Opinion
44247 Record No. 801695.
January 22, 1982
Present: Carrico, C.J., Cochran, Poff, Compton, Thompson, and Stephenson, JJ., and Harrison, Retired Justice.
Trial Judge's statement that he maturely and seriously considered defendant's motion for assignment to an alcohol program after defendant's conviction of drunk driving under Code Sec. 18.2-266 is taken at face value and indicates good faith consideration of motion and discretion in its disposition, thus satisfying Code Sec. 18.2-271.1(a) as amended by Acts 1980, c. 589.
(1) Criminal Procedure — Statutory Construction — Education and Rehabilitation, Etc. of Person Charged With Violation of Code Sec. 18.2-266 (Drunk Driving Statute) [Code Sec. 18.2-271.1(a)] — Amendment, Acts 1980, c. 589 — Imposes Upon Court in Drunk Driving Case Duty to Give Good Faith Consideration to Motion to Assign Accused to Alcohol Program Authorized by Code Sec. 18.2-271.1.
(2) Criminal Procedure — Education and Rehabilitation, Etc., of Person Charged With Violation of Code Sec. 18.2-266 (Drunk Driving Statute) [Code Sec. 18.2-271.1(a)] — Trial Judge's Statement That He Maturely and Seriously Considered Defendant's Motion for Assignment to Alcohol Program is Taken at Face Value, Demonstrating Good Faith Consideration of Motion and Discretion in Its Disposition.
The defendant was convicted of drunk driving under Code Sec. 18.2-266 and, although he moved to be assigned to an alcohol program under Code Sec. 18.2-271.1 the Court denied the motion, fined him and suspended his operator's license for six months. A 1980 amendment to Code Sec. 18.2.271.1(a) required the Court to give "mature" consideration to the needs of the person in determining whether he should be allowed to enter an alcohol program. The defendant maintains on appeal that the Trial Court did not give good faith consideration to his request for assignment, noting that the records of the Court indicated that no one had been assigned to such a program and that the Court had indicated at a docket call that no one convicted of drunk driving would be assigned to an alcohol program. However, the Trial Judge stated that he had maturely and seriously considered the needs of the defendant and the motion in disposing of it and had pointed out the special facts of the case which indicated to him that a dangerous situation existed.
1. The amendment to Code Sec. 18.2-271.1(a) by Acts 1980, c. 589 imposes upon a Court in a drunk driving case the duty to give good faith consideration to a motion to assign the accused to an alcohol program authorized by Code Sec. 18.2-271.1.
2. The Trial Judge's statement that he maturely and seriously considered the defendant's motion for assignment to an alcohol program is taken at face value, demonstrating that the Judge gave good faith consideration to the motion and exercised his discretion in its disposition.
Appeal from a judgment of the Circuit Court of Henry County. Hon. John D. Hooker, judge presiding.
Affirmed.
A. L. Philpott; James W. Haskins (Philpott McGhee; Young, Kiser, Haskins, Mann, Gregory Young, on brief), for appellant.
Jeffrey A. Spencer, Assistant Attorney General (Marshall Coleman, Attorney General; Walter A. McFarlane, Deputy Attorney General, on brief), for appellee.
Upon a plea of guilty, the trial court convicted the defendant, Mike Odell Midkiff, of driving under the influence of intoxicants, Code Sec. 18.2-266. Following his conviction, the defendant moved the court to assign him to one of the alcohol programs authorized by Code Sec. 18.2-271.1. The court denied the motion, sentenced the defendant to pay a fine of $200, and suspended his operator's license for six months.
Code Sec. 18.2-271.1 provides that a general district court or a circuit court may assign to an alcohol safety action program (ASAP) or a driver alcohol rehabilitation program any person charged with driving under the influence. Upon the person's successful completion of the program, the court may dismiss the charge or reduce it to a lesser offense.
At the heart of the issue on appeal is an amendment to Code Sec. 18.2-271.1(a), effective July 1, 1980. In pertinent part, the amendment reads:
If such person has never entered into or been committed to a driver alcohol safety action program or driver alcohol rehabilitation program . . . upon motion of the accused or his counsel, the court shall give mature consideration to the needs of such person in determining whether he be allowed to enter such program . . . . [Emphasis added.]
The defendant contends that the General Assembly intended by the use of the italicized language above to impose upon every court the duty to give "good faith, mature consideration to the motion of a defendant that he be placed in an appropriate program authorized by the statute." It was stipulated below, the defendant points out, that "there was an active alcohol safety action program and an alcohol rehabilitation program operating in Henry County." Yet, the defendant asserts, the records of the trial court show that "no person convicted [in that court] of driving under the influence has ever been placed or assigned to [such] a program." Indeed, the defendant notes, the trial judge announced at a docket call in July, 1980, that "no one convicted of driving under the influence would be assigned to an alcohol rehabilitation program."
The defendant maintains that these facts indicate the trial court did not give "good faith consideration" to his request for assignment to an alcohol program. Thus, the defendant concludes, the trial court's refusal of his motion "does not really involve an abuse of discretion," but a "failure to exercise any discretion" at all.
We agree with the defendant that the 1980 amendment imposes upon a court in a drunk-driving case the duty to give "good faith consideration" to a motion to assign the accused to an alcohol program authorized by Code Sec. 18.2-271.1. We do not agree, however, that the trial court failed to exercise the discretion vested by the Code section, or that the court abused its discretion, when it denied the defendant's motion.
The defendant makes the additional argument that the trial court's interpretation of Code Sec. 18.2-271.1 has the effect of denying him equal protection of the laws. He concedes, however, that the statute is "constitutionally sound" if we construe it to require "good faith mature consideration" of a motion for assignment to an alcohol program. Because we construe the statute to require good faith consideration of such a motion, the constitutional question becomes moot.
In the discussion concerning the motion, the question arose whether the 1980 amendment applied to the defendant's case, since he was charged before the effective date of the amendment. In disposing of the motion, however, the trial judge said that he would assume that "the amendment does apply." The judge then stated:
I listened to the evidence in this case very carefully and it strikes me as a very severe case of driving under the influence. The defendant was very much under the influence of intoxicants (0.16) and was operating his motor vehicle at 10:30 at night at a speed in excess of ninety miles an hour. To me this was an exceedingly dangerous situation . . . . Let me say for the record that I have maturely and seriously considered the needs of the defendant and [defense counsel's] request that the defendant be placed in an ASAP program, and the same will be denied for reasons set out above.
We accept at face value the trial judge's statement that he "maturely and seriously considered" the defendant's motion for assignment to an alcohol program. For purposes of appeal, this statement demonstrates both that the judge gave "good faith consideration" to the motion and that he exercised his discretion in its disposition. Accordingly, we will affirm the judgment of the trial court.
Affirmed.