Freddie BECKHAM, III v. COMMONWEALTH of Virginia
Record No. 1146-16-2
Court of Appeals of Virginia, Richmond.
MAY 30, 2017
799 S.E.2d 689
Alan Polsky, Assistant Public Defender, for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Petty and Beales
Freddie Beckham, III (“appellant“) was convicted in the Circuit Court of Spotsylvania County (“trial court“) of driving under the influence (“DUI“) and refusal to submit to a breathalyzer, in violation of Code §§ 18.2-266 and 18.2-268.3 respectively. The trial court entered the DUI conviction after accepting a conditional plea agreement, and it entered the refusal conviction following a bench trial. Because the trial court admitted evidence of two Florida DUI convictions within the previous ten years, both Virginia charges were enhanced: the DUI became a Class 6 felony
I. BACKGROUND
On July 19, 2015, a Virginia State Police trooper stopped appellant after observing him make a left turn through a red stop light. The trooper detected an odor of alcohol on appellant, who admitted that he had consumed “a few beers.” Following appellant‘s poor performance of field sobriety tests and a preliminary breath test, the trooper arrested appellant for DUI. Appellant then refused a breathalyzer test after the trooper advised him of Virginia‘s implied consent statute and the criminal penalties for refusal.
During the bench trial on the refusal charge, the Commonwealth introduced two prior DUI convictions under
II. STANDARD OF REVIEW
“Generally, [w]e review a circuit court‘s decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb [that] decision ... absent a finding of abuse of that discretion.” Dean v. Commonwealth, 61 Va.App. 209, 213, 734 S.E.2d 673, 675 (2012) (quoting Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010)). A circuit court “by definition abuses its discretion when it makes an error of law.... The abuse-of-discretiоn standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. (quoting Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008)). Insofar as admissibility of evidence “rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review.” Mason v. Commonwealth, 64 Va.App. 599, 605, 770 S.E.2d 224, 227 (2015) (quoting Dean, 61 Va.App. at 213, 734 S.E.2d at 675). Accordingly, “the determination regarding whether appellant‘s [Florida] conviction[s] [are] ‘substantially similar’ to the offense proscribed by Code § [18.2-266] is a question of law” that this Court reviews de novo. Dillsworth v. Commonwealth, 62 Va.App. 93, 96, 741 S.E.2d 818, 820 (2013).
III. ANALYSIS
In his sole assignment of errоr, appellant contends that his Florida DUI convictions “were obtained under statutes not substantially similar” to
A. Virginia‘s DUI and refusal recidivist scheme
Under Virginia‘s DUI statutory scheme, the penalty for both DUI and refusing to submit to a chemical test to determine blood-alcohol content is enhanced if the offender has been convicted of certain prior offenses. Specifically,
For the purpose of determining the number of offenses committed by, and the punishment appropriate for, a person under this section, an adult conviction of any person ... undеr the following shall be considered a conviction of
§ 18.2-266 : ... (ii) thelaws of any other state or of the United States substantially similar to the provisions of ... § 18.2-266 ....
If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of
§ 18.2-266 , or a violation of any offense listed in subsection E of§ 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor....
Although the General Assembly did not define “substantially similar,” “in the context of determining if another stаte‘s statute is substantially similar to a code section, this Court has previously ‘establish[ed] that two things are “substantially similar” if they have common core characteristics or are largely alike in substance or essentials.‘” Mason, 64 Va.App. at 608, 770 S.E.2d at 228 (quoting Johnson v. Commonwealth, 53 Va.App. 608, 613, 674 S.E.2d 541, 543 (2009)). In this analysis, “the Commonwealth bears the burden of proving the out of state conviction was obtained under laws substantially similar to those of the Commonwealth. If the Commonwealth shows substantial similarity, the burden shifts to the defendant to produсe ‘evidence of dissimilarity.‘” Id. (quoting Dean v. Commonwealth, 61 Va.App. 209, 214, 734 S.E.2d 673, 676 (2012)). Dissimilarity exists, for instance, “if a person may be convicted of an offense under another jurisdiction‘s statute for conduct which might not result in a conviction under [Virginia‘s statute].” Cox v. Commonwealth, 13 Va.App. 328, 330-31, 411 S.E.2d 444, 446 (1991). Sound policy considerations justify this principle, for “[i]f a conviction in another state is based on conduct which is not a violation of [Virginia law], then to consider it under [a recidivist statute] would, without authority, expand the scope of the conviсtions which could be considered beyond that which the General Assembly specifically authorized.” Id. at 331, 411 S.E.2d at 446. Thus, “another state‘s law permitting a conviction for an act not constituting an offense under
B. Virginia and Florida DUI laws
Because the record does not indicate the specific subsection or subsections of
Both the Virginiа and Florida DUI statutory schemes contain a core statute defining the prohibited conduct as well as additional provisions setting forth presumptions and penalties.
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 chеmical 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, (iv) while such person is under the combined influence of alcohol аnd any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a)
0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).
Florida‘s definitional DUI statutory language appears as one subsection of a larger statute addressing penalties and other related matters:
A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical cоntrol of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person‘s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Both the Virginia and Florida statutes define a single offense that the government can establish through proof of at least one of the subsections. See
1. Impairment provisions
Subsections (ii), (iii), and (iv) of
Both impairment statutory schemes are functionally identical. Neither requires proof of a specific blood-alcohol level; instead, proof that the accused is simply “under the influence” under Virginia subsection (ii), is under the influence “to a degree which impairs his ability to drive or operate” a vehicle under Virginia subsections (iii) and (iv), or is under the influence and “affected to the extent that the person‘s normal faсulties are impaired” under Florida subsection (a) is sufficient to convict. These provisions allow the prosecution to prove its case without resort to chemical testing by “prov[ing] impairment beyond a reasonable doubt,” State v. Rolle, 560 So.2d 1154, 1155 (Fla. 1990), based on “all of the evidence of [the accused‘s] condition at the time of the alleged offense,” Leake v. Commonwealth, 27 Va.App. 101, 109, 497 S.E.2d 522, 526 (1998) (quoting Brooks v. City of Newport News, 224 Va. 311, 315, 295 S.E.2d 801, 804 (1982)).
