*1 the to findings regard court’s [general district] [with prejudice are without suspension] of the license review poten- other contesting suspension any or criminal, and shall civil or party any proceedings, tial as to civil or criminal. any proceedings, not be evidence estoppel that collateral Virginia, “In it is well established City Dist. v. mutuality.” Hampton Roads Sanitation requires Beach, 209, 213, Virginia Va. doctrine, exception for which no mutuality Under case, prevented “a from applies litigant generally this of a unless he would invoking preclusive judgment force of the issue reached prior litigation have been bound had the Lumber Railway Bailey N Co. v. & W opposite result.” Co., See also Va. Co., Atlantic Mutual Ins. Angstadt v. 46.2- Under the
391.2(C), was bound party suspension hearing no to the license Indeed, court. by any ruling general made district may statute states not be used in findings proceeding.
Thus, I also affirm the would conviction.
Court Richmond.
Sept. 1996. *2 Benton, J., opinion. dissented and filed (Bernhard brief), & Gardner, Bernhard, on Arlington David appellant. for (James S. Decker, Attorney General Assistant
Marla Graff General, brief), for Gilmore, III, appellee. on Attorney BENTON, MOON, C.J., BAKER, Present: BRAY, COLEMAN, WILLIS, ELDER, FITZPATRICK OVERTON, JJ.
WILLIS, Judge. a motor vehicle operating from his conviction of appeal
On alcohol, § 18.2- in violation of Code illegally consuming after 266.1(A), the trial court erred Jacinto contends evidence, grounded which was denying his motion strike his alleged failure to on the Commonwealth’s of alcohol was We find no error and illegal. *3 judgment affirm the of the trial court. 1994, 27, stopped officer an police
On November a Fairfax being operated by Mejia, automobile after the officer observed inmph mph that the vehicle was 50 a 35 zone and speeding yellow line.” “frequently weaving Ap- was across double vehicle, “detected a moderate odor of the officer proaching direction, Mejia satisfactorily per- At alcohol.” the officer’s A conducted sobriety properly formed three field tests. that his breath alcohol analysis breath alcohol established was grams per content was 0.03 210 liters breath. age. less than evidence, Mejia
At the conclusion of the Commonwealth’s on the that the Common- ground moved to strike the evidence consumption had failed to that his of alcohol was prove wealth Mejia rested illegal. The trial court denied the motion. motion, evidence and renewed the which producing without again the trial court denied. pro that because Code
Mejia contends by person of a motor vehicle a operation scribes the alcohol,” “after subject intended to of the legislature illegality make the operator’s consumption express element of the argues offense. He that because the Commonwealth failed to illegal, that his of alcohol had been .prove thereby Commonwealth failed to an element of the his charged, rendering proof support offense insufficient conviction.
The “illegally” Commonwealth contends word which, if surplusage impose required mere read to element would frustrate intent and proof, legislature’s plain produce would inconsistent and often absurd results. argues “illegally” Commonwealth the word should be construed to describe the of the conduct general the statute. proscribed by position persuasive.
