COMMONWEALTH OF VIRGINIA
AUGUST 19, 1997
Record No. 1120-96-4
CHARLES A. HIGHSMITH, JR.
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE JOHANNA L. FITZPATRICK
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
Robert R. Sparks, Jr. (Matthew Scott McConnell; Herge, Sparks
& Christopher, on briefs), for appellant.
(James S. Gilmore, III, Attorney General; John K. Byrum, Jr.,
Assistant Attorney General, on brief), for appellee.
On March 21, 1996, Charles A. Highsmith, Jr. (appellant) was
convicted by the Circuit Court of Arlington County (trial court)
in a jury trial of driving while intoxicated (DWI) in violation
of Code ? 18.2-266.
The sole issue on appeal is whether the general district court’s
(district court) pretrial dismissal of the DWI warrant precluded
the Commonwealth, under the doctrine of res judicata
or the related plea of autrefois acquit, from
indicting appellant for the same offense. For the following
reasons, we reverse the decision of the trial court.
In the early morning hours of May 7, 1995, appellant was
stopped for a suspected DWI. He was given a blood test that
showed his blood alcohol content exceeded the statutory limit.
Appellant was then charged by warrant with driving while
intoxicated in violation of "Section 14.2-1/18.2-266, Code
or Ordinances of this city, county, or town." Additionally,
appellant’s operator’s license was suspended pursuant to the
administrative license suspension (ALS) provisions of Code ? 46.2-391.2.
On May 11, 1995, the district court ruled on appellant’s
motion to review the suspension of his license under Code ? 46.2?391.2(C). The
district court determined that the police did not have probable
cause to arrest appellant, restored appellant’s driving
privileges, and returned his license.
On June 6, 1995, the district court heard argument on
appellant’s motion to dismiss the DWI warrant, in which appellant
contended that the Double Jeopardy Clause of the Fifth Amendment
and the doctrine of collateral estoppel barred further
prosecution for DWI subsequent to the suspension of his driver’s
license. By letter opinion and order dated June 16, 1995, the
district court found as follows:
It simply cannot be said that the DWI and ALS are part of
a single, unified proceeding. . . . Despite the
fact that they start at approximately the same time, they
result in two separate but independent proceedings.
The district court further concluded that "the sanction
of ALS constitutes punishment" and the subsequent
prosecution for DWI was not punishment "meted out as a part
of a single proceeding." Accordingly, the district court
granted appellant’s motion to dismiss, citing the Double Jeopardy
Clause’s prohibition against multiple punishments for the same
After the district court’s dismissal, appellant was indicted
on August 21, 1995 by a circuit court grand jury for the same DWI
offense. Appellant filed a new motion to dismiss. On February 7,
1996, the trial court denied appellant’s motion to dismiss for
the following reasons:
My problem was the word dismissal, as to whether that was
a trial, whether it equaled a trial on the merits, whether it
was a verdict, whether it did in fact end any attempt by the
Commonwealth to do what the defendant said was an end run and
indirect appeal, if you will, by indicting in the Circuit
Court on the dismissed charges.
The defense counsel in each of these cases submitted
authorities. . . . The Court [has] considered it
at great length and concludes that [the district court’s] decision was not a verdict. It was never a dismissal on the
merits. It did not put the defendants in the jeopardy that would
justify double jeopardy plea.
Therefore, the motion to dismiss is denied in all pending
cases in which they are under advisement.
Appellant was convicted of DWI on March 21, 1996.
First, appellant contends that the doctrine of res judicata
bars his later indictment on the identical charge that was
dismissed by the general district court. Appellant argues that
because the doctrine of collateral estoppel applies in criminal
proceedings, so too does res judicata, as both
doctrines are based on the conclusiveness of a court’s judgment
and the estoppel effect of the judgment. The
application of res judicata in a criminal context
is an issue of first impression in Virginia.
Res judicata is a judicially created doctrine
founded upon the "considerations of public policy which
favor certainty in the establishment of legal relations, demand
an end to litigation, and seek to prevent harassment of
parties." Res judicata literally means a
"matter adjudged," and it precludes relitigation of a
claim or issue once a final determination on the merits
has been reached by a court of competent jurisdiction. It rests
upon the principle that a person should not be required to
relitigate the same matter a second time "with the same
person or another so identified in interest with such person that
he represents the same legal right, precisely the same question,
particular controversy, or issue, which has been necessarily
tried and fully determined, upon the merits, by a court of
competent jurisdiction. . . ."
Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614,
617-18, 376 S.E.2d 787, 788 (1989) (citations omitted) (emphasis
added); accord Bates v. Devers, 214 Va. 667,
670-71, 202 S.E.2d 917, 920?21 (1974); Patterson v. Saunders,
194 Va. 607, 611, 74 S.E.2d 204, 207, cert. denied, 345
U.S. 988 (1953).
