Opinion
44371 Record No. 811874.
October 15, 1982
Present: Carrico, C.J., Poff, Compton, Thompson, Stephenson, and Russell, JJ.
A North Carolina bond forfeiture on a charge of "Driving under the Influence — DUI" constitutes a "conviction" for the purposes of the Virginia Habitual Offender Act, Code Sec. 46.1-387.1, et seq.
(1) Motor Vehicles — Habitual Offenders — Statutory Construction — Habitual Offender Act (Code Sec. 46.1-387.1, et seq.) — Habitual Offender Defined [Code Sec. 46.1-387.2(c)] — Includes Offenses Committed Under Laws of Other States Substantially Conforming to Specified Virginia Statutes.
(2) Motor Vehicles — Habitual Offenders — Statutory Construction — Habitual Offender Act (Code Sec. 46.1-387.1, et seq.) — Habitual Offender Defined [Code Sec. 46.1-387.2(a) and (c)] — "Conviction" — Bond Forfeiture — Whether Amounts to Conviction for Purpose of Habitual Offender Act Determined by Law of State Having Subject Matter Jurisdiction.
(3) Motor Vehicles — Habitual Offenders — Statutory Construction — North Carolina Habitual Offender Act [N.C. Gen. Stat. Sec. 20-220, et seq. (Repealed in 1977)] — "Conviction" — Bond Forfeiture — Provision In N.C. Gen. Stat. Sec. 20-221(4) Equates Forfeiture of Bond With Conviction.
(4) Motor Vehicles — Habitual Offender — Statutory Construction — North Carolina Gen. Stat. Sec. 20-24(c) Habitual Offender Act (Code Sec. 46.1-387.1, et seq.) — Habitual Offender Defined [Code Sec. 46.1-377.2(c)] — Order of Court (Code Sec. 46.1-387.6) — "Conviction" — Bond Forfeiture — Bond Forfeiture Equivalent to Conviction in North Carolina and this Conviction Required to be Considered in Determining Status as Habitual Offender in Virginia.
Brumfield was ordered, pursuant to Code Sec. 46.1-387.5, to appear before the Circuit Court of Pittsylvania County to show cause why he should not be adjudged an habitual offender. According to the records furnished by the Division of Motor Vehicles, Brumfield had three convictions: (1) "DUI" in the Municipal Court of the City of Danville on June 19, 1970; (2) "DUI" in the District Court at Roxboro, Person County, North Carolina on March 9, 1978; and (3) "Driving on Revoked License" in the General District Court of Danville on February 13, 1980. At the hearing, Brumfield contested only the effect of the North Carolina record. Arguing that his failure to appear in the North Carolina court, and subsequent bond forfeiture were insufficient to constitute a "conviction" of the North Carolina offense, Brumfield maintained that the Commonwealth lacked the requisite three convictions against him and could thus not judge him an habitual offender. The Trial Court dismissed the proceeding. The Commonwealth appeals.
1. For the purposes of determining who is an habitual offender, the Virginia Habitual Offender Act, in Code Sec. 46.1-387.2(c), expressly includes offenses committed under the laws of sister states which substantially conform to specified Virginia statutes.
2. The question whether the bond forfeiture amounted to a conviction must be determined by the law of the state which had sole jurisdiction of the subject matter of the offense. Here that state was North Carolina.
3. North Carolina's Habitual Offender Act, N.C. Gen. Stat. Sec. 20-220 et seq. (1975), was repealed in 1977. However, the Act contained a specific provision in N.C. Gen. Stat. Sec. 20-221(4) equating with a conviction the forfeiture of bail or collateral deposited to secure a defendant's appearance in a North Carolina court.
4. A bond forfeiture is equivalent to a conviction in judicial proceedings under N.C. Gen. Stat. Sec. 20-24(c) and Code Sec. 46.1-387.2(c) requires that the bond forfeiture in North Carolina be counted for the purpose of determining defendant's status as an habitual offender pursuant to Code Sec. 46.1-387.6
Appeal from a judgment of the Circuit Court of Pittsylvania County. Hon. Samuel M. Hairston, judge presiding.
Reversed and remanded.
Jeffrey A. Spencer. Assistant Attorney General (Gerald L. Baliles, Attorney General; Walter A. McFarlane, Deputy Attorney General, on briefs), for appellant.
Alan L. Arey for appellee.
In this case we must determine whether a bond forfeiture, on a charge of driving under the influence of alcohol in another state, constitutes a "conviction" for the purposes of adjudicating the defendant an habitual offender, pursuant to the Virginia Habitual Offender Act, Code Sec. 46.1-387.1 et seq., Henry Ray Brumfield was ordered, pursuant to Code Sec. 46.1-387.5, to appear before the Circuit Court of Pittsylvania County to show cause why he should not be adjudged an habitual offender. After reviewing the evidence, the trial court held that one of the three offenses upon which the Commonwealth relied was not a "conviction" for the purposes of Code Sec. 46.1-387.2, because it was based upon a forfeiture of appearance bond on a charge of driving under the influence ("DUI") in North Carolina, rather than upon a finding of guilt after a trial. The Commonwealth appeals the trial court's dismissal of this civil proceeding, contending that a bond forfeiture constitutes a "conviction" for the purposes of the Habitual Offender Act. We agree, and reverse.
