Summary
In Mitchell, we examined the validity of a similar local ordinance prohibiting driving under the influence of alcohol or drugs.
Summary of this case from Commonwealth v. KnottOpinion
44912 No. 0077-85
Argued September 12, 1985
Decided February 18, 1986
(1) Criminal Law — Local Ordinances — Validity. — While the Code permits local governments to adopt legislation prohibiting driving under the influence of alcohol or drugs, the failure of the local government to adopt legislation conforming to the requirements of the Code invalidates an attempt to prosecute under the local ordinance.
(2) Motor Vehicles — Driving Under the Influence — Nature of the Offense. — Driving under the influence of alcohol was not an offense at common law; it exists solely as a creature of statute.
(3) Criminal Law — Sufficiency of the Charge — Valid Offense. — The words set out in a warrant have no effect unless they describe a crime under valid state or local law; the existence of a state statute defining the crime does not form a basis for conviction where a defendant has not been so charged.
Ivy P. Blue, for appellant.
Wade Kizer (Eddie R. Vaughn, Jr., Commonwealth's Attorney, on brief), for appellee.
SUMMARY
Defendant appealed her conviction for driving under the influence of alcohol in violation of the County Code, contending that the County Code provision relied on was invalid at the time of her arrest (Circuit Court of Hanover County, Richard H. C. Taylor, Judge).
The Court of Appeals reversed, holding that the County ordinance, adopted at a time when Title 18.1 of the Code was in effect, was invalid following the repeal of Title 18.1 and the adoption of Title 18.2. The Court also held that the offense of driving under the influence was not an offense at common law; therefore, the fact that she was on notice of the nature of the offense because the warrant charged her with driving while under the influence of alcohol was immaterial given the fact that she was not charged with violation of state law and the County ordinance was invalid.
Reversed and dismissed.
OPINION
Eleanor Mitchell was convicted of driving under the influence of alcohol in violation of Hanover County Code Sec. 15-2. The court imposed a fine of $250 and suspended her operator's license for a period of six months. The issues presented in this appeal are: (1) whether County Code Sec. 15-2 was valid at the time of Mitchell's arrest; and (2) if not, whether Mitchell's conviction can be sustained based on the wording of the warrant describing the offense.
The arrest warrant stated that Mitchell: "did unlawfully in violation of Sec. 15.2 [sic] operate a motor vehicle while under the influence of alcohol or other self administered drug or intoxicants."
In order to decide these issues, we must begin by considering the effect of certain legislative enactments of the General Assembly and the Hanover County Board of Supervisors. Virginia Code Sec. 15.1-132 permits local governing bodies to enact legislation prohibiting driving under the influence of alcohol or drugs. On January 30, 1974, the Hanover County Board of Supervisors approved an ordinance reenacting Sec. 9-1 of the County Code. The approved language provided that: "Article 6 of Chapter 2 of Title 18.1 of the 1950 Code of Virginia (Section 18.1-54 through 18.159) as amended or hereafter amended, is hereby adopted by reference."
In 1975, the General Assembly repealed Virginia Code Title 18.1. Title 18.2 was enacted in its place. Hanover County, however, did not pass any further legislation dealing with the crime of driving under the influence until 1982. At that time, the Board of Supervisors passed an ordinance which recodified the County Code. This ordinance stated: "That the Code of Ordinances, consisting of Chapters 1 to 24, each inclusive, is hereby adopted and enacted as the `Code of the County of Hanover, Virginia,' which Code shall supersede all general and permanent ordinances of the County adopted on or before January 28, 1981 . . ." Under the recodification, County Code Sec. 9-1 became Sec. 15-2. The 1982 ordinance made no provision reflecting the repeal of Virginia Code Title 18.1 and the passage of Title 18.2. Therefore, as of the date of Mitchell's arrest, September 16, 1983, Hanover County had not passed an ordinance adopting Virginia Code Title 18.2.
Hanover County Ordinance No. 82-5, effective June 1, 1982.
Although never authorized by ordinance, a reference to Virginia Code Sec. 18.2-266 et seq. was inserted into Sec. 15-2 of the County Code, in place of the authorized reference to former Virginia Code Sections 18.1-54 through 18.1-59. Because the reference to Code Sec. 18.2-266 et seq. was not adopted by ordinance as required by Code Sec. 15.1-504, it is a nullity. Therefore, the 1974 version, incorporating by reference former Virginia Code Sections 18.1-54 through 18.1-59, was the authorized version in effect as of the date of Mitchell's arrest.
The 1974 version contained a provision that "[a]rticle 6 of Chapter 2 of Title 18.1 (Section 18.1-54 through 18.1-59) . . . as amended or hereafter amended is hereby adopted by reference." However, Virginia Code Title 18.1 was not amended. It was repealed. A void act cannot be made the subject of an amendment. Burks v. Commonwealth, 126 Va. 763, 767, 101 S.E. 230, 231 (1919). Therefore, the language providing for prospective amendment to the County Code does not apply here, and Code Sec. 18.2266 et seq. was not incorporated into the County Code by operation of this provision. Based on this finding, we need not decide the validity of a local ordinance providing for the incorporation of prospective amendments to the Virginia Code.
(1) Having found that Virginia Code Sec. 18.2-266 et seq. was not incorporated into the Hanover County Code at the time of Mitchell's arrest, we must conclude that County Code Sec. 15-2, at that time, did not state an offense.
Next, we consider whether, absent reference to a valid code section, the wording of the warrant formed a sufficient basis for Mitchell's prosecution and conviction. The Commonwealth relies on Williams v. City of Petersburg, 216 Va. 297, 217 S.E.2d 893 (1975), in support of its position that the wording of the warrant alone was sufficient. Williams, however, presented a different issue. There, the defendant had been charged with driving under the influence and refusing to submit to a breath test. The warrant charging the refusal violation erroneously referred to former Code Sec. 18.1-54.1, rather than former Code Sec. 18.1-55.1. The court held that this did not invalidate the conviction because the warrant properly recited the gravamen of the offense set out in former Code Sec. 18.1-55.1, and the statement of the offense was sufficient to enable the defendant to adequately prepare his defense. Id. at 301-02, 217 S.E.2d at 897. Thus, Williams addressed the effect of a mistaken reference to a valid code section. It did not deal, as we do, with a code section that was itself invalid. Under the facts before us, notice to the defendant is not the issue. Mitchell knew she was being charged with driving under the influence. Instead, the issue before us is whether the warrant itself stated an offense.
(2-3) Driving under the influence of alcohol was not an offense at common law. It exists solely as a creature of statute. Therefore, the words set out in the warrant before us had no effect unless they described a crime under a valid County Code section. This is not altered by the fact that the wording on the warrant described a violation of Virginia Code Sec. 18.2-266 et seq. Mitchell was not charged with violating a provision of the Virginia Code. The existence of a state statute defining the same crime does not form a basis for conviction where a defendant has not been so charged. See Jenkins v. Bellingham Municipal Court, 95 Wn.2d 574, 627 P.2d 1316, 1320 (1981). We find that the warrant before us did not state an offense and was, therefore, insufficient to form the basis of a conviction. See Commonwealth v. Doss, 159 Va. 968, 973, 167 S.E. 371, 373 (1933).
In summary, because Hanover County Code Sec. 15-2 was invalid at the time of Mitchell's arrest, and the wording of the warrant was of itself insufficient to establish an offense, the conviction is invalid and must be dismissed.
Reversed and dismissed.
Barrow, J., and Benton, J., concurred.