Opinion
47824 No. 0997-91-4
Decided March 24, 1992
(1) Motor Vehicles — Habitual Offender — Standard. — Although an habitual offender proceeding is civil in nature, its effect is to impose a forfeiture; therefore, the operative statute must be strictly construed against the Commonwealth.
(2) Motor Vehicles — Habitual Offender — Standard. — It is unreasonable to assume that the legislature intended courts to exclude the offense described in Code Sec. 18.2-266(i) when applying Code Sec. 46.2-351(1)(b).
(3) Motor Vehicles — Habitual Offender — Standard. — A conviction under Code Sec. 18.2-266(i) is a predicate conviction to a finding of habitual offender status.
(4) Criminal Procedure — Notice of Charges — Standard. — The incorrect citation of a code section in a warrant does not control determination of what offense was charged when the defendant plainly had notice of the true nature of the charges.
Daniel J. Travostino, for appellant.
Robert Q. Harris, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
SUMMARY
Defendant appealed the decision of the circuit court adjudicating her as an habitual offender. She claimed that her earlier conviction under Code Sec. 18.2-266(i) was not a predicate offense for an habitual offender adjudication (Circuit Court of Clarke County, James L. Berry, Judge).
The Court of Appeals affirmed, holding that Code Sec. 18.2-266(i) is a predicate conviction to a finding of habitual offender status.
Affirmed.
OPINION
Dana Lynn Flaherty, appellant, appeals from a final order of the Circuit Court of Clarke County adjudicating her an habitual offender, revoking her privilege to operate a motor vehicle for ten years, and ordering her to surrender her operator's license. On appeal, she asserts: (1) that a 1985 conviction for driving with a blood alcohol concentration of 0.15 percent or more by weight by volume, in violation of Code Sec. 18.2-266(i), should not be considered a qualifying conviction for habitual offender status under Code Sec. 46.2-351; and (2) that a 1983 conviction was for violating Code Sec. 18.2-388 and should not be considered a qualifying conviction for habitual offender status under Code Sec. 46.2-351. The judgment of the trial court is affirmed.
Appellant's 1983 conviction was pursuant to a warrant charging her with a violation of Code Sec. 18.2-388 (the "drunk in public statute") and not Code Sec. 18.2-266 (the "driving under the influence" statute). Although the warrant cited Code Sec. 18.2-388, the description of the offense was "operate a motor vehicle while under the influence of alcohol." The trial court marked this warrant "guilty as charged." The 1985 conviction was pursuant to a warrant charging appellant with driving while her blood alcohol concentration was by weight by volume 0.15% or more, a violation of Code Sec. 18.2-266(i), which was in effect at the time of the offense in December 1984.
At trial, appellant argued that Code Sec. 46.2-351, being penal in nature and effect, should be strictly construed. Consequently, she asserted, neither the 1983 nor the 1985 conviction fell within its requirements. The court ruled that the habitual offender statute was remedial in nature and thus should be construed broadly. The court found that both the 1983 and 1985 convictions counted toward appellant's habitual offender status.
Code Sec. 46.2-351 details the requirements for finding a person an habitual offender. A court must determine that a person has accrued on his driving record:
Three or more convictions . . . singularly or in combination, of the following separate offenses arising out of separate acts:
* * *
b. Driving or operating a motor vehicle while under the influence of intoxicants or drugs in violation of Sec. 18.2-266 or subsection A of Sec. 46.2-341.24.
Appellant's position with regard to her 1985 conviction is that Code Sec. 46.2-351 does not include violations of Code Sec. 18.2-266(i) as predicate convictions for a finding of habitual offender status. Her argument is based on the contention that Code Sec. 18.2-266(i) is distinguishable from she balance of Code Sec. 18.2-266 both because the elements that go to prove a violation of it set it apart and because the critical phrase "under the influence" is missing from its terms.
This Court discussed the nature of inquiries under Code Sec. 18.2-266(i) in Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).
[T]he inquiry under Code Sec. 18.2-266(i) is not whether a driver was in fact "under the influence of alcohol" to a degree that his ability to drive safely was affected; rather, the issue is whether at the time he was driving his blood alcohol concentration was at least .10 percent as measured by a subsequently administered chemical test. It is for this reason that subsection (i) and similar statutes in our sister states have come to be known as "per se" statutes.
Id. at 298, 381 S.E.2d at 15 (emphasis in original). Appellant suggests that, because a defendant could possibly prove that he or she was not driving under so great an influence of alcohol that his or her driving ability was affected and yet still be convicted under Code Sec. 18.2-266(i), a conviction under Code Sec. 18.2-266(i) cannot be considered a predicate conviction for purposes of the habitual offender statute.
