James Steven Patterson v. Commonwealth of Virginia, 0821161

On Aug. 31, 2013, Patterson was stopped in Virginia, showed signs of intoxication, and a breath test produced a .11 BAC; he was charged with DUI, third or subsequent offense under Va. Code §§ 18.2-266 and -270.
The Commonwealth sought to admit three prior DUI convictions for enhancement: one Virginia conviction (admitted without objection) and two California convictions (Exhibits 3 and 4).
Exhibit 3 was a California conviction under Cal. Veh. Code § 23152(b); Exhibit 4 purported to show a guilty plea under § 23152(a) but the trial court later struck Exhibit 4 for failing to prove an actual conviction.
Patterson objected to admission of the California conviction(s), arguing California’s use of the term “vehicle” (vs. Virginia’s “motor vehicle”) permits convictions for conduct that would not violate Va. law (e.g., moped on private property).
The trial court admitted Exhibit 3, finding the California statute substantially similar to Va. Code § 18.2-266; Patterson was convicted of DUI, third offense, and appealed.

Issue	Plaintiff's Argument (Patterson)	Defendant's Argument (Commonwealth)	Held
Whether an out-of-state DUI conviction under Cal. Veh. Code § 23152 is "substantially similar" to Va. Code § 18.2-266 for enhancement under § 18.2-270(E)	California’s statute differs because it criminalizes driving a "vehicle," which can cover conduct (e.g., mopeds on private property) not encompassed by Virginia’s "motor vehicle" statute — thus not substantially similar	California’s § 23152(b) and Virginia’s BAC-based prohibition both prohibit driving with BAC ≥ .08 and therefore share the common core elements required for substantial similarity	Held for Patterson: Commonwealth failed to prove § 23152 was substantially similar to § 18.2-266; admission of the California conviction (Exhibit 3) was error and reversal was required (remand for sentencing on second-offense DUI)

Dean v. Commonwealth, 61 Va. App. 209 (2012) (standard of review for admissibility; Commonwealth bears burden to prove substantial similarity)
Dillsworth v. Commonwealth, 62 Va. App. 93 (2013) (determination of substantial similarity is a question of law reviewed de novo)
Johnson v. Commonwealth, 53 Va. App. 608 (2009) (definition of "substantially similar" — common core characteristics required)
Shinault v. Commonwealth, 228 Va. 269 (1984) (more than general likeness required to establish substantial similarity)
Cox v. Commonwealth, 13 Va. App. 328 (1991) (other-state law not substantially similar if it permits convictions for acts not criminal under Virginia law)
Honaker v. Commonwealth, 19 Va. App. 682 (1995) (examining prior conviction record to determine whether underlying conduct would violate Virginia law)
Commonwealth v. South, 272 Va. 1 (2006) (procedure on remand when enhancement is reduced)