile "upon a public street or highway . . . and . . . commit[ted] . . . D.U.I. 1st." It was impossible to say, therefore, which one of the various types of D.U.I. prohibitions appellant violated under Code Sec. 18-85 of the Lewisburg City Code. That code provided in pertinent part:
Sec. 18-85. Persons driving under influence of alcohol, controlled substances or drugs.
(a) It is unlawful and punishable as provided in subsection (d) of this section for any person to drive any vehicle in this city while:
(1) He is under the influence of alcohol; or
(2) He is a habitual user of or under the influence of any controlled substance or he is under the influence of any other drug to a degree which renders him incapable of safely driving; or
(3) He is under the combined influence of alcohol and any controlled substance or any other drug to a degree which renders him incapable of safely driving, and . . .
(c) It is unlawful and punishable as provided in subsection (d) of this section for the owner of any vehicle to knowingly permit his vehicle to be driven in this city by any other person who is under the influence of alcohol, or who is a habitual user of or under the influence of any controlled substance or who is under the influence of any other drug to a degree of (sic) in the manner set forth in subsection (a) and (b) of this section.
This case is unlike Cox, in that here the record discloses the specific prohibition of the West Virginia law — driving and operating a motor vehicle upon a public highway in West Virginia while under the influence of alcohol — under which Honaker was convicted. By finding Honaker guilty of "driv[ing] and operat[ing] a motor vehicle . . . while under the influence of alcohol," the offense was necessarily in violation of West Virginia Code Sec. 17C-5-2(A), rather than (B), (C), (D), or (E). The trial judge, in reviewing West Virginia Code Sec. 17C-5-2, correctly limited his examination to the applicable provision of that section under which Honaker was convicted. From this examination, he could have concluded that the "conviction in [West Virginia was] based on conduct which is [also] a violation of Va. Code Sec. 18.2-266, . . . [and thus] to consider it under Code Sec. 46.2-351 would [not] . . . expand the scope of the convictions which could be considered" in making his ruling. Cox, 13 Va. App. at 331, 411 S.E.2d at 446.
West Virginia Code Sec. 17C-5-2 contains six separate subsections each of which defines a separate, distinct offense, each with a different penalty. The West Virginia law reads in pertinent part:
Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance, or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any controlled substance or any other drug, or
(E) He has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;
(2) is guilty of a misdemeanor.
Upon review of West Virginia Code Sec. 17C-5-2, we hold that the trial judge did not err in finding that the section under which Honaker was convicted substantially conformed to Code Sec. 18.2-266. Thus, not withstanding the fact that there are substantial differences between West Virginia Code Sec. 17C-5-2 and Code Sec. 18.2-266, we hold that because the prohibition of West Virginia law under which Honaker was convicted substantially conformed to Code Sec. 18.2-266, it could be used as a predicate offense for Honaker's adjudication as an habitual offender pursuant to Code Sec. 46.2-351, et seq. Affirmed.
Coleman, J., and Hodges, S.J., concurred.