The facts are undisputed. The Commonwealth's Attorney filed an information against Brumfield based upon a certified abstract of convictions furnished by the Division of Motor Vehicles. The abstract showed three convictions: (1) "DUI" in the Municipal Court of the City of Danville on June 19, 1970, (2) "DUI" in the District Court at Roxboro, Person County, North Carolina on March 9, 1978, and (3) "Driving on Revoked License" in the General District Court of Danville on February 13, 1980. A show cause order was issued and served on Brumfield. At the hearing, Brumfield contested only the effect of the North Carolina record. The court examined a certified abstract of the North Carolina conviction and ascertained that Brumfield was charged with operating a motor vehicle "[w]hile under the influence of intoxicating liquor. G.S. 20-138. .18%" in Person County, North Carolina on September 3, 1977, and the summons had been marked "bond forfeiture" on March 9, 1978. The defendant conceded that he had been charged with "DUI" as shown by the North Carolina record, that he had failed to appear in response to the summons, and that he had not been represented by counsel. The sole question presented for the trial court's determination was whether the bond forfeiture amounted to a "conviction" of the North Carolina offense. Holding that it was not a "conviction," the court dismissed the Commonwealth's information because the two remaining convictions were not a sufficient basis for adjudication under the Virginia Habitual Offender Act.
For the purposes of determining who is an habitual offender, the Act, Code Sec. 46.1-387.2(c), expressly includes offenses committed under the laws of sister states which substantially conform to specified Virginia statutes. See Davis v. Commonwealth, 219 Va. 808, 252 S.E.2d 299 (1979).
[2-3] The question whether the bond forfeiture amounted to a conviction must be determined by the law of North Carolina, which had sole jurisdiction of the subject matter of the 1977 "DUI" offense. See Nelson v. Lamb, 195 Va. 1043, 8l S.E.2d 762 (1954); accord Keith v. Capers, 362 So.2d 130 (Fla. App. 1978); Cofer v. Gibson, 148 Ga. App. 572, 252 S.E.2d 6 (1978). North Carolina's Habitual Offender Act, N.C. Gen. Stat. Sec. 20-220 et seq. (1975), was repealed in 1977. It contained a specific provision, N.C. Gen. Stat. Sec. 20-221(4), which equated the forfeiture of bail or collateral, deposited to secure a defendant's appearance in a North Carolina court, with a conviction. The Court of Appeals of North Carolina held, in Rhyne v. Garrett, 18 N.C. App. 565, 197 S.E.2d 235 (1973), that the forfeiture of collateral on a "DUI" charge was equivalent to a conviction for the purpose of mandatory administrative suspension of an operator's license.
Section 20-24(c) of the General Statutes of North Carolina provides:
For the purpose of this Article the term "conviction" shall mean a final conviction. Also, for the purposes of this Article a forfeiture of bail or collateral deposited to secure a defendant's appearance in court, which forfeiture had not been vacated, shall be equivalent to a conviction . . . .
Brumfield argues that this section is restricted by its own terms to "the purposes of this Article," referring to Article 2 of the North Carolina Motor Vehicle Act, the Uniform Driver's License Act. Therefore, Brumfield contends, forfeiture of bail is equivalent to a conviction only for the purposes of the administrative suspensions of operator's licenses required by that same article.
In the case of In Re Sparks, 2 N.C. App. 65, 212 S.E.2d 220 (1975), the court applied N.C. Gen. Stat. Sec. 20-24(c) to a judicial proceeding under Article 3 of the North Carolina Motor Vehicle Act. There, Sparks had been charged with "DUI" in Indiana in 1968. He had posted bond, but had forfeited it by failing to return for trial. He was convicted of a like offense in North Carolina in 1974. The law then in effect permitted a district judge to issue a limited operator's license to a defendant convicted of "DUI" as a first offender. A district judge disregarded the Indiana bond forfeiture, treated the defendant as a first offender, and issued a limited operator's license. On appeal by the Department of Motor Vehicles, the issuance of the license was upheld by the superior court. The Court of Appeals of North Carolina reversed. It applied N.C. Gen. Stat. Sec. 20-24(c) to this judicial proceeding and held that the Indiana bond forfeiture was equivalent to a conviction for the purposes of the North Carolina "DUI" Statute, N.C. Gen. Stat. Sec. 20-179. It thus appears that N.C. Gen. Stat. Sec. 20-24(c) has broader application than Brumfield contends, and that a bond forfeiture is clearly equivalent to a conviction in judicial proceedings under North Carolina law.
Brumfield's 1978 North Carolina bond forfeiture was a conviction under the law of that state. Code Sec. 46.1-387.2(c) requires that it be counted for the purpose of determining his status under the Virginia Habitual Offender Act. For this reason, the order appealed from will be reversed, and the case will be remanded with direction to the trial court to enter an order adjudicating Brumfield an habitual offender pursuant to Code Sec. 46.1-387.6.
Reversed and remanded.