46631 No. 0175-89-4
Decided October 30, 1990
(1) Motor Vehicles — Local Ordinances — Standard. — Code Sec. 46.1-188 (since repealed) allowed local governments to incorporate by reference specified provisions of title 18.2; a locality incorporating a statute must refer with specificity to those parts of the statute it wishes to incorporate.
(2) Motor Vehicles — Local Ordinances — Driving Under the Influence of Alcohol. — A city ordinance incorporating the provisions of Code Sec. 18.2-266 by using the words "pertaining to driving motor vehicles while intoxicated" sufficiently incorporates the provisions of Code Sec. 18.2-266(i).
Michael K. Murphy for appellant.
Kristina A. Keech, Assistant City Attorney; (Robert A. Bendall, City Attorney; Peter W. Steketee, Assistant City Attorney; Smith and Davenport, on brief), for appellee.
Defendant was convicted of driving under the influence in violation of a city ordinance. She argued that the ordinance, which included the words "pertaining to driving motor vehicles while intoxicated," did not incorporate the provisions of Code Sec. 18.2-266(i), the so-called "per se" offense (Circuit Court of Prince William County, John A. Jamison, Judge Designate).
The Court of Appeals affirmed, holding that the words in the city ordinance were words of description and did not act to exclude subsection (i) of Code Sec. 18.2-266.
In this criminal appeal, we hold that City of Manassas ordinance Sec. 17-331 successfully incorporates Code Sec. 18.2-266(i) by reference. The appellant contends that by including the words "pertaining to driving motor vehicles while intoxicated" in the ordinance, the City excluded subsection (i) of Code Sec. 18.2-266 because that subsection makes it unlawful to drive with a blood alcohol concentration of 0.10 percent or more, which is not necessarily related to driving while intoxicated. The appellant similarly argues that Code Sec. 15.1-132, which authorizes local governments to make ordinances "prohibiting the driving of motor vehicles . . . by any person while under the influence of alcohol," does not enable a locality to make an ordinance prohibiting the mere driving of a motor vehicle while one's blood alcohol level is 0.10% or more. We disagree.
"The provisions of section 18.2-266 of the Code of Virginia (1950) . . ., pertaining to driving motor vehicles while intoxicated, are hereby adopted and incorporated mutatis mutandis in this chapter by reference pursuant to the authority contained in section 46.1-188 of the Code of Virginia (1950), as amended." (Emphasis added.)
In its pertinent part, Sec. 18.2-266(i) states: "It shall be unlawful for any person to drive or operate any motor vehicle . . . while such person has a blood alcohol concentration of 0.10 percent or more. . . ."
(1) Code Sec. 46.1-188 (since repealed) allows local governments to incorporate "Article 2 (Sec. 18.2-266 et seq.) of Chapter 7 of Title 18.2 into such ordinances by reference." A locality incorporating a statute under Code Sec. 46.1-188 must refer with specificity to those parts of the statute it wishes to incorporate; otherwise the ordinance will be found vague and indefinite. Rollins v. Town of Gordonsville, 216 Va. 25, 26, 215 S.E.2d 637 (1975). City ordinance Sec. 17-331 specifically adopts "[t]he provisions of section 18.2-266 of the Code of Virginia." This language demonstrates an intent to adopt Sec. 18.2-266 as a whole.
(2) Furthermore, both article 2 of chapter 7 of Title 18.2 and the statute itself are headed with the words, "Driving Motor Vehicle, etc., While Intoxicated." The words in the City ordinance adopting provisions of the statute "pertaining to driving motor vehicles while intoxicated" are words of description and do not act to exclude subsection (i) from incorporation. The appellant's argument would have us restructure the sentence and move this descriptive phrase to modify "provisions" instead of "section 18.2-266."
The same reasoning applies to the enabling legislation, Code Sec. 15.1-132. The words "driving while under the influence" were not meant to define the prohibited conduct, but rather to enable a locality to legislate in an area defined by the General Assembly. One only need look to Code Sec. 18.2-266 to discover what that body has deemed "driving while intoxicated." Driving a motor vehicle with a blood alcohol concentration of 0.10 percent or more falls into that category per se.
Accordingly, the decision of the trial court is affirmed.
Benton, J., and Moon, J., concurred.