We find neither statutory construction re “principles Well established give legislative us to ascertain and effect quire Commonwealth, 839, 836, 14 Va.App. intent.” Branch v. plain S.E.2d “Where by the state unambiguous, plain and we are bound ment____” Meadows, Va.App. Commonwealth v. 154, 155 used phrases “[W]ords S.E.2d given ordinary usually a statute should be their mani fairly unless a different intention is accepted meaning fest.” Woolfolk ‘strictly statutes are to be “Criminal the Commonwealth and favor [a]
construed A statute must be construed so liberty.’... penal citizen’s *4 clearly the only legislature conduct which proscribe as to v. King within the statute’s ambit.” Com intended to be 354-55, monwealth, Va.App. 368 S.E.2d Brooks v. a a suggest If of statute provisions
4-5 the several inconsistency, provi- we construe those for conflict or potential full effect to the give them and to sions so as to reconcile Land Occoquan legislative Cooper intent. See expressed 631, 633 Corp., Va.App. Dev. of Code 18.2- as used in the first sentence
“Illegally,” Thus, first 266.1(A), the “consuming modifies alcohol.” plainly offense, statute, of the general sentence of the definition under by person a motor vehicle a operation of prohibits alcohol. of has age who is made consumption expressly The of the alcohol element of the definition of the offense. wisdom general give not for us to decide. Our task is to of that inclusion is intent. legislature’s effect
However, be read in the second sentence of the statute must with, with, the first. That sen- conjunction consistently and a provides “any person” tence such with blood 210 liters of breath grams per concentration of 0.02 or more “any of section.” We construe such “shall be violation this twenty-one.” of person” “any person age to mean having a motor vehicle while person operates Such a who by provi- blood alcohol concentration is deemed specified in violation of the statute. sion of the second sentence be of alcohol is a argues consumption The Commonwealth aby and that because of alcohol type possession possession generally illegal, less than is person twenty-one years consumption by person correspondingly of alcohol such a despite the generally illegal. correctly observes that consumption, and there general prohibition against possession consumption possession exist circumstances which may twenty-one years less than by of alcohol those circumstances catalog no need to legal. perceive We However, and sacra- in this we note that medicinal opinion. examples. alcohol are consumption mental possession first sentence conclude that the offense defined We if proved that a proves alcohol, in motor vehicle after
operates a amount, illegal. was We construe and that of a prima the establishment provide the second sentence *5 that a under upon proof person case facie level age operates having prescribed a motor vehicle while the concentration, alcohol the accused casting upon blood prima whom such case established facie raising forward evidence a reasonable going burden with consumption. doubt as to the of his alcohol arrest, twenty-one At his was under Mejia the time of having a years operated and he a motor vehicle while grams per blood alcohol concentration of 0.02 or more that his produced suggesting of breath. He no evidence liters Thus, the prima illegal. of alcohol had not been proof sufficiently by case raised Commonwealth’s facie conviction, not err in Mejia’s and the trial court did supports denying his motion to strike the evidence. judgment of the trial court is affirmed.
Affirmed.
BENTON, Judge, dissenting. 18.2-266.1(A) provides
In as follows: pertinent part, Code for It shall be unlawful after any motor vehicle operate Any such with a blood alcohol
consuming alcohol. volume by weight by of 0.02 or more percent concentration but less than 0.02 or more 210 liters of breath grams per or grams per volume or less than 0.08 by weight by 0.08 a chemical test administered liters of breath as indicated shall in violation of this section. as in this article provided Mejia, that Jacinto who was proved The Commonwealth a motor vehicle with a breath twenty-one, operated liters of breath. Because grams per content of .03 necessary to alone does not fulfill all the elements this conduct 18.2-266.1(A), I dissent. a conviction under Code support required contends that the statute Mejia The Common- alcohol. “illegally” that he Al- ‘illegally5 surplusage.” contends that “the word wealth disagrees with majority though upholds by constructing analysis conviction argued by party finding not either that under the second proving sentence of the statute had the burden of “a *6 doubt as consump- reasonable of his alcohol I tion.” believe the reads and majority incorrectly applies statute.
In Virginia, statutory interpretation governed by is following well established principles:
If is clear and there is language unambiguous, [a statute’s] court; no need for construction plain meaning and intent of the given enactment will be it. When an enactment is clear unequivocal, general rules for con- struction of meaning statutes of doubtful do not apply. Therefore, when the language of an enactment is free from ambiguity, legislative resort to history extrinsic facts is not permitted because take we the words as written to And, meaning. determine their un- when an enactment ambiguous, extrinsic legislative history may not be used to it, ambiguity, create an and then remove where none other- wise exists. Lukhard,
Brown v. (1985) 316, 321, 84, 229 Va. 87 (citations omitted). An equally principle well established man nature, dates that when “the in question penal statute in it must be strictly construed the state and limited in application to cases falling clearly within of the statute.” Turner v. 456, 459, Va. 337, S.E.2d
To urges, reach result the word “illegally” must be read in out of the statute. Words a statute “cannot to reach a desired result. Board ignored” merely Wood, Supervisors v. 213 Va. (1973). The use of the “illegally” word the statute adds content and imparts meaning the statute and its use does v. not Airport Authority lead an “absurd result.” Norfolk Nordwall,
I with agree “illegally” modifies “consum- ing alcohol.” This reading the statute does not lead to an result
absurd
because
For
in various circumstances.
consume alcohol
may legally
may lawfully
twenty-one
example, persons
during religious
intake or
through
medicine
consume
See U.S.C.
sacrament,
or the
such as the Eucharist
Seder.
