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COREY v. COMMONWEALTH




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COREY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements

Argued at Alexandria, Virginia

Record No. 0421-02-4

BRUCE COREY, S/K/A

BRUCE OLIVER COREY

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE JEAN HARRISON CLEMENTS

NOVEMBER 12, 2003

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Alfred D. Swersky, Judge

Gregory Beckwith (Thomas C. Carter; Phillips, Beckwith, Hall
&

Chase; Carter & Kramer, P.C., on briefs), for appellant.

Jennifer R. Franklin, Assistant Attorney General (Jerry W.
Kilgore,

Attorney General, on brief), for appellee.

Bruce Oliver Corey was convicted on his conditional plea of
guilty of driving while

intoxicated, in violation of Code ? 18.2-266. Finding Corey’s
earlier federal conviction for driving

while intoxicated was a proper predicate offense for enhancement
purposes, the trial court imposed

an enhanced sentence upon Corey in accordance with Code ?
18.2-270(C). On appeal, Corey

contends the trial court erred in using his prior federal
conviction for driving while intoxicated to

enhance his sentence because the federal regulation he violated
was not "substantially similar" to

Code ? 18.2-266, as required by Code ? 18.2-270(E). We agree
and, therefore, reverse the

judgment of the trial court, vacate the sentence imposed, and
remand for resentencing.

As the parties are fully conversant with the record in this
case, and because this

memorandum opinion carries no precedential value, this opinion
recites only those facts and

incidents of the proceedings as are necessary to the parties’
understanding of the disposition of this

appeal.

I. BACKGROUND

The relevant facts are not in dispute. On January 12, 1995,
Corey was convicted in the

United States District Court for the Eastern District of
Virginia, Alexandria Division, of driving

while intoxicated, in violation of 36 C.F.R. ? 4.23(a)(2). On
July 14, 1997, Corey was convicted in

the General District Court of Fairfax County of driving while
intoxicated, in violation of Fairfax

County Code ? 82-1-6, which adopts and incorporates Code ?
18.2-266 by reference.[2]

On December 27, 2000, Corey was stopped by Alexandria Police
Officer B. Sixsmith and

charged with, inter alia, driving while intoxicated,
third offense, in violation of Code ?? 18.2-266

and 18.2-270.[3]

While awaiting trial on that charge, Corey filed a motion for a
declaration by the trial court

that his 1995 federal conviction for driving while intoxicated
could not be used to enhance his

punishment in the present case under Code ? 18.2-270(C) because
36 C.F.R. ? 4.23(a)(2) was not

"substantially similar" to Code ? 18.2-266, as
required by Code ? 18.2-270(E). After briefing and

argument, the trial court issued a letter opinion on August 15,
2001, rejecting Corey’s argument.

Corey then entered a conditional guilty plea reserving the right
to appeal the trial court’s

decision. By order entered November 29, 2001, the trial court
convicted Corey on his guilty plea of

driving while intoxicated, in violation of Code ? 18.2-266, his
third such offense within ten years,

and sentenced him in accordance with Code ? 18.2-270(C) to
twelve months in jail, with all but ten

days suspended.

This appeal followed.

II. ANALYSIS

On appeal, Corey contends, as he did below, that the trial court
improperly used his 1995

federal conviction for driving while intoxicated to elevate his
conviction for sentencing purposes to

a felony offense pursuant to Code ? 18.2-270(C). Corey argues
that 36 C.F.R. ? 4.23(a)(2) is not

"substantially similar" to the provisions of Code ?
18.2-266, as required by Code ? 18.2-270(E),

because the federal drunk-driving statute criminalizes conduct
that Virginia’s drunk-driving statute

does not. Thus, Corey concludes, his federal conviction was not
a proper predicate offense for

enhancement purposes, and, consequently, he should have been
sentenced in this case pursuant to

Code ? 18.2-270(B) for a misdemeanor conviction of driving
while intoxicated, second offense

within five years. We agree.