Because individuals vary in how they outwardly manifest intoxication, “the difficulty of establishing proof beyond а reasonable doubt that a person was under the influence of alcohol, and conversely, the difficulty of defending against an unwarranted charge, are readily apparent.” Davis v. Commonwealth, 8 Va.App. 291, 296, 381 S.E.2d 11, 13 (1989). Given these difficulties, the Virginia and Florida legislatures enacted statutes creating certain presumptions of impairment based on
chemical test results indicating an accused‘s blood-alcohol level. Virginia‘s presumption statute provides in pаrt:
In any prosecution for a violation of ... clause (ii), (iii) or (iv) of
§ 18.2-266 , or any similar ordinance, the amount of alcoholor drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused‘s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions: ....
If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused‘s blood or 0.08 grams or more per 210 liters of the accused‘s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense....
At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person‘s normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s 316.1933 and this sectiоn are admissible into evidence when otherwise admissible, and the amount of alcohol in the person‘s blood or breath at the time alleged, as shown by chemical analysis of the person‘s blood, or by chemical or physical test of the person‘s breath, gives rise to the following presumptions:
....
(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidеnce that the person was under the
influence of alcoholic beverages to the extent that his or her normal faculties were impaired....
The presumptions provided in this subsection do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
Moreover, both the Virginia and Florida presumptions are rebuttable. The Virginia statute says as much on its face. See
Accordingly, appellant faced essentially the same standard and presumptions under the
2. Per se provisions
This Court next examines the Virginia and Florida DUI provisions requiring proof of a specific blood-alcohol level. The inquiry under
is not whether a driver was in fact “under the influence of alcohol” to а 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 [.08] percent as measured by a subsequently administered chemical test. It is for this reason that subsection (i) and similar statutes in our sister states have come to be known as “per se” statutes.
Davis, 8 Va.App. at 298, 381 S.E.2d at 15. For the reasons that follow, this Court finds that Virginia‘s per se provisions,
The Virginia statute requires proof of driving or operating and that the accused did so “while such person has a blood alcohol concentration of 0.08 percent or more” as indicated by a chemical test or “while such person has” a prohibited blood concentration of other enumerated controlled substances.
The Florida per se provisions require proof of essentially the same elements as the Virginia provisions: the government must prove the accused was “driving” or in “actual physical control of a vehicle” and that “[t]he person has a [breath- or] blood-alcohol level of 0.08 or more.”
Although the text of the Florida statute does not contain express language requiring proof that the accused had the unlawful blood-alcohol level while he was driving, a plain reаding of the statute naturally suggests that this is the case. Further, the Florida Standard Jury Instructions for Criminal Cases—which are promulgated by a committee of the Florida Supreme Court and subject to review by that Court—clarify that the accused must have the prohibited blood-alcohol level while he or she is driving or operating the vehicle:
To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a reasоnable doubt:
1. (Defendant) drove [or was in actual physical control of] a vehicle.
2. While driving [or in actual physical control of] the vehicle, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
Fla. Standard Jury Instructions in Criminal Cases 28.1 (2017) (emphasis added). Thus, as in Virginia, the prosecution bears the burden of proving the requisite blood-alcohol concentration at the time of driving or controlling a vehicle.
Appellant contends that the Florida statute is not substantially similar to Virginia DUI law because the Florida Supreme Court has characterized Florida‘s per se provisions
Florida law authorizes two alternative theories for DUI offenses: actual impairment, or a blood alcohol level of [0.08] or higher. § 316.193, Fla. Stat. (1987). The second of these is a strict-liability theory, since the fact of operating a motor vehicle with a blood-alcohol level оf [0.08] or higher is an offense even if impairment cannot be proven. There is some redundancy in the statute, however, since impairment is presumed if the blood-alcohol content is [0.08] or higher. § 316.1934(2), Fla. Stat. (1987). In any event, the presumption of impairment created by this last statute is a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol lеvel.
Id. (emphasis added). Florida‘s per se provisions, much like Virginia‘s analogous provisions, simply provide an alternative theory by which the prosecution can prove DUI. See, e.g., Rolle, 560 So.2d at 1155 (“It is clear that this statute now creates one offense, driving under the influence, which may be proven in either of two ways: (a) by proof of impairment, or (b) by proof of a blood-alcohol level of [0.08] percent or higher.“).
Viewed together, the Virginia аnd Florida per se provisions are operationally identical. Both set forth an offense requiring the prosecution to prove the same elements: that the defendant was driving, operating, or controlling a vehicle and at that time had an unlawful blood-alcohol content. As such, appellant‘s conduct that was sufficient to justify a conviction under Florida‘s per se provisions would certainly have led to a conviction under Virginia‘s per se provisions. See Cox, 13 Va.App. at 331, 411 S.E.2d at 446. Therefore, this Court holds that the per se provisions of both states’ DUI statutory schemes are also substantially similar for purposes of applying
IV. CONCLUSION
Appellant‘s conduct that was sufficient to sustain two Florida DUI convictions would have supported convictions under Virginia‘s DUI laws, regardless of whether the prosecution used an impairment or per se theory. This Court accordingly holds that the Virginia and Florida DUI statutоry schemes are substantially similar such that the trial court properly admitted appellant‘s two Florida DUI convictions pursuant to
Affirmed.