Summary
holding the trial court erred in considering defendant's out-of-state conviction a prior offense because it was not based on a statute that was "substantially similar" to Virginia's drunk-driving statute
Summary of this case from Corey v. CommonwealthOpinion
44707 Record No. 840122.
October 12, 1984.
Present: All the Justices.
A conviction for drunk driving under N.C. Gen. Stat. Sec. 20-138(b) is not under a statute substantially similar to Virginia Code Sec. 18.2-269(3) and thus cannot be considered a prior conviction for the increased penalty of Virginia Code Sec. 18.2-270.
(1) Criminal Procedure — Motor Vehicles — Drunk Driving — Prior Convictions — Burden of Proof — Statutory Construction — Penalty for Driving While Intoxicated, Etc.; Prior Conviction (Code Sec. 18.2-270) — Commonwealth Has Burden to Prove that Conviction Under Laws of Another State Is Substantially Similar to Virginia Code Sections 18.2-266 through 18.2-269.
(2) Criminal Procedure — Motor Vehicles — Drunk Driving — Prior Convictions — Burden of Proof — Statutory Construction — Penalty for Driving While Intoxicated, Etc.; Prior Conviction (Code Sec. 18.2-270); Impaired Driving; Offense [N.C. Gen. Stat. Sec. 20-138(b)] [Now Substantially N.C. Gen. Stat. Sec. 20-138.1(a)(2)]; Presumptions From Alcoholic Content of Blood [Code Sec. 18.2-269(3)] — North Carolina Statute Creates Conclusive Presumption Based on Alcohol While Virginia Statute Creates Rebuttable Presumption.
(3) Criminal Procedure — Motor Vehicles — Drunk Driving — Prior Convictions — Burden of Proof — Statutory Construction — Penalty for Driving While Intoxicated, Etc.; Prior Conviction (Code Sec. 18.2-270); Impaired Driving; Offense [N.C. Gen. Stat. Sec. 20-138(h)] [Now Substantially N.C. Gen. Stat. Sec. 20-138.1(a)(2)]; Presumptions From Alcoholic Content of Blood [Code Sec. 18.2-269(3)] — North Carolina Statute Not Substantially Similar to Virginia Statute and Conviction Under North Carolina Statute Cannot he Considered Prior Conviction Under Virginia Code Sec. 18.2-270.
Defendant was convicted in a bench trial for drunk driving and was punished as a third offender under Code Sec. 18.2-270. One of the two prior convictions considered was under N.C. Gen. Stat. Sec. 20-138(b) [now substantially N.C. Gen. Stat. Sec. 20-138.1(a)(2)]. The question on appeal is whether N.C. Gen. Stat. Sec. 20-138(b) is substantially similar to Virginia Code Sec. 18.2-269(3) so that the conviction will stand as a prior conviction for the purpose of Virginia Code Sec. 18.2-270.
1. The Commonwealth bears the burden of proving under the prior offender provisions of Code Sec. 18.2-270 that a conviction under the laws of another state is substantially similar to the provisions of Code Sections 18.2-266 through 18.2-269.
2. There is a difference between N.C. Gen. Stat. Sec. 20-138(b) [now substantially N.C. Gen. Stat. Sec. 20-138.1(a)(2)] under which defendant was convicted and comparable Virginia Code Sec. 18.2-269(3), the North Carolina provision creating a conclusive presumption of intoxication when a person's blood alcohol concentration is 0.10 percent or more, while the Virginia statute provides for only a rebuttable presumption of intoxication upon a finding of this concentration.
3. The differing effect of the presumptions in N.C. Gen. Stat. Sec. 20-138(b) [now substantially N.C. Gen. Stat. Sec. 20-138.1(a)(2)] and Virginia Code Sec. 18.2-269(3) is substantial and the North Carolina conviction should not have been considered a prior offense under Code Sec. 18.2-270.
Appeal from a judgment of the Circuit Court of the City of Chesapeake. Hon. James C. Godwin, judge presiding.
Vacated and remanded.
Raymond H. Strople (Moody, Strople, Brahm and Lawrence, Ltd., on brief), for appellant.
