Dennis Vernon White v. Commonwealth of Virginia , 26 Va. App. 410 ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference
DENNIS VERNON WHITE
OPINION BY
v. Record No. 0656-97-3 JUDGE SAM W. COLEMAN III
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GILES COUNTY
Colin R. Gibb, Judge
Charles R. Beller, III (Beller & Spence,
P.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Code § 19.2-294.1 provides that "[w]henever any person is
charged with [driving under the influence of alcohol] . . . and
reckless driving growing out of the same act or acts and is
convicted of one of these charges, the court shall dismiss the
remaining charge." Dennis Vernon White was convicted in the
circuit court, following a de novo appeal, of driving while under
the influence of alcohol (DUI) in violation of Code § 18.2-266.
White had previously pled guilty in the general district court to
a speeding charge in violation of Code § 46.2-870 and Narrows
Town Ordinance § 155-3 for driving at a speed of sixty miles per
hour in a forty miles per hour zone. The speeding charge arose
from the same course of driving that gave rise to the DUI
conviction.
On appeal, White asserts that the DUI prosecution and
conviction were barred by the speeding conviction because, under
Code § 46.2-862, the speeding conviction constituted a conviction
for reckless driving. Code § 46.2-862 provides that "a person
shall be guilty of reckless driving who drives a motor vehicle
. . . (iii) at a speed of twenty miles per hour or more in excess
of . . . the applicable maximum speed limit[] [of] forty miles
per hour or more." Thus, White contends, the provisions of Code
§ 19.2-294.1 required the circuit court to dismiss the DUI charge
because he had already pled guilty and been convicted of an
offense that is by statute deemed reckless driving. We disagree
and affirm the DUI conviction.
"Where the language of a statute is clear and unambiguous,
we are bound by the plain statement of legislative intent."
Commonwealth v. Meadows, 17 Va. App. 624, 626, 440 S.E.2d 154,
155 (1994); see also Long v. Commonwealth, 7 Va. App. 503, 506,
375 S.E.2d 368, 369 (1988) ("If the language of a statute is
plain and unambiguous . . . , effect must be given to it
regardless of what courts think of its wisdom or policy."). We
must "take the words as written" in Code § 19.2-294.1 and give
them their plain meaning. Birdsong Peanut Co. v. Cowling, 8 Va.
App. 274, 277, 381 S.E.2d 24, 26 (1989).
Under the plain and unambiguous terms of Code § 19.2-294.1,
one may not be "charged" and "convicted" of both DUI and
"reckless driving." A conviction of either DUI or reckless
driving, whether in simultaneous or successive prosecutions,
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requires dismissal of the other charge if the other charge arose
from the same act or acts. Cf. Hall v. Commonwealth, 14 Va. App.
892, 900, 421 S.E.2d 455, 461 (1992) (en banc) (holding that
Virginia's double jeopardy statute, Code § 19.2-294, prohibits
multiple convictions for separate offenses arising out of same
act, except where convictions obtained in single prosecution).
However, reckless driving and speeding are separate and distinct
offenses.
Reckless driving is chargeable and punishable under the
provisions of Article 7 in the Motor Vehicle Code chapter on the
regulation of traffic. Reckless driving is a Class 1
misdemeanor, Code § 46.2-868, carrying with it the potential for
a twelve month jail sentence and a fine of not more than $2,500.
See Code § 18.2-1(a). Speeding, on the other hand, is
chargeable and punishable under the provisions of Article 8 of
the same chapter and is a traffic infraction punishable merely by
a fine. See Rule 3B:2. 1 Nothing in the language of Code
§ 19.2-294.1 precludes the Commonwealth or a locality from
convicting a person for both DUI and "speeding." If the
legislature had intended to foreclose a person from being
convicted for both DUI and another offense that might also
constitute reckless driving, as argued by appellant, it could
1
A conviction for reckless driving based on speeding also
carries with it the additional sanction that the trial judge may
suspend an operator's license for a period of not more than six
months. Code § 46.2-393.
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have expressed that intent in the language of Code § 19.2-294.1.
Under the express provisions of Code § 19.2-294.1, only a
"conviction" for reckless driving bars a prosecution for DUI; a
conviction for speeding, even if premised on an underlying act
that may have warranted a conviction for reckless driving, does
not implicate the bar of the statute.
Under appellant's proposed construction of the statute, a
person who drives between one and nineteen miles per hour over
the speed limit while intoxicated could be convicted of both
speeding and DUI, whereas the same intoxicated person driving
twenty miles per hour over the speed limit could only be
convicted of either reckless driving or DUI. Appellant would
have us construe Code § 19.2-294.1 in a way that would enable the
intoxicated driver who minimally exceeded the posted speed limit
to be punished more severely than the intoxicated driver who
drove at a more excessive rate of speed. We decline to construe
the statute in a way which would lead to such an anomalous
result. See Shull v. Commonwealth, 16 Va. App. 667, 670, 431
S.E.2d 924, 925 (1993) ("A statute should not be construed so
that it leads to absurd results."). We hold that the provisions
of Code § 19.2-294.1 do not bar the Commonwealth from convicting
a person for DUI after the person was convicted of speeding, even
where the charges arose out of the same course of driving and the
act of speeding could have given rise to a charge and conviction
for reckless driving under Code § 46.2-862.
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In the present case, appellant was charged and convicted for
"speeding" under a town ordinance incorporating Code § 46.2-870.
He was not "convicted" of reckless driving. Cf. Harris v. City
of Virginia Beach, 19 Va. App. 214, 217, 450 S.E.2d 401, 403
(1994) (defendant was charged and convicted of driving under the
influence and "reckless driving"). Although the Commonwealth
could have prosecuted appellant for reckless driving under
Article 7 provisions for that offense, it chose instead to
prosecute him on the offense of speeding under Article 8. See
Spickard v. City of Lynchburg, 174 Va. 502, 505, 6 S.E.2d 610,
611 (1940) ("The same facts may constitute two or more distinct
offenses, different in kind as well as in degree."); see also
Kaufmann v. Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279,
284 (1989) ("It is well established that the choice of offenses
for which a criminal defendant will be charged is within the
discretion of the [prosecutor]."). Accordingly, the Commonwealth
was not precluded from convicting appellant for both DUI and
speeding for driving sixty miles per hour in a forty miles per
hour zone. We affirm the DUI conviction.
Affirmed.
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