A person seeking to assert res judicata as a
defense must establish identity of: (1) the remedies sought; (2)
the cause of action; (3) the parties; and (4) the quality of the
persons for or against whom the claim is made. Johnson, 7
Va. App. at 618, 376 S.E.2d at 789. Further, to assert this
defense, the party must establish that "the judgment in the
former action [was] rendered on the merits by a court of
competent jurisdiction." Simmons v. Commonwealth, 252
Va. 118, 120, 475 S.E.2d 806, 807 (1996) (emphasis added).
A judgment is not res judicata if it does not go to the merits
of the case. . . .
By a judgment "upon the merits" is not meant
"on the merits" in the moral sense of those words. It
is sufficient that the status of the suit was such that the
parties might have had their suit disposed of on its merits if
they had presented all their evidence and the court had properly
understood the facts and correctly applied the law to the facts.
It is therefore sufficient if the merits are actually or
As to what constitutes a decision on the merits, a decision of
an issue of law on a demurrer is a decision on the merits and
constitutes res judicata as to any other proceedings where the
same parties and the same issues are involved. . . .
* * * * * * *
A dismissal of a cause of action may constitute a judgment
on the merits depending upon the grounds upon which such
dismissal is based. A judgment of dismissal which is intended to
be and is a disposition on the merits of a claim is a final
judgment on the merits.
8B Michie’s Jurisprudence, Former Adjudication or
? 12 (1996)
(emphasis added). Each of the above requirements is met in the
case at bar.
Although we have yet to apply this doctrine in the criminal
context, it is well recognized by federal jurisdictions and other
states that "[t]he doctrines of res judicata and collateral
estoppel apply to criminal, as well as civil, proceedings." United
States v. Cejas, 817 F.2d 595, 598 (9th Cir. 1987); see
generally E.H. Schopler, Annotation, Modern Status of
Doctrine of Res Judicata in Criminal Cases, 9 A.L.R.3d 203
[i]n most jurisdictions it is well settled that the
doctrine of collateral estoppel is applicable in criminal
cases, that is, that the criminal nature of a proceeding does
not, ipso facto, preclude a judgment rendered therein from
operating as collateral estoppel in another criminal
prosecution. As applied in criminal cases, the primary
significance of the doctrine of res judicata lies in its
operation as collateral estoppel, since the doctrine of
collateral estoppel, differently from the defense of double
jeopardy and "former acquittal" or "former
conviction," is applicable irrespective of whether the
former and the later proceeding are based on the same
offense. However, most of the cases discussing the doctrine
involve related offenses, that is, offenses arising out of
the same occurrence or transaction.
Schopler, supra, at ?
Moreover, the doctrine of res judicata has been
applied to a pretrial dismissal on the merits. See Cejas,
817 F.2d at 599 (holding that a pretrial dismissal of an
indictment was a final decision on the merits that barred further
prosecution and that "[t]he granting of a motion to dismiss
based upon double jeopardy . . . would have the effect of putting
an end to all further prosecution"). See also United
States v. Oppenheimer, 242 U.S. 85, 87-88 (1916) (a case in
which the Supreme Court determined that "a judgment for the
defendant upon the ground that the prosecution is barred goes to
his liability as a matter of substantive law, and one judgment
that he is free as matter of substantive law is as good as
another."). The Oppenheimer Court further held that
"[a] plea of the statute of limitations is a plea to the
merits" and explained that:
It cannot be that a judgment of acquittal on the ground of
the statute of limitations is less a protection against a
second trial than a judgment upon the ground of innocence, or
that such a judgment is any more effective when entered after
a verdict than if entered by the government’s consent before
a jury is empaneled . . . .
* * * * * * *[T]he Fifth Amendment was not intended to do away with
what in the civil law is a fundamental principle of justice
in order, when a man once has been acquitted on the merits,
to enable the government to prosecute him a second time.
Id. at 87 (citations omitted). See also United
States v. Blackwell, 900 F.2d 742, 745 (4th Cir. 1990)
(stating that the doctrines of res judicata and
collateral estoppel are "implicated by the pretrial
disposition of a prior case if an ultimate issue in the second
prosecution was conclusively litigated and necessarily determined
as part of the judgment entered in the first case"); United
States v. Byars, 762 F.Supp. 1235, 1237 (E.D. Va. 1991)
("the doctrines of res judicata and collateral estoppel
apply in criminal cases . . . and more particularly, to pretrial
dispositions of issues in criminal cases").
