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HomeMy WebLinkAbout01-0352 FXCOMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, APPELLEE v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. o ~- 3 ~ a ~~,~;1 John Michael Spang APPELLANT NOTICE OF APPEAL i 1. Appellant, John Michael Spang is an adult individual whom currently resides at 3628 Lisburn Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Appellee, Commonwealth of Pennsylvania, Pennsylvania Department of Transportation, Bureau of Driver Licensing, Harrisburg, Dauphin County, Pennsylvania, 17123 is a state agency. 3. Your Appellant was arrested for allegedly operating his motor vehicle while driving under the influence on May 26, 2000, at 23:30 hours in the area of Fincastle, Virginia. 4. Your Appellant was notified on or about December 26, 2000, that his license was being suspended for a period of one year which would go into effect January 30, 2001 at 12:01 a.m. A true and correct copy of the Notice is attached as Exhibit "A". WHEREFORE, your Appellant respectfully requests your Honorable Court to grant him a hearing and deny the Commonwealth's request that his license be suspended and your Honorable Court to stay any and all suspensions. Respectfully Submitted: ~-IS- 200 ~t~-c-.~ M - ~~ COMMONWEALTH OF PENNSYLVANIA ---- "~ DEPARTMENT OF TRANSPORTATION ---- Bureau of Driver Licensing Harrisburg, PA 17123 ---- DECEMBER 26, 2000 ---- JOHN MICHAEL SPANG 003546102992421 001 -6100 STEPHENS CROSSING 12/19/2000 22671399 MECHANICSBURG PA 17050 06/21/1956 Dear Motorist: Section 1581 of the Vehicle Cade requires the Department to treat certain out of state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the Department receiving notification from VIRGINIA of your conviction on 11/08/200D of an offense which occurred on 05/26/2000, which is equivalent to a violation of Section 3731 of the Pa. Vehicle Code, DRIVING UNDER INFLUENCE, your driving privilege is being SUSPENDED far a period of 1 YEAR(S), as mandated by Section 1532B of the Vehicle Code: The efifective date of suspension is O1i30i2001, 12:01 a.m. - In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's license (camera card) in Your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571Ca)C4) of the Ve- hicle Code. Although the law mandates that your driving privilege is under suspension even if you do not surrender your license, Credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. :,, f 003546102992421 ---- Please see the enclosed application for restoration fee in- formation. You will be notified of any outstanding restoration re- _ quirements approximately 30 days before the eligibility date of the restoration of your driving privilege. You must follow those instructions very carefully in order to have your driving privilege restored. APPEAL ____.. You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 3G days of the mail d`afe, 6, 2000, of this letter. If you file an appeal in the County Court, the Court will give you a time- stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied copy of the appeal by certified mail to: '- Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing SEND FEE/LYCENSE/DL-16LC/T0: INFORMATION C7:D0 Department of Transportation IN STATE Bureau of Driver Licensing OUT-OF-STATE P.O. Box 68693 TDD IN STATE Harrisburg, PA 17106-8693 TDD OUT-OF-STATE AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Post Office Harrisburg, Pennsylvania, through first class certified mail, prepaid and addressed as follows: Pennsylvania Department of Transportation Office of the Chief Counsel 3'~ Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Date: VERIFICATION I, John Michael Spang, state that I am the Appellant in the above-captioned case and that the facts set forth in the above Notice of Appeal are true and correct to the best of my knowledge, information and belief. I realize that false statements herein are subject to the penalties for unsworn falsification to authorities under 18 Pa. C.S. 4904. Date: .,.. tT ~ ~ ~ v ~ ~ ~ c r ~ W `O ~ ~-; -;, ~ ~m ~-~ ;} .~ ~, - p C cn ~.~ ~ ..~ ~ ~ '„~ La :~ ::3 .. t- . , v ~~~, ~ ~ Y (t} ~ 4 L n' 3,.. ~ ( '"~" A Cc'1, ~xf?iRST I ti ,.3 ! igR.:i>iPW RaY!%u&1Trv39M:e~f.y!§P: ^~N. n, n ~ ~, COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA APPELLEE V NO. dl- 3~ eru~~ John Michael Spang APPELLANT ORDER OF COURT AND NOW, this ~7 s~ day of S~, 2001, based upon Appellant's Appeal a hearing Shall be held on ~jx/ day of ~-c.Xi , 2001, in Courtrooms at/d ~.ySo'clockg~.m. at the Cumberland County Colurthouse. r t~(~~~~C1AIti1- IS ~ l~CC~c cl ~o ~~ ~e 2 sv ~c cn~ ~o ~~s ~l'~rcC o~ w ~ X21 w~t~,.,~~Z o ~>> S ~r {~r~°~Z~~ ~ t~~s ~~f ~-r S e. G. ~'~ ~ 9 ~ n '^~ ~ z l E''c ~ ~0 c ~~ ~ ~r ~ 5 v .S U> S 1 pn 2 p c 2 l ~ CI -~c~w, w ~ sal ~w,~~~~cJ . 1 ,1 ~,//~ ~~.1%, . ~I G A ~ ~~~~ O1 ~~5 `~ rv? c~ ' T' _, ~ T, %~'> - G::SI a ~ ~ ~J ^r ~ i ~ / N}i^r fn ~ !v ` } . . ~t 1 ~ 11 ~il' Y : ..., ~ ~ f •' ~ ~ T ~~..nJ ~ ~C ~ ~ ' ~ W t.'L-32fr (9/95) CERTIFICATION DATE: February 13, 2001 I hereby certify that Rebecca L. Bickley, Director of the Bureau of Driver Licensing of the Pennsylvania Department of Transportation, is the legal custodian of the Driver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced in the attached certification. IN TESTIMONY WHEREOF,1 HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT' THE DAY AND YEAR AFORESAID. 1 HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND CORRECT CERTIFIED PHOTOSTATIC COPY OF: 1) Official Notice of suspension dated & mailed 12/26/00, effective 01/30/01; 2) Record of Conviction Detail, Out of State Driver Violations Report received from the licensing authority of the State of VIRGINIA, operating under the influence of liquor or drugs, date of violation 05/26/00, and date of conviction 11/08/00, and 3) Driving Record, which appears in the file of the defendant JOHN MICHAEL SPANG, operator's no. 22671399, date of birth 06/21/56, in the Bureau of Driver Licensing, Harrisburg, Pennsylvania. CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9, 1976, P.L. 586, as amended, 42 Pa.C.S. §§6103 and 6109. IN TESTIMONY WH€REOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR AFORESAID. ~ e SEAL REBECCA L. BICKLEY, DIR TOR BUREAU OF DRIVER LICENSING Commonwe4lth's EXHIBIT III • • COMMONWEALTH OF PENNSILVANIA ^--- ~ DEPARTMENT OF TRANSPORTATION ---- Bureau of Driver Licensing Harrisburg. PA 17123 ---- DECEMBER 26, 2000 ---- • JOHN MICHAEL SPANG D0354bb02992421 OOb 6100 STEPHENS CROSSING 12/19/2000 22671399 • MECHANICSBURG PA 17050 Ob/21/195b Omar Motorist: Section 1581 of the Vehicle Code requires the Department to treat certain out of state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the . Department receiving notification from VIRGINIA of your conviction on 11/08/2000 of an offense which occurred on 05/26/2000, which is equivalent to a violation of Section 3731 of the Pa. Vehicl® Code, DRIVING UNDER INFLUENCE, Your driving privilege is being SUSPENDED for a period of 1 YEAR(S), as mandated by Section 15328 of the Vehicle Code. ~ The eitextive date of suspension is 0130/2001, 12s01 a.01. ~ In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or . temporary driver's license (camera card) in Your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DL1bLC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in ', this Bureau referring this matter to the Pennsylvania State Police Por prosecution under SECTION 1571(x1(4) of the Ve- hicle Coda. Although the law mandates that your driving privilege is under suspension even if you do not surrender your license. Credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. ~ WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT. WE WILL SEND YOU A RECEIPT. IF VOU 00 NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. ~ OTHERWISE. YDU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. ~\ 003946102992421 Please see the enclosed application for restoration fee in- formation. You will be notified of any outstanding restoration re- quirements approximately 30 days before the eligibility date of the restoration of vuur driving privilege. You must follow those instructions very carefully in order to have your driving privilege restored. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the moil date, DECEMBER 26. 2000, of this letter. I? yoY file an appeal in the County Court, the Court will give you a tisae- atamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied copy of the appeal by certified mail ta: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Sincerely, B~~• Rebecca L. Bickley, Director Bureau of Driverv licensing SEND FEE/LICENSE/DL-16LC/TOc INFORMATION (7:00 Department of Transportation IN STATE Bureau of Driver Licensing OUT-OF-STATE P.O. Box 68693 TDD IN STATE Harrisburg, PA 17106-8693 TDD OUT-OF-STATE AM TO 9s00 PM) 1-800-932-4600 71T-391-6190 1-800-228-067b 717-391-6191 ~~ DEPARTMENTOFMOTOR VEHICLES RICHARD D. HOLCO MB POST OFFICE BOX 27412 STREET ADDRESS coMMissiorvea RICHMOND, VIRGINIA 23269 - 0001 2300 WEST BROAD STREET 11/28/00 MR. FRANCIS H. MCCORMICK, CHIEF FINANCIAL RESPONSIBILITY DIVISION ROOM 412, HIGHWAY AND SAFETY BUILDING HARRISBURG, PA 17123 THIS IS TO CERTIFY THAT THIS MACHINE PRODUCED DOCUMENT IS AN ACTUAL ACCOUNT OF CONVICTION INFORMATION RECEIVED BY ELECTRONIC MEANS FROM THE COURT(S) INDICATED BELOW. RICHARD D. HOLCOMB, COMMISSIONER DRIVER LICENSE NUMBER ST NAME DOB SEX 22671399 PA SPANG, JOHN MICHAEL 06/21/56 M ADDRESS CITY/STATE/ZIP PLEA 6100 STEPHENS CROSSINGS MECHANICSBURG, PA 17055 REASON OF CONVICTION OfF DATE CONV DATE GMV HAZ DRIVING 47HILE INTOX, 1ST 05/26/00 11/08/00 CDNVICTION CDDE CT DOCKET TAG COURT JURISDICTION/TYPE A18.2-266 0000578300 BOTETOURT GEN DIS CT DRIVER LICENSE NUMBER ST NAME DOB SEX ADDRESS CITY/STATE/ZIP PLEA REASON DF CONVICTION OFF DATE CONV DATE CMV HAZ CONVICTION CODE CT DDCKET TAG COURT JURISDICTHIN/TYPE DRIVER LICENSE NUMBER ST NAME DOB SEX ADDRESS CITY/STATE/ZIP PLEA REASON OF CONVICTION OFF DATE CONV DATE CMV HAZ CONVICTION CODE CT DOCKET TAG 1000RT JURISDICTION/TYPE O PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING - CERTIFIED DRIC1`ING HISTORY JAN 29 2001 DRIVER: JOHN MICHAEL SPANG DRIVER LICENSE NO 6100 STEPHENS CROSSING DATE OF BIRTH MECHANICSBURG, PA 17050 SEX RECORD TYPE DRIVER LICENSE (DL) LICENSE CLASS C LICENSE ISSUE DATE: JUN 30 2000 LICENSE EXPIRES JUN 22 20'Q4- MED RESTRICTIONS LEARNER PERMITS LICENSE STATUS NONE PEND SUSPEND PAGE 1 22671399 JUN 21 1956 MALE REG LICENSE COMMERCIAL DRIVER LICENSE (CDL) --------------------------------- CDL LICENSE CLASS CDL LICENSE ISSUED `=CAL; LICENSE EXPIRES: :- ,::~ CDL" ~IdAQRSEMENTS NONE CDL :RESTRICTIONS NONE CDL LEARN~lt PERMITS: CDL L:I'CENSE'STATUS