(1) Appellant correctly cites to Hoye v. Commonwealth, 12 Va. App. 587, 405 S.E.2d 628 (1991), for the proposition that, although an habitual offender adjudication brought pursuant to Code Sec. 46.2-351 "is a civil proceeding, its effect is to impose a forfeiture. Therefore, the operative statute must be strictly construed against the Commonwealth." Id. at 589, 405 S.E.2d at 629. Construing the statute strictly against the Commonwealth, appellant argues, this Court must reject a conviction for violating Code Sec. 18.2-266(i) as a predicate conviction for a finding of habitual offender status, because Code Sec. 46.2-351 requires a violation for driving "under the influence." Code Sec. 18.2-266(i) does not proscribe driving "under the influence"; rather, it proscribes driving with "a blood alcohol concentration of 0.10 percent or more." Code Sections 18.2-266(ii)-(iv), on the other hand, all proscribe driving "under the influence."
We believe that appellant's argument ignores the plain language of Code Sec. 46.2-351, the provision defining an "habitual offender." Code Sec. 46.2-351(1) lists the types of convictions which, when numbering three or more, justify a finding of habitual offender status. Code Sec. 46.2-351(1)(b) describes one such conviction as being for "[d]riving or operating a motor vehicle while under the influence of intoxicants or drugs in violation of Sec. 18.2-266 or subsection A of Sec. 46.2-341.24." Code Sec. 46.2-351(1)(b) does not describe such a conviction as being for driving or operating a motor vehicle while under the influence of intoxicants or drugs in violation of Code Sec. 18.2-266 except for subsection (i).
(2) We do not believe the legislature intended the result urged by appellant. It is unreasonable to assume the General Assembly intended courts to exclude the offense described in Code Sec. 18.2-266(i) when applying Code Sec. 46.2-351(1)(b). While this Court has a duty to interpret Code Sec. 46.2-351 strictly against the Commonwealth, that duty does not require this Court to ignore the legislative intent that inspired Code Sec. 46.2-351(1)(b).
Our reading of Code Sec. 46.2-351 is based on more than a fair-minded reading of the statute and the obvious legislative intent that inspired it. In October 1985, approximately one year after the General Assembly amended Code Sec. 18.2-266 to include subsection (i), the Attorney General concluded that the predecessor to Code Sec. 46.2-351 "should be read to include a conviction of any offense in violation of Sec. 18.2-266," and that "a conviction for a violation of Sec. 18.2-266(i) may be used as one of the three convictions required to bring an individual within the definition of an habitual offender." 1985-86 Op. Att'y Gen. 204-205 (1985), 85-86 Va. AG 204. Subsequent to this 1985 opinion, the General Assembly amended the Habitual offender Act in 1989, Acts 1989 cc. 705, 727, without altering the Attorney General's construction.
The legislature is presumed to have had knowledge of the Attorney General's interpretation of the statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view.
Deal Assoc., Inc. v. Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983) (citation omitted).
(3) We hold, therefore, that a conviction under Code Sec. 18.2-266(i) is a predicate conviction to a finding of habitual offender status under Code Sec. 46.2-351.
With respect to her 1983 conviction for violating Code Sec. 18.2-388, appellant correctly asserts that a conviction for Code Sec. 18.2-388 lies outside the purview of Code Sec. 46.2-351. However, appellant is incorrect in arguing that her 1983 conviction, allegedly for violating Code Sec. 18.2-388, may not stand as a predicate conviction to the trial court's determination that she is an habitual offender.
(4) The warrant with which appellant was charged in 1983 incorrectly cited the code section at issue as Code Sec. 18.2-388, which goes to public drunkenness. However, the incorrect citation of a code section in a warrant does not control determination of what offense was charged when the defendant plainly had notice of the true nature of the charge against him or her. Williams v. Commonwealth, 5 Va. App. 514, 516-17, 365 S.E.2d 340, 341 (1988). Here, not only was the description of the actual offense in the warrant correct ("Operate a motor vehicle while under the influence of alcohol"), but the summons involved in the 1983 conviction accurately identified the statute at issue as Code Sec. 18.2-266. Appellant had sufficient notice of the actual crime with which she was charged notwithstanding the misrecital of the statute in the warrant.
The court's disposition of the 1983 case merely adds further proof that appellant was not convicted of public drunkenness, a class four misdemeanor punishable by no more than a $100 fine. Appellant was fined $200 and her license was suspended pending completion of ASAP, punishments that clearly follow a driving while intoxicated conviction.
The record leaves no room for doubt that appellant was convicted of driving while intoxicated in 1983. The trial court's ruling that the 1983 conviction was for a violation of Code Sec. 18.2-266 is supported by the record, and we will not disturb it on appeal.
In light of the foregoing analysis, the judgment of the trial court is affirmed.
Affirmed.
Bray, J., and Moon, J., concurred.