Code ? 18.2-270(C) is a recidivist statute that, inter alia,
enhances the sentence of a

defendant "convicted of three or more [driving while
intoxicated] offenses [under Code] ? 18.2-266

committed within a ten-year period" by elevating the
"conviction of the third offense" from a

misdemeanor to a Class 6 felony. As relevant to this appeal,
Code ? 18.2-270(E) provides that a

conviction under "the laws . . . of the United States
substantially similar to the provisions of . . .

[Code] ?? 18.2-266 through 18.2-269" is a "prior
conviction" for purposes of enhancing a sentence

pursuant to Code ? 18.2-270(C).

The sole issue in this appeal, then, is whether the federal law
under which Corey was

convicted in 1995 for driving while intoxicated, 36 C.F.R. ?
4.23(a)(2), is "substantially similar" to

the provisions of Code ? 18.2-266, the law governing the
offense of driving while intoxicated in

Virginia. If it is not, Corey’s federal conviction for driving
while intoxicated is not a proper

predicate offense for enhancement purposes under Code ?
18.2-270(C). See Shinault v.

Commonwealth, 228 Va. 269, 271, 321 S.E.2d 652, 654 (1984)
(holding the trial court erred in

considering defendant’s out-of-state conviction a prior
offense because it was not based on a

statute that was "substantially similar" to Virginia’s
drunk-driving statute); Rufty v.

Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981)
(holding "it was error to sentence

the defendant pursuant to the enhanced punishment provisions of
Code ? 18.2-270" when the

Commonwealth failed to prove that defendant’s prior foreign
conviction was obtained under

drunk-driving laws "substantially similar" to Virginia’s
drunk-driving laws).

In determining whether a foreign jurisdiction’s drunk-driving
law is "substantially

similar" within the meaning of Code ? 18.2-270(E) to Code
? 18.2-266, the provisions of both

laws must be examined. Rufty, 221 Va. at 838-39, 275 S.E.2d at
586. It is well settled in

Virginia that, "if a person may be convicted of an offense
under another jurisdiction’s statute for

conduct which might not result in a conviction under [a
Virginia statute], the statutes are not

‘substantially conforming.’" Cox v. Commonwealth, 13
Va. App. 328, 330-31, 411 S.E.2d 444,

446 (1991) (emphasis added); see also Shinault, 228 Va. at
271-72, 321 S.E.2d at 654 (finding

statutes not "substantially similar" because, unlike
Virginia’s statute, out-of-state drunk-driving

statute gave rise to a conclusive presumption); Turner v.
Commonwealth, 38 Va. App. 851,

861-62, 568 S.E.2d 468, 472-73 (2002) (finding statutes not
"substantially similar" because a

defendant could be found guilty of housebreaking under the
Uniform Code of Military Justice for

conduct that may not result in a conviction under Code ??
18.2-90, 18.2-91, and 18.2-92).

In pertinent part, Code ? 18.2-266 provides as follows:

It shall be unlawful for any person to drive or operate any

motor vehicle, engine or train . . . 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 . .
. .

For the purposes of this section, the term "motor
vehicle
"

includes mopeds, while operated on the public highways of this

Commonwealth.

Code ? 46.2-100 defines "highway" as follows:

[T]he entire width between the boundary lines of every way or
place

open to the use of the public for purposes of vehicular travel
in the

Commonwealth, including the streets and alleys, and, for

law-enforcement purposes, the entire width between the boundary

lines of all private roads or private streets that have been
specifically

designated "highways" by an ordinance adopted by the
governing

body of the county, city, or town in which such private roads or

streets are located.

Code ? 46.2-100 defines "moped" as follows:

[A] conveyance that is either (i) a bicycle-like device with
pedals and

a helper motor that is rated at no more than two brake
horsepower

and that produces speeds up to a maximum of thirty miles per
hour

or (ii) a motorcycle with an engine displacement of 50 cubic

centimeters or less and a maximum speed of less than thirty
miles per

hour.

36 C.F.R. ? 4.23(a)(2) provides as follows:

Operating or being in actual physical control of a motor vehicle
is

prohibited while . . . [t]he alcohol concentration in the
operator’s

blood or breath is 0.10 grams or more of alcohol per 100
milliliters of

blood or 0.10 grams or more of alcohol per 210 liters of breath.