Wayne T. Halbleib, Assistant Attorney General (Gerald L. Baliles, Attorney General; Walter A. McFarlane, Deputy Attorney General, on brief), for appellee.
In a bench trial, Bruce Anthony Shinault was convicted of driving a motor vehicle while under the influence of alcohol, and was punished as a third offender pursuant to Code Sec. 18.2-270. In imposing the sentence, the trial court considered, as a prior offense, Shinault's conviction for driving while intoxicated under the laws of North Carolina.
Sec. 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction. — Any person violating any provision of Sec. 18.2-266 shall he guilty of a Class 1 misdemeanor.
Any person convicted of a second offense committed within less than five years after a first offense under Sec. 18.2-266 shall be punishable by a fine of not less than $200 nor more than $1,000 and by confinement in jail for not less than one month nor more than one year. Forty-eight hours of such confinement shall be a mandatory, minimum sentence not subject to suspension by the court. Any person convicted of a second offense committed within a period of five to ten years of a first offense under Sec. 18.2-266 shall he punishable by a fine of not less than $200 nor more than $1,000 and by confinement in jail for not less than one month nor more than one year. Any person convicted of a third offense or subsequent offense committed within ten years of an offense under Sec. 18.2-266 shall be punishable by a fine of not less than $500 nor more than $1,000 and by confinement in jail for not less than two months nor more than one year. Thirty days of such confinement shall be a mandatory, minimum sentence not subject to suspension by the court if the third or subsequent offense occurs within less than five years. Ten days of such confinement shall be a mandatory, minimum sentence not subject to suspension by the court if the third or subsequent offense occurs within a period of five to ten years of a first offense.
For the purpose of this section a conviction or finding of not innocent in the case of a juvenile under the provisions of Sec. 18.2-266, former Sec. 18.1-54 (formerly Sec. 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state substantially similar to the provisions of Sections 18.2-266 through 18.2-269 of this Code, shall be considered a prior conviction. (Code 1950, Sec. 18.1-58; 1960, c. 358; 1962, c. 302; 1975, cc. 14, 15; 1982, c. 301; 1983, c. 504.)
Code Sec. 18.2-270 provides that a conviction under "the laws of any other state substantially similar to the provisions of [Code] Sec. Sec. 18.2-266 through 18.2-269" (Virginia's driving under the influence statutes) shall be considered a prior conviction. In this appeal, the sole question presented is whether the North Carolina statute is "substantially similar" to the Virginia statute.
[1-2] The Commonwealth bears the burden of proving that an out-of-state conviction was obtained under laws substantially similar to those of the Commonwealth. Rufty v. Commonwealth, 221 Va. 836, 837-38, 275 S.E.2d 584, 585 (1981). Although the two state statutes are similar in many respects, one difference is readily apparent. The North Carolina statute creates a conclusive presumption of intoxication when a person's blood alcohol concentration is 0.10 percent or more. N.C. Gen. Stat. 20-138(b) (now repealed and reenacted in substance as Sec. 20-138.1(a) (2)). The Virginia statute, on the other hand, provides that a blood alcohol concentration of 0.10 percent or more merely gives rise to a rebuttable presumption that a person is under the influence of alcohol. Code Sec. 18.2-269(3).
The Attorney General argues that when the statutes of the two states are considered in their entirety, each has a general likeness to the other, and, therefore, the North Carolina statute passes the "substantially similar" test. We conclude, however, that the differing effect of the two presumptions on one accused of driving while intoxicated is substantial. In Virginia, an accused may present evidence to rebut the presumption, and if such evidence creates a reasonable doubt as to his guilt, the fact finder must acquit. In North Carolina, however, mere proof that an accused's blood alcohol is 0.10 percent is conclusive as to guilt. With such a fundamental difference, we cannot say that the North Carolina statute is "substantially similar" within the meaning of Code Sec. 18.2-270.
We hold, therefore, that the trial court erred when it considered the North Carolina conviction as a prior offense. Accordingly, we will vacate the sentence imposed by the trial court and remand the case for the imposition of a sentence consistent with the views expressed herein.
Vacated and remanded.