Opinion
Record No. 1875-91-4
July 20, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. BRUCE BACH, JUDGE.
Jerry M. Phillips (Phillips, Beckwith Hall, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert T. Crabtree was convicted of driving on a suspended operator's license in violation of Code § 46.2-301. On appeal, he contends that the court order suspending his license was invalid because the underlying DWI conviction was based on an invalid Fairfax County ordinance. We find no merit in Crabtree's contention. Therefore, we affirm the conviction.
On September 14, 1989, Crabtree was convicted of having driven while intoxicated on February 5, 1989, in violation of Fairfax County Code § 82-4-17. The trial judge suspended Crabtree's operator's license for three years but issued him a restricted license that allowed him to drive to and from work and to and from the ASAP program. On February 22, 1991, Crabtree was charged with driving while his operator's license was suspended.
Alcohol Safety Action Project.
At trial, a certified DMV transcript of Crabtree's driving convictions was introduced, which showed the DWI conviction and showed that Crabtree's operator's license remained suspended as of February 22, 1991. Crabtree objected to the introduction of the DMV transcript on the ground that the DWI conviction and license suspension order which the transcript was offered to prove were void because they were based on Fairfax County Code § 82-4-17, an invalid ordinance. The trial judge overruled Crabtree's objection and admitted the evidence.
At trial and on appeal, Crabtree based his argument that the Fairfax County ordinance was invalid on our decisions inCommonwealth v. Holtz, 12 Va. App. 1151, 408 S.E.2d 561 (1991), and Commonwealth v. Knott, 11 Va. App. 44, 396 S.E.2d 148 (1990), in which we held that second offense DWI convictions under Fairfax County Code § 82-4-17 were invalid because Fairfax County Code § 82-4-21, the penalty provision of Fairfax County Code § 82-4-17, was invalid as to second offenses. Holtz, 12 Va. App. at 1152, 408 S.E.2d at 562-63; Knott, 11 Va. App. at 47, 396 S.E.2d at 150. Crabtree contends that the trial court should have taken notice of our holdings in Holtz and Knott and of the fact that we had declared Fairfax County Code § 82-4-21 invalid. It is on this basis that Crabtree contends that his conviction for DWI under Fairfax County Code § 82-4-17 must also be held invalid, even though it was not for a second offense.
Fairfax County Code § 82-4-21 was held to be invalid because it failed to include violations under Code § 18.2-266 (driving while intoxicated) as "prior offenses" that could increase the penalties for a second Code § 82-4-17 violation.Holtz, 12 Va. App. at 1152, 408 S.E.2d at 562; Knott, 11 Va. App. at 47, 396 S.E.2d at 150. Accordingly, Fairfax County Code § 82-4-21 contravened Virginia Code § 15.1-132, which requires local ordinances that prohibit driving while under the influence to provide punishment equal to or greater than the punishment provided by state law. Id.
Crabtree's argument ignores the fact that the holdings ofKnott and Holtz apply to the Fairfax County Code § 82-4-17 as it read on or before October 17, 1988. See Knott, 11 Va. App. at 46 n. 1, 396 S.E.2d at 149 n. 1. The defect in the ordinance that rendered Holtz's and Knott's convictions invalid under Fairfax County Code § 82-4-17 was remedied by an amendment to Fairfax County Code § 82-4-21 on October 17, 1988. Id. The offenses in the Knott and Holtz cases occurred before the effective date of the amendment to Fairfax County Code § 82-4-21. By contrast, Crabtree committed his DWI offense on February 5, 1989, after the effective date of the amendment to Fairfax County Code § 82-4-21 on October 17, 1988. Therefore, on the evidence before the trial judge and before this Court, we find that Crabtree's conviction was valid because it was based on an ordinance amended to correct the existing defect. Because Crabtree has produced no other evidence that Fairfax County Code §§ 82-4-17 or 82-4-21 were invalid, as amended, at the time he committed the DWI offense, he has shown no basis for the trial court to have held that his DWI conviction and license suspension order were invalid. Accordingly, the trial court did not err by admitting the DMV abstract.
Crabtree asserted for the first time at oral argument that the amended ordinance was not in effect on February 5, 1989, the date that he committed the DWI offense. We will not consider an issue raised for the first time on appeal. Rule 5A:18.
For these reasons, we affirm Crabtree's conviction of driving on a suspended operator's license.
Affirmed.