Opinion
47136 No. 0414-90-4
Decided July 23, 1991
(1) Criminal Procedure — Double Jeopardy — Same Act. — The test of whether there are separate acts sustaining several offenses is whether the same evidence is required to sustain them; under that test, one occasion of driving an automobile may give rise to more than one conviction.
Steve N. Luxford for appellant.
Leah A. Darron, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
SUMMARY
Defendant was convicted of fleeing a police officer and of hit and run. He argued that the convictions arose out of the same act and that the hit and run conviction was barred by Code Sec. 19.2-294 (Circuit Court of Arlington County, William L. Winston, Judge).
The Court of Appeals affirmed, holding that the hit and run conviction was not based on the "same act" of driving.
Affirmed.
OPINION
We hold that Michael Treu's conviction of fleeing a police officer in Fairfax County did not bar his subsequent hit and run conviction in Arlington County, even though the hit and run was the culmination of the same flight from the police that gave rise to the Fairfax County conviction.
(1) Code Sec. 19.2-294 provides in relevant part:
If the same act be a violation of two or more statutes, conviction under one of such statutes . . . shall be a bar to a prosecution under the other or others.
"[T]he test of whether there are separate acts sustaining several offenses `is whether the same evidence is required to sustain them.'" Estes v. Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971). Under that test, "one occasion of driving an automobile may give rise" to more than one conviction. Id.
Here, Treu failed to stop his truck after Fairfax police officers flashed emergency lights for him to stop. He fled at a high rate of speed from Fairfax County into Falls Church. Officer Allen Frede of the Falls Church Police Department positioned his cruiser so as to "box" in Treu. Without slowing down, Treu drove his vehicle into the cruiser and then fled from the scene. Frede sustained personal injury and the cruiser was damaged.
Offenses committed in Falls Church are prosecuted in Arlington County Courts.
On August 3, 1989, Treu pled guilty in Fairfax County to flight from and eluding the police, a violation of former Code Sec. 46.1-192.1. Subsequently, an Arlington County grand jury indicted him for failing to stop at the scene of an accident involving personal injury, a violation of former Code Sec. 46.1-176. Treu raised the provisions of Code Sec. 19.2-294 as a bar to the Arlington prosecution. He was convicted in Arlington County of failing to stop at the scene of an accident involving property damage, a violation of former Code Sec. 46.1-176.
Applying the Estes test to the facts, we conclude that the Arlington County prosecution for hit and run was not barred. None of the evidence involving the flight from police in Fairfax County was required to prove the hit and run in Falls Church. The Arlington County conviction was not based on the "same act" that served as the basis for the Fairfax County Conviction.
Accordingly, the judgment is affirmed.
Affirmed.
Duff, J., and Willis, J., concurred.