Provided however, that if State law that applies to operating a
motor

vehicle while under the influence of alcohol establishes more

restrictive limits of alcohol concentration in the operator’s
blood or

breath, those limits supercede the limits specified in this
paragraph.

The process of how the alcohol concentration in the operator’s
blood or breath is to be determined is

set forth in relevant part in 36 C.F.R. ? 4.23(c)(1), which
provides as follows:

At the request or direction of an authorized person who has
probable

cause to believe that an operator of a motor vehicle within a
park

area has violated a provision of paragraph (a) of this
section, the

operator shall submit to one or more tests of the blood, breath,
saliva

or urine for the purpose of determining blood alcohol and drug

content.

(Emphasis added.)

Pursuant to 36 C.F.R. ? 1.3(a), "[a] person convicted of
violating [36 C.F.R. ? 4.23(a)(2)]

within a park area . . . shall be punished by a fine as
provided by law, or by imprisonment not

exceeding 6 months, or both." (Emphasis added.) Pursuant to
36 C.F.R. ? 1.2(a)(1), the regulations

relating to the operation of motor vehicles while intoxicated
"apply to all persons entering, using,

visiting, or otherwise within . . . [t]he boundaries of
federally owned lands . . . administered by the

National Park Service." Pursuant to 36 C.F.R. ? 1.4(a), a
"motor vehicle" is defined as "every

vehicle that is self-propelled and every vehicle that is
propelled by electric power, but not operated

on rails or upon water, except a snowmobile and a motorized
wheelchair," and "park area" is

defined as "any area of land and water now or hereafter
administered by the Secretary of the Interior

through the National Park service for park, monument, historic,
parkway, recreational, or other

purposes."

Examining the provisions of both the federal and state laws, it
is readily apparent that an

intoxicated person who drives a moped in a part of a federal
park area that is not designated for

vehicular travel may be convicted of driving while intoxicated
under 36 C.F.R. ? 4.23(a)(2). On

the other hand, an intoxicated person who drives a moped in an
area of the Commonwealth not

designated for vehicular travel would not be subject to
conviction for driving while intoxicated

under Code ? 18.2-266. Code ? 18.2-266 expressly indicates
that, as used in that statute, the

term "motor vehicle" includes mopeds only when they
are "operated on the public highways" of

the Commonwealth. The definition of "highway" in
Virginia does not include an off-road area

not designated for vehicular travel.

Moreover, the record of Corey’s 1995 federal conviction
reveals only that Corey was

convicted of driving while intoxicated under 36 C.F.R. ?
4.23(a)(2). It permits us to conclude

only that Corey committed the offense while operating a motor
vehicle within a federal park

area. It does not permit us to conclude that he was convicted of
some act other than driving a

moped while intoxicated in a part of a federal park area that
was not designated for vehicular

travel, which is conduct that would not result in a conviction
under Code ? 18.2-266.

Because the federal drunk-driving regulation permits a
conviction for conduct that would

not result in a conviction under Code ? 18.2-266, it is not
"substantially similar" to Code

? 18.2-266 within the meaning of Code ? 18.2-270(E). Hence,
Corey’s prior federal conviction

for driving while intoxicated may not properly be used as a
predicate offense for purposes of

enhancing Corey’s sentence in this case. We hold, therefore,
that the trial court erred in

considering Corey’s federal conviction a prior offense for
purposes of enhancement under Code

? 18.2-270(E) and in sentencing him under Code ? 18.2-270(C).

Accordingly, we reverse the judgment of the trial court, vacate
the sentence imposed

upon Corey, and remand the case to the trial court for
resentencing in accordance with Code

? 18.2-270(B).

Reversed, vacated, and remanded.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]Corey raises
no challenge in connection with this conviction on appeal.

 

[3]Corey concedes
on appeal that the factual basis proffered by the Commonwealth for his

conditional plea of guilty was sufficient to convict him of
driving while intoxicated, in violation

of Code ? 18.2-266.


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