PEND SUSPEND SB E PR PL L PL L PL L PL L PL L OLL OLL i *** CONTINUED *** ENT. ICENSE (PL) YSNSN,u ;GLASS EN$ at~RIG ISS: EN~Sr=I~SUED EN~L=~{PIRES PI+~£~'s STATUS '~I#)I~AE kIMITED LICENSE (OLL) --... --------------- CEASE CLASS CENSE;,-ISSUED CENS~:EXPIRES: CENSE STATUS ,~ J PAGE 2 CERTIFIED DRIVING HISTORY - JAN 29 2001 - LICENSE NUMBER 22671399 CONTINUED REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS ----------------------------------------------------- VIOLATION DATE: FEB 28 1990 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 073 MPH IN A 055 MPH ZONE CONVICTION DATE: MAR 20 1990 ACTION: ASSIGNED POINTS VIOLATION DATE: FEB 21 1`990: VIOLATION: VEHICLE_CODE: 3323B DESCRIPTION: STOP"SIGNUIOLATION CONVICTION DATE: MAR.06s;199A` ACTION: POINT EXAM- ACTION: PASSED':EXAM JUN 28 .19;90 VIOLATION DATE: APR 19:3990 VIOLATION: VEHICL~.,CODE: 33b2 DESCRIPTION: EXCEEIING =2!IAX3NlUM" SPEED 047 MPH IT+i A `025 MPH ZONE CONVICTION DATE: APR 18 1995 ACTION: DEPARTMENTAL HEARING ACTION: NO ACTION AS A RESULT OF A HEARING VIOLATION DATE: SEP 06 1996 VIOLATION: VEHICLE CODE: 3323B DESCRIPTION: STOP SIGN VIOLATION CONVICTION DATE: SEP 18 1996 ACTION: ASSIGNED POINTS *** CONTINUED *** PAGE 3 CERTIFIED DRIVING HISTORY - JAN 29 2001 - LICENSE NUMBER 22671399 CON VIOLATION DATE: OCT O1 1998 VIOLATION: VEHICLE CODE: 3714 DESCRIPTION: CARELESS DRIVING CONVICTION DATE: OCT 23 1998 ACTION: ASSIGNED POINTS VIOLATION DATE: MAY 30 1999 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM'`SFEED 080 MPH IN A` 0:65 'MPH ZONE` CONVICTION DATE: JUL 30 1999 ACTION: POINT EXAM ACTION: PASSED EXAMAUG 31 1999. VIOLATION DATE: MAY 26: 2000 VIOLATION: VEHICIi~:,CODE: 37 DESCRIPTION: DRIUTI±7G?=UNDER INE! CONVICTION DATE: NOV a~$2U00 ACTION: SUSP' ?DI~S~R: LIC COM REPORT OE'=MEDICALS AND DEPARTMENTAL ACTIONS NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD *** CONTINUED *** PAGE 4 CERTIFIED DRIVING HISTORY - JAN 29 2001, - LICENSE NUMBER 22671399 CONTINUED --------------------------------------------------- REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS --------------------------------------------------- MOTOR VEHICLE ACCIDENT RECORDS LISTED ON T$IS OPERATING REPORT DO NOT INDICATE FAULT FOR THE ACCIDENT. THE RECORD ONLY INDICATES THAT THIS INDIVIDUAL OR THE INDIVIDUAL'S VEHICLE WAS INVOLVED IN AN ACCIDENT ON THE DATE LISTED. ACCIDENT DATE: OCT O1 198 LOCATION: LEBANON.COUNTY VEHICLE TYPE: PASSEA7GE`R . *** END OF RECORD *** ~, PAGE 5 CERTIFIED DRIVING HISTORY - JAN 29 2001 - LICENSE NUMBER 22671399 CONTINUED IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFY THAT I HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART- MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED. SINCERELY, COMMONFTEALTH OF PENNSYLVANSP,.:SS: I HEREBY CEIFY THAT BUREAU OF :D~ETIER LICEN OF TRANSPORTATTON IS T LICENSING FtECO~DS OF T THE DIRECTOR wAF';:;THE AF, OF THE OR•IG~NAL.CIR MIC 'DATE:JAN 29 2001 BICKLEY, ,p~'RECTOR OF THE PENNSYLgA~IA` DEPARTMENT TODIAN OF`TH~ DRIVER T OF TRAI~SPOR2!ATION. AS ATJ, SHE I~;S REGAL CUSTODY DS ':WHICH''AREi'THE `SUBJECT OF THE ABOVE .CERTIFIEAT-I,ON. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET-NIY HAND AND SEAL OF THIS DEPARTMNNT'THE DAY AND YEAR AFORESAID. SINCERELY, SECRETARY OF TRANSPORTATION SEAL Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 1 of 15 Source: All Sources :States Legal - U.S.: Virginia :Statutes & Legislative Materials : VA -Virginia Code Annotated, Constitution, Court Rules and ALS TOC: Code of Virginia : / ... ! :ARTICLE 2. DRIVING MOTOR VEHICLE, ETC., W RILE INTOXICATED : § 18.2.266. Driving motor vehicle, engine, etc., while intoxicated, etc Terms: 18.2-266, under the influence, to a degree which impairs his abilityto drive (Edit Search) Va. Code Ann. § 18.2-266 CODE OF VIRGINIA Copyright (c) 1999-2001 by Matthew Bender & Company, Inc. ~ _ one of the LEXIS Publishing companies. All rights reserved. / *** STATUTES CURRENTTHROUGH 2000 LEGISLATIVE SESSION *** (~(b/ ~-~(~t/ *** (ANNOTATIONS CURRENT THROUGH JANUARY 2, 2001) *** 1 TITLE 18.2. CRIMES AND OFFENSES GENERALLY CHAPTER 7. CRIMES INVOLVING HEALTH AND SAFETY ARTICLE 2. DRIVING MOTOR VEHICLE, ETC., WHILE INTOXICATED ~ GO TO CODE ARCHIVE DERECTORY FOR THIS 7URYSDYCTION Va. Code Ann. § 18.2-266 (2000) § 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self- administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv). For the purposes of this section, the term "motor vehic/e"includes mopeds, while operA'ted on the public highways of this Commonwealth. HISTORY: Code 1950, § 18.1-54; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 637; 1984, c. 666; 1986, c. 635; 1987, c. 661; 1992, c. 830; 1994, cc. 359, 363; 1996, c. 439. NOTES: CROSS REFERENCES. --As to dismissal of one of dual charges for driving while intoxicated and reckless driving upon conviction of other charge, see § 19.2-294.1. As to revocation of license upon fourth conviction, see § 46.2-394. As to incorporation of provisions of this article in local ordinances, see § 46.2-1313. THE 1996 AMENDMENT added the second sentence in the first paragraph. LAW REVIEW. --For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For note discussing the defendant's right to independent analysis of the breathalyzer ampoule, see 21 Wm. & Mary L. Rev. 219 (1979). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. ../retrieve? m=a95c6507tb4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=-6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 2 of 15 585 (1981). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989). For 1991 survey on criminal law and procedure, see 25 U. Rich. L. Rev. 731 (1991). For note, "Drunk Driving, Administrative License Suspension, and Double Jeopardy in Virginia", see 4 Geo. Mason L. Rev. 521 (1996). For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997). RESEARCH REFERENCES. --Cohen and Green, Apprehending and Prosecuting the Drunk Driver: A Manual for Police and Prosecution (Matthew Bender). James F. Mosher, Liquor Liability Law (Matthew Bender). Richard E. Erwin, Defense of Drunk Driving Cases: Criminal -Civil (Matthew Bender). I. General Consideration. II. Illustrative Cases. I. GENERAL CONSIDERATION.. CONSTRUCTION. --In construing this section and §§ 18.2-270 through 18.2-273 consideration must be given to the words used, their relation to the subject matter in which they are used, the purposes for which the statute was intended, and the mischief sought to be suppressed. Commonwealth v. Ellett, 174 Va. 403, 4 S.E.2d 762 (1939). To determine the proper interpretation of this section, the court must focus on the specific language used in this section, and the appropriate evidentiary weight of the results of the subsequently administered blood alcohol test. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). CONSTRUCTION WITH OTHER LAW. --Reckless driving and speeding are separate and distinct offenses; nothing in the language of § 19.2-294.1 precludes the Commonwealth or a locality from convicting a person for both DUI and speeding. White v. Commonwealth, 26 Va. App. 410, 494 S.E.2d 896 (1998). A conviction under § 18.2-36.1 requires proof both that the accused violated clause (ii), (iii), or (iv) of this section and that such misconduct caused the death of another, elements not necessary to common law involuntary manslaughter. Section 18.2-36.1 C expressly provides that the provisions of § 18.2-36.1 shall not preclude prosecution under any other homicide statute. Stover v. Commonwealth, 31 Va. App. 225, 522 S.E.2d 397 (1999), upholding defendant's conviction under § 18.2-36 for involuntary manslaughter. Definitions in section 46.2-100 do not control Title 18.2, and therefore, the definition of operator pursuant to § 46.2-100 was inapplicable where defendant was convicted of driving a motor vehicle while under the influence of alcohol. Reynolds v. City of Va. Beach, 31 Va. App. 629, 525 S.E.2d 65 (2000). THIS SECTION DEFINES A SINGLE OFFENSE, commonly referred to as DUI, and the clauses merely set forth the means by which the offense of driving under the influence may be proved. Graham v. Commonwealth, No. 2292-91-3 (Ct. of Appeals June 22, 1993). THE GRAVAMEN OF THE OFFENSE is driving while under the influence of alcohol, and the Commonwealth must establish both essential facts beyond a reasonable doubt to carry the burden of proof. Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968}. THE ISSUE UNDER CLAUSE (I) OF THIS SECTION 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 (now .08) percent. Lemond v. Commonwealth, 19 Va. App. 687, 454 S.E.2d 31 (1995). THIS SECTION AND THE "IMPLIED CONSENT" STATUTE ARE SEPARATE. --Former "implied consent" statute § 18.2-268 (now § 18.2-268.2 et seq.) and the drunken driving statute (this section) are not intricately related, but rather completely separate offenses with separate .../retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& frntstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 3 of 15 penalties. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970). The defendant's contention at the trial that this section and former § 18.2-268 (now § 18.2-268.1 et seq.) should be read together by virtue of the decision of Russell v. Hammond, 200 Va. 600, 106 S.E.2d 626 (1959) has no merit. This section is a separate statute and is not cited in Russell v. Hammond as being read together with the blood test statutes. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970). DRIVING AN AUTOMOBILE MEANS PUTTING IT IN MOTION. Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964). BUT THE WORD "OPERATE" IS NOT LIMITED TO MOVING THE VEHICLE from one place to another. Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964); Lyons v. City of Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980). The meaning of the word "operate" as used in this section is not limited to the movement of the vehicle. Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971). The word "operate" is not defined in this section, but the word "operator" is defined, in part, in § 46.1-1 (17) (see now § 46.2-100) as "every person who drives or is in actual physical control of a motor vehicle," and this definition is approved for the purpose of determining whether one "operates" a motor vehicle within the meaning of this section. Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971); Lyons v. City of Petersburg, 221 Va. 10, 266 S.E.2d 880 (1980). The language of this section is to be construed to mean that a vehicle need not be functional in the sense of being able to move from place to place in order to be "operated." Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473 (2000). IT IS THE COMMONALITY OF THE UNDERLYING OFFENDING CONDUCT, the continuous, uninterrupted operation of a motor vehicle, that invokes the preclusive effect of this section. Harris v. City of Va. Beach, 19 Va. App. 214, 450 S.E.2d 401 (1994). "OPERATING" INOPERABLE VEHICLE. --The contention that a defendant cannot be convicted of operating an inoperable vehicle is without merit, since a motor vehicle is defined in § 46.1- 1 (15) (see now § 46.2-100) as "every vehicle as herein defined which is self-propelled or designed for self-propulsion." Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971). Where defendant was arrested after the officer found him sitting at the steering wheel of his car, which was stuck in a ditch, with the motor running and the right rear wheel spinning, it was held that he was operating the vehicle and that his conviction was proper under this section, for it prohibits operation as well as driving of a vehicle while intoxicated. Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964). NO BRIGHT LINE RULE FOR "OPERATING" OR "DRIVING." --Neither the court of appeals nor the state supreme court has fashioned a bright line rule that a vehicle's motor must be running or its ignition switch must be in the "on" position for a defendant to be convicted of driving or operating a motor vehicle while intoxicated in violation of this section. Propst v. Commonwealth, 24 Va. App. 791, 485 S.E.2d 657 (1997). PUBLIC OWNERSHIP OF THE PROPERTY UPON WHICH THE VEHICLE IS DRIVEN or operated is not an element the Commonwealth must prove in a prosecution for driving in violation of this section. Mitchell v. Commonwealth, 26 Va. App. 27, 492 S.E.2d 839 (1997). VIOLATION MAY OCCUR IN PARKING LOT. --This statute does not specify that the driving or operating that it criminalizes must occur on a public highway; thus defendant could properly be convicted of drunk driving for such conduct in a parking lot. Gray v. Commonwealth, 23 Va. App. 351, 477 S.E.2d 301 (1996). NO AUTOMATIC RIGHT TO BLOOD TEST. --It does not appear that a person arrested for driving under the influence has the automatic right to a blood test. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970). /retrieve? m=a95c65071b4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 4 of 15 Former section 18.2-268 (now § 18.2-268.1 et seq.) did not entitle one charged with a violation of this section to an automatic blood test. United States v. Fletcher, 344 F. Supp. 332 (E.D. Va. 1972). EFFECT OF REFUSAL TO TAKE BLOOD TEST. --The concept of the law is that a driver, if arrested under this section, may be asked to consent to taking the blood test and for an unreasonable refusal, the penalty of a suspended license would be imposed. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970). VIOLATION OF SECTION AS NEGLIGENCE. --If defendant was driving his car while under the influence of intoxicants, he violated this section and that was negligence. Yet it was not his intoxication but his negligence that had to be the proximate cause of the mishap before there could be a finding against him because of his conduct in that respect. Bogstad v. Hope, 199 Va. 453, 100 S.E.2d 745 (1957). ONE COMMITTING A HOMICIDE WHILE VIOLATING THIS SECTION MAY BE CONVICTED OF INVOLUNTARY MANSLAUGHTER. Massie v. Commonwealth, 177 Va. 883, 15 S.E.2d 30 (1941) . THERE CAN BE NO CONVICTION UNLESS THERE IS EVIDENCE TENDING TO ESTABLISH THE AGENCY RESPONSIBLE for the erratic behavior of the accused. Miller v. Commonwealth, 214 Va. 689, 204 S.E.2d 268 (1974). BEING "UNDER THE INFLUENCE OF ALCOHOL" is established when any person has consumed enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation. Moore v. Commonwealth, No. 0264-99-4 (Ct. of Appeals July 25, 2000). TEST IS AS TO WHETHER DEFENDANT WAS UNDER INFLUENCE OF INTOXICANTS. --Under this section the burden is not upon the Commonwealth to prove that, while he was driving an automobile, accused was under the influence of intoxicants to such an extent that his abilitb to drive with safety to himself and others was thereby materially impaired. The test to be applied, in a prosecution under this section, is not merely the ability of the driver to operate the automobile with safety to himself and others, but whether or not he was under the influence of intoxicants at the time he was driving or running an automobile. Owens v. Commonwealth, 147 Va. 624, 136 S.E. 765 (1927). TEST MUST RELATE TO ALCOHOL CONSUMPTION BEFORE OR DURING ACT OF DRIVING. -- Because the evil which this section is intended to prohibit is driving with a specified blood alcohol concentration and because the language employed in the statute refers to driving while having a specified blood alcohol concentration, the after-administered blood alcohol concentration test results must be related to the consumption of alcohol before or during the act of driving. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). TEST RESULTS PRESUMPTIVE. --Because the blood alcohol concentration reflected by the chemical test necessarily resulted from alcohol consumed prior to or during driving, the test results are presumptive evidence of the blood alcohol concentration at the time of driving and as such, the accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). CHEMICAL ANALYSIS OF BLOOD ALCOHOL CONTENT AS EVIDENCE. --There is no reason why the results of a chemical analysis of blood alcohol content should not be admissible if based upon a foundation which tends to ensure the reliability of the test equipment and procedures, the integrity of the chain of custody of the blood specimen, and the technical competence of the person who performed the analysis. Whether the foundation is sufficient is a question /retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 5 of 15 within the sound discretion of the trial judge. If the judge finds the foundation sufficient, the credibility of the witnesses and the weight to be accorded the evidence are matters within the province of the jury. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). DEFENDANT MAY CONTEST RELIABILITY OF BLOOD ALCOHOL CONCENTRATION TEST. -- Defendant who was convicted of operating a motor vehicle while having a blood alcohol concentration of .10 percent may contest reliability of a blood alcohol concentration test results by proving in an appropriate case that the margin of error of a particular device was in excess of the margin deemed scientifically acceptable; however, merely proving the margin of error in a particular breathalyzer test, without more, does not as a matter of law, negate its reliability. Nelson v. Commonwealth, 16 Va. App. 266, 430 S.E.2d 553 (1993). OTHER EVIDENCE OF INTOXICATION. --Where the Commonwealth offers no chemical test results of an accused's blood or breath, the issue becomes whether the accused is under the influence, which has to be determined from all of the evidence of his condition at the time of the alleged offense. Moore v. Commonwealth, No. 0264-99-4 (Ct. of Appeals July 25, 2000). EXTENT OF OUT-OF-STATE CONVICTION CONFORMANCE NECESSARY. --In order to adjudicate a defendant an habitual offender based upon a conviction from another state, only that prohibition of the other state's law under which the person was convicted must substantially conform to this section. Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995). It is not required that another state's law regarding driving while under the influence of intoxicants or drugs conform in every respect to this section in order for an out-of-state conviction to be used as a predicate offense; only that portion of the other state's law under which the person was convicted must substantially conform. Commonwealth v. Lowe, 31 Va. App. 806, 525 S.E.2d 636 (2000). PREDICATE CONVICTION. --A conviction under clause (i) of this section is a predicate conviction to a finding of habitual offender status under § 46.2-351. Flaherty v. Commonwealth, 14 Va. App. 148, 415 S.E.2d 867 (1992). RIGHT TO JURY TRIAL. --Article I, § 8, of the Virginia Constitution and Rule 3A:13(a) guaranteed defendant a right to a jury in the trial court on both charges of driving under the influence and driving on a revoked operator's license. McCormick v. City of Virginia Beach, 5 Va. App. 369, 363 S.E.2d 124 (1987). THE BURDEN IS ON THE COMMONWEALTH to prove that the defendant was under the influence of intoxicants, not on the defendant to prove that he was not. The Commonwealth's evidence must exclude every reasonable hypothesis of innocence. Until that is done the defendant is not required to explain or to offer evidence of his innocence. Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968). In order to convict the defendant, it is necessary that the Commonwealth establish two things: (1) that the defendant was operating or driving a motor vehicle, and (2) that he was under the influence of intoxicants at the time he was driving or operating it. Nicolls v. Commonwealth, 212 Va. 257, 184 S.E.2d 9 (1971). The Commonwealth bears the burden of proving that the accused was driving under the influence of alcohol or other self-administered intoxicant. Miller v. Commonwealth, 214 Va. 689, 204 S.E.2d 268 (1974). CONSUMPTION OF ALCOHOL AFTER DRIVING. --Where there is evidence that alcohol has been consumed after driving the chemical test cannot accurately reflect the blood alcohol concentration at the time of driving since the chemical test simply cannot distinguish between two sources of alcohol, and where no alcohol is consumed between the time of driving and the time the chemical test is administered, the test results can reflect only that alcohol consumed before or during driving, and clause (i) is applicable only in these latter circumstances. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). /retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fmtstr-FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 6 of 15 REQUIREMENTS IN ORDER TO IMPLICATE §§ 18.2-268.2 THROUGH 18.2-268.8. --Sections 18.2-268.2 through 18.2-268.8 provide the procedural requirements for taking, handling, identifying and disposing of blood samples under Virginia's implied consent law. To implicate the statutes the driver must have operated a motor vehicle upon a public highway in this Commonwealth and have been arrested for a violation of this section (or a similar ordinance) within two hours of the alleged offense of driving under the influence of alcohol. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). INTOXICATION IS RELEVANT TO DETERMINATION OF DEGREE OF DEFENDANT'S NEGLIGENCE whether ordinary, gross or wanton. It may serve to elevate the defendant's conduct to the level of negligence so gross, wanton and culpable as to show a reckless disregard of human life, a requisite element for a conviction of involuntary manslaughter. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). The degree of intoxication is a circumstance relevant to a determination of the question whether, in light of all other circumstances, the act of driving an automobile was such an improper performance of a lawful act as to constitute negligence so gross and culpable as to indicate a callous disregard to human life. Beck v. Commonwealth, 216 Va. 1, 216 S.E.2d 8 (1975). Where driver was driving a car and he admitted on the scene that he had been drinking before getting behind the wheel that night, and defendant said that he could smell alcohol on plaintiff, probable cause existed to arrest driver for DUI. Cooper v. City of Va. Beach, 817 F. Supp. 1310 (E.D. Va. 1993). CRIMINAL NEGLIGENCE. --Even when the evidence shows a level of intoxication lower than that necessary to a conviction for violation of this section, such evidence is germane to the question of criminal negligence. Beck v. Commonwealth, 216 Va. 1, 216 S.E.2d 8 (1975). EVIDENCE OF PRIOR DRIVING UNDER THE INFLUENCE (DUI) CONVICTIONS DOES NOT CONSTITUTE THE "TRAFFIC RECORD" as contemplated by § 46.2-943 where the offense charged under this section is a subsequent offense of DUI punishable under § 18.2-270. Proof of such charge requires proof of the prior DUI convictions, and a trial court, therefore, does not err in admitting evidence of a defendant's prior DUI convictions independent of his prior traffic record during the guilt stage of the trial. Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990). IN A DUI SECOND.OFFENSE TRIAL, THE BURDEN IS ON THE COMMONWEALTH TO PROVE THE PRIOR CONVICTION BEYOND A REASONABLE DOUBT. McBride v. Commonwealth, 24 Va. App. 30, 480 S.E.2d 126 (1997). Because the Commonwealth offered no evidence to rebut the presumption that defendant was not found guilty of violating this section in the prior proceeding, the trial court's conclusion that he had a prior conviction lacked evidence to support it. McBride v. Commonwealth, 24 Va. App. 30, 480 S.E.2d 126 (1997). TO BE CONSIDERED UNDER HABITUAL OFFENDER STATUTE, CONVICTION IN ANOTHER STATE MUST BE BASED ON CONDUCT WHICH VIOLATES THIS SECTION. --If a conviction in another state is based on conduct which is not a violation of this section, then to consider it under § 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized. Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991). To allow a conviction in another state to be the basis for a finding that a person is an habitual offender would expand § 46.2-351 beyond its stated limits if the conviction in the other state was based on an act which would not be a violation of this section. Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991). Another state's law permitting a conviction for an act not constituting an offense under this section is not substantially conforming under § 46.2-351. Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991). .../retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fintsti=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 7 of 15 CONDUCT RATHER THAN DEGREE OF INTOXICATION DETERMINES MALICE. --The defendant's degree of intoxication, however great, neither enhances nor impairs the set of facts relied upon to establish implied malice. In making the determination whether malice exists, the fact finder must be guided by the quality of the defendant's conduct, its likelihood of causing death or great bodily harm, and whether it was volitional or inadvertent; not by the defendant's blood-alcohol level. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). CLAUSE (I), THE PER SE STATUTE. --The presumptions contained in § 18.2-269 are not applicable to an offense under clause (i) as a result of the 1986 amendment to this code section and thus, the inquiry under this section 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 pursuant to former § 18.2-268 (now § 18.2-268.1 et seq.) and it is for this reason that clause (i) has come to be known as the "per se" statute. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d it (1989). While the clause (i) proscribes no time limit within which the chemical test must be administered after driving, it is axiomatic that there can be no prosecution under this section without the existence of a chemical test obtained under the provisions of § 18.2-268(6). Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989). CITY ORDINANCE SUCCESSFULLY INCORPORATED CLAUSE (I). --City ordinance successfully incorporated this section by reference; 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 clause (i) from incorporation. Reardon v. City of Manassas, 11 Va. App. 244, 397 S.E.2d 544 (1990). ORDINANCE AGAINST DRIVING UNDER INFLUENCE OF ALCOHOL PARALLELED AND SUBSTANTIALLY CONFORMED TO STATE STATUTE and thus conviction under ordinance could be considered in determining whether defendant was habitual offender. Although ordinance adopted prior version of statute and did not provide for incorporation of future amendments, and statute was amended, adding a per se offense of operating a vehicle with a blood alcohol level of 0.15 percent or more, the ordinance nonetheless met the requirement that it parallel and substantially conform to this section. West v. Commonwealth, 14 Va. App. 350, 416 S.E.2d 50 (1992). APPLICABILITY OF TESTING REQUIREMENTS. --While the statutory requirements of § 18.2- 268 (see now § 18.2-268.1 et seq.) are to be strictly applied, they apply only to DUI prosecutions under this section, and not to an involuntary manslaughter prosecution under § 18.2-36. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995). NEED FOR CLEANSING PROCEDURES TO COMPLY WITH STATUTE. --Because the driving under the influence (DUI) statutes specify the means for cleansing the puncture area, failure to comply with the statutory requirement would necessitate that the prosecution be dismissed. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995). WHEN BREATHALYZER NOT PREREQUISITE TO WARRANT. --Where an officer has probable cause to obtain an arrest warrant for driving under the influence, there is no legal requirement that the officer administer a breathalyzer test before obtaining the arrest warrant. Leonard v. County of Spotsylvania, No. 2089-96-2 (Ct. of Appeals June 3, 1997). A CHEMICAL ANALYSIS OF ONE'S BLOOD provides a scientifically accurate method of determining whether a person is intoxicated, removes the question from the field of speculation, and supplies the best evidence for that determination. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). .../retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 8 of 15 CHEMICAL ANALYSIS RELEVANT TO DEGREE OF INTOXICATION. --Proof by chemical analysis of the percentage of alcohol in the blood is relevant to a determination of the degree of intoxication. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). ERROR TO ADMIT BLOOD TEST RESULTS WHERE FAILURE TO FOLLOW STATUTORY MANDATES. --Where the government has failed in its responsibilities to follow the statutory mandates in the taking, handling, identification and disposition of blood samples under the statutory scheme, it is error to admit at trial the results of tests concerning such blood samples. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). DEGREE OF INTOXICATION RELEVANT TO PUNISHMENT. --The defendant's degree of intoxication is relevant to a determination of the appropriate quantum of punishment. Voluntary intoxication, in the case of a driver, is an aggravating factor properly considered for this purpose. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). INTOXICATION RELEVANT AS AGGRAVATING FACTOR BEARING ON CULPABILITY OF CONDUCT. --The same reckless driving is more dangerous at the hands of a drunken driver than it would be if he were sober, and his conduct is therefore more culpable. Intoxication, therefore, is relevant as an aggravating factor, increasing with its degree, bearing upon the relative culpability of the defendant's conduct, even though it is irrelevant to the determination of malice. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). DEGREE OF INTOXICATION IS AGGRAVATING FACTOR WHEN DEATH IS PROXIMATE RESULT. --When death is the proximate result of criminal negligence in the operation of a motor vehicle, the degree of a driver's intoxication is relevant as an aggravating factor, tending to show the relative dangerousness of his conduct. Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984). NO PRESUMPTION OF INTOXICATION WHERE CERTIFICATE INADMISSIBLE. --Where the certificate of analysis of the breath test is inadmissible, the Commonwealth is not entitled to a rebuttable presumption that defendant was intoxicated at the time of the alleged offense (where his blood-alcohol content was greater than 0.10%). Such defendant's guilt or innocence must therefore be determined from the other evidence of his condition at the time of the alleged offense. Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984). SOBRIETY CHECKPOINT. --The seizure of defendant upon the initial stop at a license and sobriety checkpoint in question was constitutionally valid, where uniformed police officers, wearing reflector vests, were assigned to the scene, the area and the warning sign were well- lighted, there were two marked police vehicles present with red lights flashing, the geography of the site permitted adequate space for the momentary initial detention to check licenses and to afford space for vehicles, whose operators required further evaluation, to pull aside, the officers at the checkpoint had no discretion regarding which vehicles to stop and every southbound vehicle was halted, if congestion occurred, vehicles were permitted to move through the checkpoint until the congestion cleared, and the police endeavored to detain a motorist no more than 30 seconds for the license check. Balancing the state's strong interest in protecting the public from the grave risk presented by drunk drivers, against the minimal inconvenience caused motorists approaching the roadblock, the action of the police was not an impermissible infringement upon defendant's reasonable expectation of privacy. Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S. Ct. 1464, 89 L. Ed. 2d 720 (1986). THE PRESCRIBED MEASUREMENT IS AN EVIDENTIARY FACT WHICH CREATES A REBUTTABLE PRESUMPTION that the measurement accurately reflects the blood alcohol concentration at the time of driving. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d li (1989). PRESUMPTION OF BLOOD ALCOHOL CONCENTRATION AT TIME OF DRIVING. --Where it is /retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 ~~ Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 9 of 15 undisputed that appellant's blood alcohol concentration at the time of testing registered at 0.17 percent, there is a presumption that appellant's blood alcohol concentration was also 0.17 percent at the time of driving. Kehl v. Commonwealth, 15 Va. App. 602, 426 S.E.2d 127 (1993). THE PRESCRIBED MEASUREMENT IS AN EVIDENTIARY FACT WHICH CREATES A REBUTTABLE PRESUMPTION. --Results of a chemical test showing that blood alcohol concentration was .10 percent or more creates a rebuttable presumption that the measurement accurately reflects the blood alcohol concentration at the time of driving. Nelson v. Commonwealth, 16 Va. App. 266, 430 S.E.2d 553 (1993). Davis v. Commonwealth, 219 Va. 808, 252 S.E.2d 299 (1979); Sargent v. Commonwealth, S Va. App. 143, 360 S.E.2d 895 (1987); Rosenbaum v. Commonwealth, 12 Va. App. 61, 402 S.E.2d 498 (1991); Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991); Nash v. Commonwealth, 12 Va. App. 550, 404 S.E.2d 743 (1991); Sos v. Commonwealth, i4 Va. App. 862, 419 S.E.2d 426 (1992); Hall v. Commonwealth, No. 1280-98-4 (Ct. of Appeals Sept. 28, 1999); Pennington v. Town of Front Royal, No. 0559-99-4 (Ct. of Appeals Feb, 29, 2000); Wallace v. Commonwealth, 32 Va. App. 497, 528 S.E.2d 739 (2000). II. ILLUSTRATIVE CASES ADMISSION OF REFUSAL TO PERFORM TEST DID NOT VIOLATE CONSTITUTIONS. --Neither the Fifth Amendment nor Va. Const., Art. I, § 8 were violated by the admission in evidence of defendant's refusal to take a field sobriety test. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991). CHECKPOINT CONSTITUTIONALITY. --Field officer's control over the timing of a checkpoint did not constitute unbridled discretion sufficent to render the checkpoint unconstitutional; although the field officer was allowed to designate the timing of the traffic checking detail, he had no discretion to decide the location of the assigned roadblock, and he was required to obtain approval from a supervisor before he began stopping vehicles. Crouch v. Commonwealth, 26 Va. App. 214, 494 S.E.2d 144 (1997}. Field officer's limited authority to determine the specific time of a sobriety checkpoint roadblock during a particular workweek did not constitute unbridled discretion sufficient to render the checkpoint unconstitutional. Crouch v. Commonwealth, 26 Va. App. 214, 494 S.E.2d 144 (1997). bOCTOR'S TESTIMONY WAS NOT SUFFICIENT TO REBUT PRESUMPTION. --Doctor's testimony that it was just as likely that appellant's blood alcohol concentration at the time of driving exceeded 0.17 as it was that his blood alcohol concentration was below 0.17 percent, and that his feeling was that appellant's blood alcohol concentration was below a .10 but that his stronger feeling was that he did not think anybody can say what it was, was not sufficient to rebut the presumption that appellant's blood alcohol concentration at the time of the breathalyzer test was the same as it was at the time of the offense, one hour and 28 minutes earlier. Kehl v. Commonwealth, 15 Va. App. b02, 426 S.E.2d 127 (1993). WAIVER OF RIGHT TO SEPARATE SAMPLE WHERE ACCUSED VOLUNTARILY INTERRUPTS PROCEDURE. --The government's failure to comply strictly with the statutory mandate to provide the accused with a sample of blood for independent testing resulted from the voluntary act of the accused in interrupting the completion of the blood removal process; where an accused voluntarily interrupts the blood removal procedure before the physician, nurse or technician completes that procedure, the accused, by his conduct, shall be deemed to have waived his right to an independent analysis of a separate sample as provided by §§ 18.2-268.6 and 18.2-268.7. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). WHERE DEFENDANT DISRUPTED BLOOD REMOVAL PROCEDURE, NO ERROR IN ADMITTING ONE SAMPLE. --Defendant's voluntary act in disrupting the blood removal procedure .../retrieve? m=a95c6507tb4d53ae91efc45d24ba53c3&docnum=2& frntstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 10 of 15 constituted a waiver of his right to a separate sample for independent testing. Thus, it was not error for the trial court to admit the results of the blood test analyzed from the one sample sent to the state laboratory by the arresting officer. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). BREATH TEST CERTIFICATE WAS IRRELEVANT TO PROVE DRIVING AND WAS IMPROPERLY ADMITTED. --Where the statement of facts stated that appellant was drinking "during the stop," because the evidence did not exclude the reasonable hypothesis that appellant was drinking after the driving and operation of the vehicle, the breath certificate was irrelevant to prove appellant's driving or operating the car and should not have been admitted. Foster v. Commonwealth, No. 1593-91-2 (Ct. of Appeals March 16, 1993). CERTIFICATE INADMISSIBLE WHERE ARREST NOT TIMELY MADE. --Where there is no evidence that defendant was arrested within two hours of the alleged offense, the certificate showing the alcohol content of defendant's blood is inadmissible. Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984). MULTIPLE CONVICTIONS ARISING OUT OF SAME ACT NOT BARRED. --Section 19.2-294 does not bar multiple convictions arising out of the same act if they are prosecuted simultaneously. Thus where warrants for involuntary manslaughter and driving while under the influence of alcohol were issued at the same time, although the charges were heard at different times in different courts, because the charges were initiated simultaneously, the proceedings were concurrent, not successive, and thus, both convictions were permitted under § 19.2-294. Doss v. Commonwealth, No. 2003-93-3 (Ct. of Appeals May 9, 1995). PERSON ACQUITTED UNDER SECTION COULD BE PROSECUTED FOR INVOLUNTARY MANSLAUGHTER. --The doctrine of collateral estoppel may not bar the prosecution for involuntary manslaughter of a person previously acquitted of driving under the influence of intoxicants, since the issue of intoxication is not necessarily dispositive of the crime of involuntary manslaughter. Simon v. Commonwealth, 220 Va. 412, 258 S.E.2d 567 (1979). BUT EVIDENCE OF INTOXICATION WOULD BE BARRED. --Although the defendant could be tried for involuntary manslaughter, even though he previously had been acquitted of driving under the influence of intoxicants based upon failure of the Commonwealth to prove legal intoxieation, since the issue of intoxication is not necessarily dispositive of the crime of involuntary manslaughter, the Commonwealth should have been barred, under the doctrine of collateral estoppel, from introducing in the manslaughter trial evidence to show that the defendant was intoxicated while operating the motor vehicle. Simon v. Commonwealth, 220 Va. 412, 258 S.E.2d 567 (1979). THOUGH CONSUMPTION OF ALCOHOL COULD BE SHOWN. --If the Commonwealth elected to try a defendant who previously had been acquitted of the offense under this section for involuntary manslaughter, the Commonwealth would not be estopped from introducing evidence to show that the defendant consumed alcohol shortly before the accident in question, since the quantity of alcohol consumed by an automobile driver, even though not enough to cause legal intoxication, may be sufficient to impair his capacity to perceive the dangers with the clarity, make decisions with the prudence, and operate the vehicle with the skill and caution required by law. Simon v. Commonwealth, 220 Va. 412, 258 S.E.2d 567 (1979), REVERSAL OF SUBSEQUENT CONVICTION NECESSITATED. --Where defendant was charged and convicted of both § 19.2-294.1 offenses, driving under the influence (DUI) and reckless driving, and the evidence was undisputed that the alleged misconduct was intimately related in time and distance, arising from and connected by one continuous, uninterrupted operation of defendant's motor vehicle, under such circumstances, the legislature clearly intended that a conviction of one offense result in a dismissal of the other. Accordingly, defendant's subsequent conviction for DUI should have been reversed. Harris v. City of Va. Beach, 19 Va. /retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 ,~ Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 11 of 15 App. 214, 450 S.E.2d 401 (1994). CONVICTIONS DID NOT VIOLATE DOUBLE JEOPARDY CLAUSE. --Convictions for driving under the influence, this section, and driving after having been declared an habitual offender, § 46.2-357, did not violate the double jeopardy clause because the charges at issue required proof of a fact the other did not. Dowless v. Commonwealth, No. 0687-91-1 (Ct. of Appeals Feb. 2, 1993). DETERMINATION OF WHETHER FOREIGN STATE LAW "SUBSTANTIALLY CONFORMS" TO VIRGINIA LAW. --In determining whether North Carolina DUI law under which appellant was twice convicted "substantially conforms" to Virginia's DUI law, courts look to the elements of the two statutes rather than to the offender's conduct; mere fact that both provisions are loosely referred to as per se statutes is insufficient to show substantial conformity in using out of state convictions for habitual offender adjudication in Virginia. Commonwealth v. Ayers, 17 Va. App. 401, 437 S.E.2d 580 (1993). PERMISSIBLE USE OF OUT-OF-STATE PREDICATE CONVICTION. --Notwithstanding the fact that there are substantial differences between West Virginia Code § 17C-5-2 and this section, because the prohibition of West Virginia law under which appellant was convicted substantially conformed to this section, it could be used as a predicate offense for appellant's adjudication as an habitual offender pursuant to § 46.2-351 et seq. Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995). Trial judge could have concluded that the conviction in West Virginia was based on conduct which is also a violation of this section, and thus to consider it under § 46.2-351 would not expand the scope of the convictions which could be considered in making his ruling. Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995). Under the Driver License Compact, which has been codified in identical form in Virginia and Maryland, any conviction reported from Maryland to the Virginia Department of Motor Vehicles must, of necessity, be limited to motor vehicle use while intoxicated and, therefore, the Maryland statutes governing the offense of driving while intoxicated substantially conform to Virginia law and a defendant's conviction in Maryland may be considered as a predicate offense for purposes of Virginia's habitual offender law. Commonwealth v. Lowe, 31 Va. App. 806, 525 S.E.2d 636 (2000). RECORD INDICATING CONVICTIONS FOR DRUNK DRIVING SATISFIED REQUIREMENTS OF HABITUAL OFFENDER STATUTE. --Where the defendant claimed that the record indicating "drunk driving" was insufficient to satisfy the requirement of § 46.2-351 in that it failed to establish that the conviction was for a violation of this section or a local ordinance conforming to the provision of this section, the DMV record and abstract of conviction showing the defendant had been convicted of "drunk driving" or "driving while intoxicated" satisfied the requirement of § 46.2-351. Danielson v. Commonwealth, No. 0951-89-2 (Ct. of Appeals Dec. 26, 1990). FOR A DISCUSSION OF THE APPLICABILITY OF MIRANDA WARNINGS TO MOTOR VEHICLE OFFENSES, see Clay v. Riddle, 541 F.2d 456 (4th Cir. 1976). See also Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). WARRANT INVALID WHERE BASED ON COUNTY CODE PROVISION CONTAINING OBSOLETE STATUTORY REFERENCE. --Driving under the influence of alcohol was not an offense at common law. It exists solely as a creature of statute. Therefore, a warrant stating that the defendant did unlawfully in violation of the county code operate a motor vehicle while under the influence of alcohol or other self-administered drug or intoxicants had no effect, where it cited a county code provision which was invalid because it referred to former § 18.1-54 et seq., rather than the current driving under the influence law, § 18.2-266 et seq. This was not altered by the fact that the wording on the warrant described a violation of § 18.2-266 et seq., since defendant 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 /retrieve? m=a95c6507fb4d53ae91efc45d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 12 of 15 where a defendant has not been so charged. Mitchell v. County of Hanover, 1 Va. App. 486, 340 S.E.2d 173 (1986). BREATH TEST PROPERLY PERFORMED ALTHOUGH CLERICAL MISTAKE IN CERTIFICATE. -- While the certificate of blood alcohol analysis indicated an alcohol content of ".10% grams per 210 liters of breath," deputy testified that he mistakenly included the percent sign on the certificate, that it was a clerical mistake, and that appellant's true "reading from the machine was .10" grams per 210 liters of breath. The evidence established that deputy properly performed the breath test, and the actual result comported with the statutory requirements. Murray v. Commonwealth, No. 2142-96-4 (Ct. of Appeals Nov. 4, 1997). ABSENCE OF EVIDENCE ESTABLISHING WHEN BREATH TEST WAS ADMINISTERED went to the weight of the evidence and was a factor, as was other evidence, for jury to consider. Killingsworth v. Commonwealth, No. 2447-98-3 (Ct. of Appeals Nov. 9, 1999). QUESTION FOR JURY. --In a prosecution for operating a motor vehicle while under the influence of intoxicants, there was evidence for the State that the defendant was intoxicated. The evidence given by the defendant and his witnesses was to the effect that he was not intoxicated. The resulting conflict in the evidence was for the jury to settle. Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257 (1955). IMPROPER JURY INSTRUCTION. --Jury instruction, that evidence was present of the amount of alcohol in blood of defendant at time of the accident, was factually incorrect and contrary to unrefuted, expert testimony that the test measures the amount of alcohol in the blood at the time of the test; thus, reversible error occurred. Taylor v. Commonwealth, 12 Va. App. 419, 404 S.E.2d 78 (1991). CONFUSING INSTRUCTION PROPERLY REFUSED. --It was not error to refuse an instruction that defendant might be thought guilty of reckless driving yet not be guilty of driving while drunk. This would have been confusing to the jury, directing their attention to an offense with which defendant was not charged. Mawyer v. Commonwealth, 203 Va. 898, 128 S.E.2d 433 (1962). NO ERROR IN DENYING MOTION FOR MISTRIAL BASED ON ATTORNEY'S STATEMENTS. --Trial court did not err in denying defendant's motion for a mistrial based on improper statements made by the Commonwealth's attorhey. The factual basis for the argument arose when the Commonwealth's attorney referred to defendant as an "alcoholic" during the cross- examination of one of defendant's witnesses and referred to defendant's "ability to throw back quite a few [alcoholic drinks] at a time" during the cross-examination of another defense witness. These statements were clearly improper. However, it is just as clear that the trial court sustained defendant's objections, gave no consideration to the objectionable statements, and "[tried] the case just on the evidence that [came] before [it] and nothing else." Accordingly, no prejudice resulted. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). EVIDENCE WAS SUFFICIENT TO PROVE THAT DEFENDANT WAS INTOXICATED AT THE TIME OF THE ACCIDENT, although the officer did not conclude that defendant was intoxicated until some 55 to 85 minutes after the accident had occurred, where defendant told officer that he had consumed six to eight beers that day and he stated that he had not had anything alcoholic to drink since the accident. Wheeling v. City of Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986). Where defendant told the arresting officer, at the time of his arrest, that he had consumed six to eight beers that day and stated that he had not had anything alcoholic to drink since the accident, but at trial he testified that he drank a half pint of whiskey following the accident and further testified that he did not remember telling the arresting officer that he had not had anything alcoholic to drink since the accident, the jury was entitled to assess the credibility of these conflicting statements and testimony in arriving at its verdict. Wheeling v. .../retrieve? m=a95c65071b4d53ae91efc45d24ba53c3&docnum=2& fintstc=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 13 of 15 City of Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986). CIRCUMSTANCES SUFFICIENT TO SHOW THAT DRUNKEN DRIVER WAS "OPERATING" HIS TRUCK. --Evidence was sufficient to prove that defendant convicted of second offense of driving motor vehicle while under the influence of alcohol was "operating" his truck when approached by police officer: truck's engine was running and its headlights and taillights were illuminated; defendant, though standing on the road, was bending his body into the interior space of the truck; and defendant admitted that he had just left his house to ride around the block and was going straight home. Leake v. Commonwealth, 27 Va. App. 101, 497 S.E.2d 522 (1998). EVIDENCE SUFFICIENT TO PROVE DEFENDANT "OPERATED" VEHICLE. --The evidence was sufficient to prove that the defendant was "operating" the vehicle where the police officer who was dispatched to the scene of an accident found the defendant alone in the vehicle with his legs pinned under the steering wheel and dashboard, the defendant was conscious but was unable to move because he was trapped inside the car, and the car was in gear and the key was in the ignition. Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473 (2000). The evidence, although circumstantial, was sufficient to prove that the defendant was the driver of the car where, immediately after a witness heard the squealing of the tires and a loud boom, she observed the defendant lying on the ground on the driver's side of the car and the other occupant climb from the front passenger side of the vehicle and exit from the driver's side door, when a second witness arrived at the scene he observed the defendant sitting in the driver's seat with his legs out the side door, the defendant sustained injuries to the left side of his body, which were consistent with the damage to only the driver's side of the car, while the other occupant did not sustain any injuries and, finally, the vehicle was registered in the name of the defendant's father. McCain v. Commonwealth, No. 1789-99-3 (Ct. of Appeals May 9, 2000). REPEATED WEAVING WITHIN LANE CREATED REASONABLE SUSPICION. --Officer who had experience with intoxicated drivers had a reasonable and articulable suspicion to stop defendant's vehicle and investigate further, where the officer observed defendant's vehicle for 25 seconds weaving repeatedly within its lane between five and ten times over a distance of one-half mile. Neal v. Commonwealth, 27 Va. App. 233, 498 S.E.2d 422 (1998). THE EVIDENCE WAS SUFFICIENT TO SUPPORT DEFENDANT'S CONVICTION of driving under influence of intoxicants where defendant admitted having had two drinks, drove his car onto the shoulder of the road and again into the center lane, veered across the road when the trooper signalled him to stop then back again into a telephone pole, was unsteady on his feet when arrested and proposed to the officer that the charge be fixed. Doughty v. Commonwealth, 204 Va. 240, 129 S.E.2d 664 (1963). Conviction was supported by the evidence where it was proved defendant drove his vehicle into the rear of a bus stopped for a red light, gave no explanation for the occurrence, denied he was driving his vehicle and made conflicting statements as to who was driving, had a strong odor of alcohol on his breath, and could not satisfactorily complete certain coordination tests administered by police at the scene. Holt v. City of Richmond, 204 Va. 364, 131 S.E.2d 394 (1963), cert. denied, 376 U.S. 917, 84 S. Ct. 672, 11 L. Ed. 2d 613 (1964). Evidence of defendant's consumption of alcohol prior to operating his car, the manner in which he operated his car, his inability to recite accurately the alphabet, and his conduct during the testing procedure all combined to establish beyond a reasonable doubt his guilt. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992). Where defendant, the sole occupant of the locked vehicle stopped in the middle of the road, was asleep, slumped across the front seat with his head on the passenger side and his lower torso in the seat behind the steering wheel and although the motor was not running and the vehicle's lights were off, the key was in the ignition, turned to the on position, and the transmission mechanism was. in drive, the evidence was sufficient to prove that defendant operated a motor vehicle while under the influence of alcohol. Rivers v. Commonwealth, No. 1222-92-1 (Ct. of Appeals May 24, 1994). .../retrieve? m=a95c6507fb4d53ae91efcA5d24ba53c3&docnum=2& fintstr=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 14 of 15 A defendant's admission that he consumed several alcoholic beverages, together with the testimony of the arresting officer regarding the defendant's appearance and lack of coordination, was sufficient to support a conviction for driving under the influence of alcohol Lemond v. Commonwealth, 19 Va. App. 687, 454 S.E.2d 31 (1995). Evidence was sufficient to prove beyond a reasonable doubt that defendant was intoxicated where he stopped his vehicle in the travel lane of a public road in the middle of the night and got out to clean it; staggered as he walked; had an odor of alcohol about him; slurred his speech; failed a sobriety test; and admitted earlier alcohol consumption. Leake v. Commonwealth, 27 Va. App. 101, 497 S.E.2d 522 (1998). EVIDENCE HELD INSUFFICIENT TO SUPPORT CONVICTION of driving under the influence of intoxicants. Fowlkes v. Commonwealth, 194 Va. 676, 74 S.E.2d 683 (1953). Evidence establishing that defendant was intoxicated fifty-five minutes after being involved in an accident was not sufficient to support a jury finding that he was intoxicated at the time of the accident. Coffey v. Commonwealth, 202 Va. 185, 116 S.E.2d 257 (1960). The manner in which the accident occurred, the appearance and behavior of defendant, and his bizarre conduct generally, constituted sufficient evidence to engender a probability of guilt. However, the evidence failed to establish that the drinking of alcohol or the self- administering of drugs caused this conduct, and, in its absence, the court of appeals was unable to conclude that beyond a reasonable doubt defendant operated his automobile under the influence of alcohol or some self-administered drug. Clemmer v. Commonwealth, 208 Va. 661, 159 S.E.2d 664 (1968). The evidence was not such that one could infer from it a tacit admission by defendant that he had been drinking, or was under the influence of alcohol. Clemmer v. Commonwealth, 208 Va. 661, 159 S,E.2d 664 (1968). STATE COURT CRIMINAL DUI PROCEEDINGS BARRED A HEARING IN FEDERAL DISTRICT COURT of claims against officer for violation of petitioner's fourth, fifth, and fourteenth amendment rights during the course of his arrest and for violation of 42 U.S.C. § 1983 for alleged unconstitutional application of state statutory scheme for DUI offenses. Grochowski v. Virginia, 741 F. Supp. 1230 (W.D. Va. 1990), aff'd sub nom. Grochowski v. Dewitt-Rickards, 928 F.2d 399 (4th Cir.), cert. denied, 502 U.S. 859, 112 S. Ct. 176, 116 L. Ed. 2d 139 (1991). PROSECUTION IN FEDERAL COURT FOR DRIVING WHILE INTOXICATED ON FEDERAL LAND. -- The Assimilative Crimes Act of 1948, 18 U.S.C.A. § 13, makes applicable to a prosecution in a federal court for driving while intoxicated on a federal parkway within the territorial limits of Virginia the Virginia statute which prohibits one from driving an automobile while under the influence of alcohol and the Virginia statute (§ 18.2-270) which prescribes penalties for the offense. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958), commented on in 16 Wash. & Lee L. Rev. 62 (1959). In a prosecution under the Assimilative Crimes Act for drunken driving on a military post in Virginia, the magistrate need not consider both the Virginia statutes, this section and former § 18.2-268 (now § 18.2-268.1 et seq.) together, but may consider this section as a separate offense and disregard any evidence as to blood tests with respect to a drunken driving charge. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970). SPECIAL ASSESSMENT INAPPLICABLE TO OFFENSE COMMITTED ON FEDERAL ENCLAVE, --As drunken driving offenses are excepted from Virginia's "additional cost" provision in § 19.2- 368.18, no punishment exists instate law similar to the federal assessments in the Assimilative Crimes Act, 18 U.S.C. § 13, and for that reason the special assessment cannot apply to drunken driving offenses committed in Virginia on a federal enclave. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986). APPLICABILITY TO pRIVING ON PRIVATE ROADS. --In Valentine v. County of Brunswick, 202 Va. 696, 119 S.E.2d 486 (1961), it was held that a county ordinance similar to this section applied to driving oh private roads as well as public highways. .../retrieve? m=a95c6507tb4d53ae91efc45d24ba53c3&docnum=2& fintstc=FULL& startdoc=6/4/2001 Search - 100 Results - 18.2-266, under the influence, to a degree which impairs his ability.. Page 15 of 15 FACT THAT DEFENDANT OPERATED VEHICLE WHILE TRYING TO EXTRICATE IT FROM A DITCH, qff the traveled portion of the public highway, was of no importance. Reynolds v. City of Va. Beach, 31 Va. App. 629, 525 S.E.2d 65 (2000). DEFENDANT DID NOT DRIVE OR OPERATE CAR SINCE KEY IN IGNITION DID NOT ENGAGE CAR. --Because the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the car, the defendant did not "drive or operate" the car within the meaning of the statutes that were incorporated by reference in a city ordihance. Stevenson v. City of Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992). Source; All Sources :States Legal - U.S.: Virginia :Statutes & Legislative Materials : VA -Virginia Code Annotated, Constitution, Court Rules and ALS TOC; Code of Virginia : / ... / :ARTICLE 2. DRIVING MOTOR VEHICLE, ETC., WHILE INTOXICATED : § 18.2- 266. Driving motor vehicle, engine, etc., while intoxicated, etc Terms; 18.2-268, under the influence, to a degree which impairs his ability to drive (Edit Search) View; Full Date/Time; Monday, June 4, 2001 - 3:39 PM EDT About LEXIS-NEXIS I Terms and Conditions Copyright ©2001 LEXIS-NEXIS Group. All rights reserved. ../retrieve? m=a95c65071b4d53ae91efc45d24ba53c3&docnum=2& fintstt=FULL& startdoc=6/4/2001 Search - 2 Results - 46.2-483 Page 1 of 6 Source: All Sources :States Legal - U.S.: Virginia :Statutes & Legislative Materials : VA -Virginia Code Annotated, Constitution, Court Rules and ALS TOC: Code of Virginia :1...1: ARTICLE 18. DRIVER LICENSE COMPACT : §46.2-483. Compact enacted into law; terms Terms: 46.2.483 (Edit Search) Va. Code Ann. § 46.2-483 CODE OF VIRGINIA Copyright (c) 1999-2001 by Matthew Bender & Company, Inc. one of the LEXIS Publishing companies. All rights reserved. *** STATUTES CURRENT THROUGH 2000 LEGISLATIVE SESSION *** *** (ANNOTATIONS CURRENT THROUGH JANUARY 2, 2001) *** TITLE 46.2. MOTOR VEHICLES SUBTITLE II. TITLING, REGISTRATION AND LICENSURE CHAPTER 3. LICENSURE OF DRIVERS ARTICLE 18. DRIVER LICENSE COMPACT + GO TO CODE ARCHIVE D3RE6ZORY FOR THYS 7URYSDICTION Va. Code Ann. § 46. ~~~~D/~ ~~`~ § 46.2-483. Compact enacted into law; terms The r m act is hereby enacted ~ and entered into with all other jurisdictions legally joinin m e form substantially as follows: THE DRIVER LICENSE COMPACT Article I Findings and Declaration of Policy (a) The party states find that: (1) The safety of their streets and highways is materially affected by the degree of compliance with state and local ordinances relating to the operation of motor vehicles. (2) Violation of such a law or ordinance is evidence that the violator engages in conduct which is likely to endanger the safety of persons and property. (3) The continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated. .../retrieve? m=3476a1d75291d2b1c6e07c4e95e4f$71&docnum=l& fintstr=FULL& startdoc=6/4/2001 Search - 2 Results - 46.2-483 Page 2 of 6 (b) It is the policy of each of the party states to: (1) Promote compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles by their operators in each of the jurisdictions where such operators drive motor vehicles. (2) Make the reciprocal recognition of licenses to drive and eligibility therefor more just and equitable by considering the overall compliance with motor vehicle laws, ordinances and administrative rules and regulations as a condition precedent to the continuance or issuance of any license by reason of which the licensee is authorized or permitted to operate a motor vehicle in any of the party states. Article II Definitions As used in this compact: (a) "State" means a state, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico. (b) "Home state" means the state which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle. (c) "Conviction" means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond, or other security deposited to secure appearance by a person charged with having committed any such offense, and which conviction or forfeiture is required to be reported to the licensing authority. Article III Reports of Conviction The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or the conviction was a result of the forfeiture of bail, bond or other security; and shall include any special findings made in connection therewith. ../retrieve? m=3476a1d75291d2b1c6e07c4e95e41871&docnum=l& fintstr=FULL& startdoc 6/4/2001 Search - 2 Results - 46.2-483 Page 3 of 6 Article IV Effect of Conviction (a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state, in the case of convictions for: (1) Manslaughter or negligent homicide resulting from the operation of a motor vehicle; (2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle; (3) Any felony in the commission of which a motor vehicle is used; (4) Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another. (b) As to other convictions, reported pursuant to Article III, the licensing authority in the home state shall give such effect to the conduct as is provided by the laws of the home state. (c) If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subdivision (a) of this article, such party state shall construe the denominations and descriptions appearing in subdivision (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this article. Article V Applications for New Licenses Upon application for a license to drive, the licensing authority in a party state shall ascertain whether the applicant has ever held, or is the holder of a license to drive issued by any other party state. The licensing authority in the state where application is made shall not issue a license to drive to the applicant if: (1) The applicant has held such a license, but the same has been suspended by reason, in whole or in part, of a violation and if such suspension period has not terminated. (2) The applicant has held such a license, but the same has been revoked by reason, in whole or in part, of a violation and if such revocation has not terminated, except that after the expiration of one year from the date the license was revoked, such person may make application for a new license if permitted by law. The licensing authority may refuse to issue .../retrieve? m=3476a1d75291d2b1c6e07c4e95e4f$71&docnum=l& fmtstc=FULL& startdoc 6/4/2001 Search - 2 Results - 46.2-483 Page 4 of 6 a license to any such applicant if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways. (3) The applicant is the holder of a license to drive issued by another party state and currently in force unless the applicant surrenders such license. Article VI Applicability of Other Laws Except as expressly required by provisions of this compact, nothing contained herein shall be construed to affect the right of any party state to apply any of its other laws relating to licenses to drive to any person or