We see no reason to bar the application of this doctrine to
the issue in the instant case: the second prosecution of a
criminal case dismissed by a substantive pretrial judgment by a
court which had jurisdiction to determine the case on its merits. Accordingly, we find that the
Commonwealth’s contention that no decision on the merits was
encompassed by the general district court’s dismissal on double
jeopardy grounds is without merit.
In the instant case, the prosecution on the indictment in the
trial court involved the same charge and the same parties as did
the prosecution on the warrant in the general district court.
Subsequent to the general district court’s dismissal of the
charge on double jeopardy grounds, both this Court and the
Supreme Court of Virginia rejected the district court’s
rationale. Although the district court’s
dismissal was based on a principle of law that was later
determined to be erroneous, its dismissal was nevertheless a
final ruling on the merits of the case. To hold otherwise would
improperly allow the defendant’s rights to be contingent on the
correctness of the judge’s actions. See, e.g., Slagle
v. Slagle, 11 Va. App. 341, 346, 398 S.E.2d 346, 349 (1990)
(a judgment is conclusive even though manifestly wrong in law or
fact); Nicholas v. Commonwealth, 186 Va. 315, 320, 42
S.E.2d 306, 309 (1947) (the power to decide includes the power to
decide wrongly and an erroneous decision is as binding as one
that is correct). See also 8B Michie’s Jurisprudence,
Former Adjudication or Res Judicata ? 10 (1996) ("A
judgment on the merits, fairly rendered, by a court of competent
jurisdiction, having cognizance both of the parties and the
subject matter, however erroneous it may be, is conclusive
on the parties and their privies until reversed or set aside in a
direct proceeding for that purpose, and it is not amenable to
collateral attack.") (emphasis added); Thomas v.
Consolidated Coal Co., 380 F.2d 69, 80 n.16 (4th Cir.), cert.
denied, 389 U.S. 1004 (1967) ("A judgment on the merits
is res judicata even though erroneous.").
Thus, in the instant case, res judicata barred
the indictment and subsequent trial of appellant in the circuit
court for the same offense that had been dismissed previously by
the general district court.
As a corollary to his defense of res judicata,
appellant asserts the additional plea of autrefois acquit
and relies upon the cases of Adkins v. Commonwealth, 175
Va. 590, 9 S.E.2d 349 (1940), and Commonwealth v. Perrow,
124 Va. 805, 97 S.E. 820 (1919). However, we find that the plea
of autrefois acquit does not control the case at
This plea is generally recognized as being subsumed within the
Double Jeopardy Clause. See generally 2C Michie’s
Jurisprudence, Autrefois, Acquit and Convict ? 1 et seq. (1996).
It is well settled "’that jeopardy means the danger of
conviction.’ Equally well settled is the principle that jeopardy
attaches ‘[i]n a trial before a court without a jury . . . when
the trial has reached the stage where the Commonwealth begins to
introduce its testimony.’" Courtney v. Commonwealth,
23 Va. App. 561, 567, 478 S.E.2d 336, 338 (1996) (quoting Rosser
v. Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259
(1933)); see also Greenwalt v. Commonwealth, 224
Va. 498, 500-01, 297 S.E.2d 709, 710 (1982). In the instant case,
it is undisputed that jeopardy had not attached at the time of
the district court’s disposition of the case. Further, the United
States Supreme Court made clear in United States v. Scott,
437 U.S. 82 (1978), that the disposition of the instant case is
not to be categorized as an "acquittal."
"Autrefois acquit" literally means
"formerly acquitted" and is defined as "[t]he name
of a plea in bar to a criminal action, stating that the defendant
has been once already indicted and tried for the same alleged
offense and has been acquitted." Black’s Law Dictionary
123 (6th ed. 1997). The Supreme Court addressed the application
of autrefois acquit in Adkins v. Commonwealth,
175 Va. 590, 9 S.E.2d 349 (1940), a case involving a prosecution
for bigamy. The first indictment against the defendant charged
him with one count of bigamy and a second count of aiding and
abetting the commission of the crime of bigamy. The defendant,
"upon his arraignment, demurred" to the first
indictment on the ground that, being an unmarried person, he was
not included within the statute defining bigamy and that as a
matter of law, he therefore could not be an accessory to the
crime of bigamy. Adkins, 175 Va. at 594, 9 S.E.2d at 350.
The court, by order, sustained the demurrer to the indictment and
"’to each count thereof,’" and discharged the defendant
from the indictment. Id. at 594-95, 9 S.E.2d at 350.
Subsequently, the defendant was arraigned on a second
indictment charging him with aiding and abetting the commission
of the crime of bigamy. Upon his arraignment, the defendant filed
a plea of autrefois acquit, alleging that
"having been acquitted on the merits and discharged from
custody [on the first indictment], he should not be required to
answer the second indictment." Id. at 595, 9 S.E.2d
at 351. However, the trial court sustained the Commonwealth’s
demurrer to the defendant’s plea, and he was tried and convicted
on the second indictment. Id.
