Opinion
Record No. 0687-91-1
February 2, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS ROBERT W. CURRAN, JUDGE
(James S. Ellenson, on brief), for appellant. Appellant submitting on brief.
(Mary Sue Terry, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Panel: Judges Bray, Elder and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Warren N. Dowless, Jr., appeals from a conviction for driving after being declared an habitual offender under Code § 46.2-357. Appellant was charged with driving under the influence and driving after having been declared an habitual offender based on an incident occurring on April 30, 1990. Appellant pleaded guilty to the DUI charge. At his trial on the habitual offender charge, he moved to strike on the ground that convicting him of violating the habitual offender statute after he had been found guilty of driving under the influence, based on the same incident, violated the double jeopardy clause. The judge denied his motion and found him guilty as charged. For the reasons discussed herein, we affirm the ruling of the trial court.
Appellant does not claim that the felony prosecution violated Code § 19.2-294, which prohibits successive prosecutions under two or more statutes based on the same act.See Slater v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (Jan. ___, 1993) (Record No. 0522-91-2) (applying statutory standard of Code § 19.2-294); Hall v. Commonwealth, ___ Va. App. ___, ___, 421 S.E.2d 455, 459-62 (1992) (en banc) (applying statutory standard of Code § 19.2-294 and federal constitutional double jeopardy standard and discussing interplay between the two).
We find this case to be controlled by our holdings in Freeman v. Commonwealth, 14 Va. App. 126, 414 S.E.2d 871 (1992), andMoore v. Commonwealth, 14 Va. App. 198, 415 S.E.2d 247 (1992). Although appellant argues that Grady v. Corbin, 495 U.S. 508 (1990), bars his prosecution on the habitual offender charge, the holding in that case applies only to successive, not concurrent, prosecutions. Freeman, 14 Va. App. at 128, 414 S.E.2d at 873. Where charges are brought simultaneously, as they were here, the amenability of one to an early conclusion while the other requires further proceedings, does not alter the fact that the proceedings are concurrent, not successive.Id. at 129, 414 S.E.2d at 873. Accordingly, the test ofGrady v. Corbin does not apply.
In the case of simultaneous prosecutions, our only task is to determine "whether each [crime charged] requires proof of a fact which the other does not." Moore, 14 Va. App. at 201, 415 S.E.2d at 249 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Although Moore involved successive prosecutions, the first portion of the test it applied was the traditional Blockburger test, which is the sole test to be applied in the case of simultaneous prosecutions. See Grady, 495 U.S. at 516-17. As stated in Moore, "[d]riving after having been declared an habitual offender requires proof of [both one's] status as an habitual offender and his operation of a motor vehicle after having been so declared." Moore, 14 Va. App. at 201, 415 S.E.2d at 249 (citing Code § 46.2-357). Driving under the influence requires proof of both operation of a motor vehicle and at least one other element, such as having a blood alcohol concentration of at least 0.10 percent or suffering from an impairment of one's ability to drive safely based on alcohol consumption. Code § 18.2-266. As was the case in Moore, "each of the charges at issue requires proof of a fact the other does not." Id. at 201, 415, S.E.2d at 249.
Because appellant has shown no more than an overlapping of elements between the crimes for which he was simultaneously prosecuted, he has failed to prove that his right to be free from double jeopardy has been violated. Accordingly, we affirm the judgment of the trial court.
Affirmed.