circumstance, nor to invalidate or prevent any driver license agreement or other cooperative arrangement between a party state and a nonparty state. Article VII Compact Administrator and Interchange of Information (a) The head of the licensing authority of each party state shall be the administrator of this compact for his state. The administrators, acting jointly, shall have the power to formulate all necessary and proper procedures for the exchange of information under this compact. (b) The administrator of each party state shall furnish to the administrator of each other party state any information or documents reasonably necessary to facilitate the administration of this compact. Article VIII Entry Into Force and Withdrawal (a) This compact shall enter into force and become effective as to any state when it has enacted the same into law. (b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until six months after the executive head of the withdrawing state has given notice of the withdrawal to the executive heads of all other .../retrieve? m=3476a1d75291d2b1c6e07c4e95e41871&docnum=l& frntstr=FULL& startdoc 6/4/2001 Search - 2 Results - 46.2-483 Page 5 of 6 party states. No withdrawal shall affect the validity or applicability by the licensing authorities of states remaining party to the compact of any report of conviction occurring prior to the withdrawal. Article IX Construction and Severability This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. HIST®RY: 1968, c. 166, § 46.1-167.8; 1989, c. 727. NOTES APPLICABLE TO ENTIRE TITLE EDITOR'S NOTE. --House Joint Resolution No. 271, approved by the General Assembly in 1987, requested the Virginia Code Commission to undertake a revision of Title 46.1. The Commission's report was published as House Document No. 42 of the 1989 Session and served as the basis for Title 46.2, which was enacted by Acts 1989, c. 727, effective Oct. 1, 1989. Acts 1989, c. 727, cl. 2, provides that whenever any of the conditions, requirements, provisions, or contents of any section, article, or chapter of Title 46.1 or any other title of this Code as such titles existed prior to Oct. 1, 1989, are transferred in the same or modified form to a new section, article, or chapter of this title or any other title of this Code and whenever any such former section, article, or chapter is given a new number in this or any other title, all references to any such former section, article, or chapter of Title 46.1 or other title appearing in this Code shall be construed to apply to the new or renumbered section, article, or chapter containing such conditions, requirements, provisions, contents, or portions thereof. Acts 1989, c. 727, cl. 3, provides that the regulations of the Department of Motor Vehicles, the Department of State Police, the Department of Transportation, the Department of Air Pollution Control, the State Corporation Commission, and any other Department, agency, or instrumentality of the Commonwealth and any ordinance adopted by any political subdivision of the Commonwealth in effect on the effective date of the act (Oct. 1, 1989) shall continue in effect to the extent that they are not in conflict with the act and shall be deemed to be regulations promulgated or ordinances adopted under the act. Acts 1989, c. 727, cl. 4, provides that the recodification of Title 46.1 as Title 46.2 shall not be construed to require the reappointment of any officer or any member of a board, council, committee, or other appointed body referred to in Title 46.2, and each such officer and member shall continue to serve the term for which appointed pursuant to the provisions of Title 46.1. Acts 1989, c. 727, cl. 5, provides that the act shall be deemed to have been enacted prior to any other act enacted in the 1989 Regular Session of the General Assembly, and any act purported to amend and reenact any law contained in Title 46.1 or Title 46.2 is deemed to be .../retrieve? m=3476a1d75291d2b1c6e07c4e95e4f$71&docnum=l& fintstr-FULL& startdoc 6/4/2001 Search - 2 Results - 46.2-483 added to, amendatory of, or a repealer of, as the case may be, any corresponding law Page 6 of 6 contained in the act. However, effect shall be given to such other or subsequent act only to the extent of any apparent changes in the law as it existed prior to-the commencement of such session. Many of the cases cited in the notes under provisions of Title 46.2 were decided under former Title 46.1 or prior law. EFFECTIVE DATE. --Acts 1989, c. 727, cl. 7 made this title effective Oct. 1, 1989. Source: All Sources :States Legal - U.S.: Virginia :Statutes & Legislative Materials : VA -Virginia Code Annotated, Constitution, Court Rules and ALS TOC: Code of Virginia : / ... / :ARTICLE 18. DRIVER LICENSE COMPACT : §46.2-483. Compact enacted into law; terms Terms: 46.2-483 (Edit Search) View: Full Date/Time: Monday, June 4, 2001 - 11:27 AM EDT About LEXIS-NEXIS ~ Terms and Conditions Copyright ©2001 LEXIS-NEXIS Group. All dghts reserved. .../retrieve? m=3476a1d75291d2b1c6e07c4e95e4f871&docnum=l& fintstt=FULL& startdoc 6/4/2001 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING APPELLEE VI. BY THE COURT: JOHN MICHAEL SPANG APPELLANT IIV THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-352 CPJLL ORDER OF COURT AND NOW, this~~ay of March, 2001, upon consideration of the within Motion to Continue, the Motion is hereby GRANTED/DENIED. BE IT FURT(H~ ER ORDERED that a hearing ni the above-captioned matter is rescheduled to the ~~ day of I~~, 2001, at ~ /~ A PM, in Courtroom Number One, Cumberland County Courthouse, Carlisle, Pennsylvania. John A. Abom, Esquire, ~ ~~ esley Olex, Judge ®\ \~ p,~,6R~ George Kabusk, Esquire Office of Chief Counsel, Pennsylvania Department of Transportation 1101 S. Front Street, Third Floor Hamsbutg, PA 17104 ~,i~ ~, COMMONWEt1LTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Bi.JRF.AU OF DRIVER LICENSING APPELLEE V. JOHN MICHAEL SPANG APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-352 CIVIi. MOTION TO CONTINUE AND NOW, comes John A. Abom, Esquire, on behalf of the Appellant, John Michael Spang, who respectfully requests this Honorable Court to continue the hearing previously scheduled in the above-captioned matter and in support thereof avers the following: 1. On ox about December 26, 2000, the Pennsylvania Department of Transportation notified the appellant of its intention to suspend his driving privileges fox a period of one year after the Department allegedly received information concerning the appellant from the Commonwealth of Virginia. Said license suspension was to commence on January 30, 2001. 2. On or about January 18, 2001, the Appellant, acting Pxo Se, filed a timely Notice of Appeal of his impending Pennsylvania driver's license suspension. 3. On January 21, 2001, this Honorable Court issued an Oxdex setting a hearing fox Apri12, 2001. This Court further directed the appellant to file a supplement to his Notice of Appeal within 20 days of the date of the Oxdex specifying in what respect the suspension appealed from was improper. 4. To date, no supplement has been filed by or on behalf of the appellant. 5. On March 26, 2001, appellant retained your petitioner to represent him in the above- captioned matter. • r 6. Petitioner requires additional time to research recent legislative enactments and case iaw regarding the Interstate Drivers License Compact and other possible issues to be addressed at a future hearing. 7. Petitioner spoke to George Kabusk, Esquire, Assistant Counsel fox the Pennsylvania Department of Transportation who indicated that appellee does not oppose this request fox a continuance. WHEREFORE, your petitioner respectfully requests this Honorable Court to grant a continuance of the hearing scheduled fox Apri12, 2001, to a future date convenient to the Court. Respectfully submitted, ABOM & Date: March 28, 2001 ` ~~in A. Abom °~ Attorney fox the Appellant Attorney LD.# 77961 COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF DEPARTMENT OF TRANSPORTATION, COMMON PLEAS OF BUREAU OF DRIVER LICENSING CUMBERLAND COUNTY, APPELLEE PENNSYLVANIA VII. No. 01-352 CIVIL JOHN MICHAEL SPANG APPELLt1NT CERTIFICATE OF SERVICE I, John A. Abom, Esquire, hereby certify that this day I served a copy to the attached Motion to Continue and Pxaecipe to Enter Appearance by mailing said motion via U.S. first class mail, addressed as follows: George Kabusk, Esquire Office of Chief Counsel, Pennsylvania Department of Transportation 1101 S. Front Street, Third Floor Harrisburg, PA 17104 Date• / ~ ~ ~l ~iiftomey fox the Appellant Attorney I.D.# 77961 8 South Hanover Street Suite 204 Carlisle, PA 17013 (717) 249-0900 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING APPELLEE VIII. JOHN MICHAEL SPANG APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-352 CPJIL PRAECIPE FOR ENTRY OF APPEARANCE Please enter my appearance as counsel of record for the Appellant, John M. Spang, in the above-captioned matter. Date: ~ / a ~j f p 1 Respectfully submitted, ABOM & KUTULA%IS Alfom, Esquire orney I.D. No. 77961 Suite 204 8 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney fox Appellant d COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF DEPARTMENT OF TRANSPORTATION, COMMON PLEAS OF BUREAU OF DRIVER LICENSING CUMBERLAND COUNTY, APPELLEE PENNSYLVANIA VII. No. 01-352 CIVIL JOHN MICHAEL SPANG APPELLANT CERTIFICATE OF SERVICE I, John A. Abom, Esquire, hereby certify that this day I served a copy to the attached Motion to Continue and Pxaecipe to Enter Appearance by mailing said motion via U.S. first class mail, addressed as follows: George Kabusk, Esquire Office of Chief Counsel, Pennsylvania Department of Transportation 1101 S. Front Street, Third Floor Hamsbuxg, PA 17104 Date: John A. Abom Attorney fox the Appellant Attorney I.D.# 77961 8 South Hanover Street Suite 204 Carlisle, PA 17013 (717) 249-0900 c' m. ':' _ ~~ !; __ z ~: ;~~ U,4, <:~ -< <: ~"' C -- ~ ' . 4 . ~ ' ~ ~Y±~ G~ ~ -__ . ~} COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN MICHAEL SPANG, Appellant No. 01-352 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of June, 2001, upon consideration of the Appellant's appeal from license suspension in the above-captioned matter, and following a hearing held on this date, the appeal is denied, and the action of the Pennsylvania Department of Transportation, Bureau of Driver Licensing, in suspending Appellant's driving privilege for a period of one year, pursuant to a notioe dated December 26, 2000, is affirmed. By the Court, George Kabusk, Esquire ~ _ J. esley Oler Jr., J For the Appellee John A. Abom, Esquire / For the Appellant ~-13•~ wcy 1 ~r.UVn~!~sr~N~~w ^ 6~ =6 ~~~,~ x. t ~oiif ItJ ;jJ ~. i~ ~~vr~ ~ ~~ ~~- :7~J,_..~ - I~