Summary
holding under Code § 19.2-264.1, which provides that accused may not be convicted for driving while intoxicated and reckless driving "growing out of the same act or acts," that the difference in venue does not "alter the singular nature of the act or acts out of which the charges arose"
Summary of this case from Clay v. CommonwealthOpinion
43919 Record No. 790468.
February 29, 1980
Present: I'Anson. C.J., Carrico, Harrison. Cochran, Poff, and Compton, JJ.
"The same act or acts" in Code Sec. 19.2-294.1 means the same act or acts of driving and contemplates continuous and uninterrupted course of operation of motor vehicle; driving while intoxicated conviction in Bedford County must be dismissed because defendant was previously convicted in Lynchburg of reckless driving stemming from the same high speed chase.
Statutory Construction — "The Same Act or Acts" in Code Sec. 19.2 — 294.1 Means Same Act or Acts of Driving and Contemplates Continuous, Uninterrupted Course of Operation of Motor Vehicle.
The defendant failed to obey a lane direction control signal in Lynchburg and refused to stop for a police officer. A high speed chase ensued from Lynchburg into adjoining Bedford County. Defendant was charged with reckless driving in Lynchburg and with reckless driving and driving while intoxicated in Bedford County. On September 19, 1978, he was convicted of reckless driving in Lynchburg. On October 1, 1978, he was convicted of driving while intoxicated in Bedford County. On appeal, the Circuit Court of Bedford County also convicted the defendant. Defendant contends an appeal, as he did in both courts below, that his conviction for reckless driving barred prosecution of the driving while intoxicated charge under Code Sec. 19.2-294.1 because both charges stemmed from the same act.
The bar of Code Sec. 19.2-294.1 encompasses offenses which, though separate and distinct, grow out of "the same act or acts". As a penal and remedial statute, Code Sec. 19.2-294.1 must be construed strictly against the Commonwealth. Thus "the same act or acts" is construed 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 a boundary line between two localities. The earlier Lynchburg conviction of reckless driving growing out of the same act or acts as the Bedford "driving while intoxicated" charge requires dismissal of the latter.
Appeal from a judgment of the Circuit Court of Bedford County. Hon. William W. Sweeney, judge presiding.
Reversed and dismissed.
Gregory W. Smith (Smith Mays, on brief), for appellant.
Alan Katz, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
Code 19.2-294.1 is the focal point of the controversy in this case. This section provides:
"Whenever any person is charged with a violation of Sec. 18.2-266 [the statute prohibiting driving while intoxicated] 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."
The question of the statute's applicability arose in this situation:
On August 8, 1978, while operating his automobile in the City of Lynchburg, the defendant, Demaris Haynes Padgett, failed to obey a "lane direction control signal." A Lynchburg police officer observed the infraction, and he attempted unsuccessfully to stop the defendant. A high-speed chase ensued. The chase led from a point more than one mile inside Lynchburg to a location more than one mile into adjoining Bedford County. During the chase, the Lynchburg officer was joined by a fellow city policeman and a state trooper.
As a result of the incident, the defendant was charged, among other offenses, with reckless driving in Lynchburg and with reckless driving and driving while intoxicated in Bedford County. On September 19, 1978, the defendant was tried in Lynchburg and convicted of the offense of reckless driving which had been lodged against him there.
On October 12, 1978, the defendant appeared in Bedford County General District Court on the reckless driving and driving while intoxicated charges pending against him in that jurisdiction. Citing Code Sec. 19.2-294.1, he moved to dismiss the driving while intoxicated charge on the ground that it grew out of the same act or acts as the reckless driving charge for which he had been convicted earlier in Lynchburg. The motion was denied, and the defendant was convicted of driving while intoxicated. The Bedford reckless driving charge was dismissed.
The defendant appealed his driving while intoxicated conviction to the Circuit Court of Bedford County. Again relying upon Code Sec. 19.2-294.1 and his contention that the earlier Lynchburg reckless driving conviction batted prosecution of the driving while intoxicated charge, he moved to dismiss the latter charge. The motion was denied, and the court, sitting without a jury, convicted the defendant of driving while intoxicated.
On his appeal here, the defendant argues that the Lynchburg charge of reckless driving and the Bedford charge of driving while intoxicated both grew out of the same act, viz., "the high speed chase." Under Code Sec. 19.2-294.1, therefore, he asserts, the earlier Lynchburg reckless driving conviction required dismissal of the Bedford charge of driving while intoxicated. His crossing of the boundary between Lynchburg and Bedford County is irrelevant to the application of Sec. 19.2-294.1, he opines, because the crossing was not an act out of which grew either of the two charges in question but was determinative only of the venue for trial of the charges. And, the defendant concludes, because venue may have been laid in different localities, it does not follow that the charges grew out of different acts.
In his argument, citing Jones v. Commonwealth, 208 Va. 370, 375, 157 S.E.2d 907, 910 (1967), the Attorney General says that "two or more distinct and separate offenses may grow out of a single incident or occurrence, warranting the prosecution and punishment of an offender for each." Further, citing Blockburger v. United States, 284 U.S. 299, 304 (1932), the Attorney General states that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." The Attorney General then argues that, because the Lynchburg reckless driving charge required proof of venue different from the venue required to sustain the Bedford driving while intoxicated charge, the two charges did not grow out of the same act and, consequently, the Lynchburg conviction did not bar the Bedford prosecution.
The question here, however, is not whether two distinct and separate offenses were involved so that the prosecution for both could have proceeded without violating double jeopardy principles. If that were the question, the Blockburger test, which was enunciated in a double jeopardy setting, would permit both convictions to stand in this case because the Lynchburg reckless driving charge could have been established without proof that the defendant was intoxicated and the Bedford driving while intoxicated charge could have been sustained without proof that the defendant drove recklessly.
But the bar of Code Sec. 19.2-294.1 encompasses offenses which, although separate and distinct, grow out of "the same act or acts." Thus, the real question in the case is the meaning of this statutory phrase.
Because Sec. 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 localities.
From the moment he was first observed by the police in Lynchburg until he was finally apprehended in Bedford County, the defendant engaged in a continuous, uninterrupted course of driving. The charges against him, therefore, grew out of the same act or acts within the meaning of Code Sec. 19.2-294.1. Hence, the earlier Lynchburg conviction of reckless driving required the dismissal of the Bedford driving while intoxicated charge. Accordingly, the judgment convicting the defendant of the Bedford charge will be reversed and the charge will be dismissed.
Reversed and dismissed