Act”).
(The
et seq.
2000bb,
Freedom Restoration
“Religious
§
allow
Also,
states,
Virginia,
states that border
many
including
homes under
consume alcohol
their
lawfully
minors to
Mihm,
See,
e.g.,
State
92 Ohio
circumstances.
various
(1994);
art.
Md. Ann.Code
The Commonwealth consumption. Noth illegal for liability only to impose intend The plain that assertion. supports in ing the statute only “illegally for liability imposes of Code may of a statute though the result alcohol.” Even in legislature believes the not be what See the statute. tended, distort or rewrite court cannot 445, 454, 416 243 Va. Hospital, Memorial v. Richmond Smith denied, 442, 121 967, 694, 113 S.Ct. cert. 689, 506 U.S. word, place itself and its “illegally,” L.Ed.2d 361 Nordwall, unambiguous.” “clear and in statute are ment Thus, presume we must 438. 395, at at 246 Va. well as that word as given to be intended that effect was Rockingham Cooperative each of the words the statute. in. 344, City Harrisonburg, Farm Bureau v. 171 Va. Co., v. Collieries (1938); King Empire S.E. If there is doubt S.E. statute,
concerning meaning guided by of a “we are fundamental construction that principle statutory penal ‘ statutes “must be construed the state and strictly in application clearly limited to cases within the lan falling ’ ” Simmons guage of the statute.” (1993) (citations omit ted).
In uphold order to what it deems to the intent of legislature, the majority “any concludes that the term such person” at the beginning of the second sentence modifies only “any person the words twenty-one” under the in the first In adopting sentence. this interpretation, majority no provides explanation why “any as to such person” refers to a only portion of the first sentence. I reading believe this of the statute to be flawed.
“Any person” such can only logically person refer to a age twenty-one who a vehicle operates after consum- alcohol, ing subject person specified the first sentence. sentence, Following immediately upon the first the phrase, such “any person,” only logically can refer to a fulfill- ing the entire proscription upon persons described the first sentence. Contrary implication in the opinion, the second sentence of the statute is read consistent with the “any first sentence when such person” “any read to refer to a motor operate[s] [who] *8 vehicle after illegally consuming alcohol.”
The majority interpretation creates an where ambiguity none exists. Only by truncating descriptive reference of the first sentence of the majority statute does the achieve the that ambiguity necessary analysis. to its That unnecessary ambiguity provides then the foundation for majority’s conclusion that a legislature constructed statute that re- quires by reference to interpretation legislative intent.
182 majori- ambiguity, an if the statute contained such
Even statutes not follow. Penal ultimate conclusion does ty’s strictly against construed Commonwealth “should be Commonwealth, 19 Va.App. in favor of the accused.” Frere v. (1995). Thus, if the statute 460, 464, must the statute likely interpretations, two equally contains Brooks v. liberty. a citizen’s interpreted be to favor always Commonwealth, 563, 566, contains of Code majority’s interpretation on the Common- a lesser burden imposes fewer elements and interpretation reasonable alternative equally wealth than the Thus, I that I believe of the statute have described. statutory this basic rule holding also violates majority’s construction. of the statute
Furthermore, interpretation strained only a as the proving, accused the burden shifts to the of his alcohol it, as to the “reasonable doubt terms removes from the Com- interpretation That consumption.” be- proving burden of constitutionally imposed its monwealth In re of the offense. every doubt element yond a reasonable L.Ed.2d Winship, 397 U.S. 90 S.Ct. 661, 666, 159 Clemmer v. (1970); a conviction unlawfully permits It also proof rather than presumption upon had based to an accused. proof shifting the burden unlawfully upon Montana, 523-24, 99 S.Ct. Sandstrom U.S. See presume cannot 2450, 2458-59, L.Ed.2d 39 We reasonable beyond a proven has been of an offense element “illegal” consumption regarding when no evidence doubt introduced. has been Me- regarding contains no evidence the evidence
Because alcohol, hold that the Common- I would jia’s consumption doubt beyond a reasonable failed to wealth I reverse Accordingly, would alcohol. conviction.