On appeal, the Supreme Court interpreted the defendant’s plea
as "founded solely on the legal proposition that
having once been acquitted on the merits and discharged .
. . he [was] protected from further prosecution." Id.
at 596, 9 S.E.2d at 351 (emphasis added). The Court found that
the Commonwealth’s demurrer, alleging that the
"discharge" of the defendant under the first indictment
had not been established, was "untenable" and held as
There is not a syllable [in the order sustaining the demurrer]
which indicates that the demurrer was sustained without
prejudice. There is not a word in it which indicates that the
demurrer was sustained on the ground that it was defective in
form. The court, as evinced by the order, sustained the
demurrer as to each count thereof on the ground relied upon by
the accused and discharged him "without day." This, in
our opinion, was an ultimate decision upon a question of law
. . . .
Adkins, 175 Va. at 596, 9 S.E.2d at 351 (emphasis
In so holding, the Adkins Court relied upon its
previous decision in Commonwealth v. Perrow, 124 Va. 805,
97 S.E. 820 (1919). In Perrow, the defendant was convicted
and fined upon a warrant issued by a justice of the peace. He
appealed to the circuit court, and that court, finding the
statute under which the defendant was charged to be
"unconstitutional and void," "quashed and
dismissed the warrant." Id. at 808, 97 S.E. at 821.
The Commonwealth then appealed the circuit court’s determination
to the Supreme Court. While basing its decision, in part, on the
principle that the Commonwealth had no right to appeal the
dismissal of the defendant’s warrant, the Court also held the
There was no jury trial in the instant case, and we
have not overlooked the fact that jeopardy, as ordinarily
understood in legal parlance, refers to the danger of
conviction and punishment which a defendant incurs in a
criminal case where a jury has been empaneled and sworn. But
we are of the opinion that the spirit and purpose of
the immunity intended to be secured by the doctrine in
question [former jeopardy] will be violated whenever a
defendant in any criminal case has been formerly tried by
competent authority — whether court or jury — and
discharged upon a defense constituting a bar to the
proceeding, whether that defense be rested upon the law
or the facts.
Perrow, 124 Va. at 815, 97 S.E. at 823 (emphasis
The Court dismissed the Commonwealth’s writ of error and the
defendant prevailed. Id. at 816, 97 S.E. at 823.
The Supreme Court of Virginia has yet to overrule either of
these cases; however, we interpret the holding and analysis of
the United States Supreme Court in United States v. Scott,
437 U.S. 82 (1978), decided subsequent to Perrow and Adkins,
to be determinative of the application of autrefois acquit
under the circumstances of the instant case. In Scott, the
Court held that for double jeopardy purposes "a defendant is
acquitted only when ‘the ruling of the judge, whatever its
label, actually represents a resolution [in the defendant’s
favor], correct or not, of some or all of the factual elements
of the offense charged.’" Scott, 437 U.S. at 97
(quoting United States v. Martin Linen Supply Co., 430
U.S. 564, 571 (1977)) (emphasis added). The Court explained that
no double jeopardy concern is implicated where no factual
determination is rendered but the case is terminated, because the
reason for treating a termination obtained by a defendant
"of the proceedings against him in the trial court without
any finding by a court or jury as to his guilt or innocence"
is that such defendant "has not been ‘deprived’ of his
valued right to go to the first jury." Scott, 437
U.S. at 100. Thus, "[n]o interest protected by the Double
Jeopardy Clause is invaded when the Government is allowed to
appeal and seek reversal of such a midtrial termination of the
proceedings in a manner favorable to the defendant." Id.;
accord Greenwalt v. Commonwealth, 224 Va. 498, 500,
297 S.E.2d 709, 710 (1982) ("The double jeopardy provisions
. . . protect against a second prosecution for the same offense
after an acquittal. A dismissal qualifies as an acquittal for
double jeopardy purposes when it is granted pursuant to a
factual, as opposed to legal defense."); Dodson v.
Commonwealth, 23 Va. App. 286, 303, 476 S.E.2d 512, 520
(1996) (holding that a dismissal of an indictment for procedural
defects does not qualify as an acquittal for double jeopardy
purposes because it was granted pursuant to a legal, as opposed
to factual, defense).
While we hold that the second prosecution is not barred by the
plea of autrefois acquit, it is encompassed by the
related bar of res judicata. Accordingly, for the
foregoing reasons, the decision of the trial court is reversed.
 The general district court’s
finding that the ALS proceeding raised double jeopardy concerns
in a subsequent prosecution was later determined by this Court
and by the Supreme Court to be an erroneous principle of law. See
Brame v. Commonwealth, 252 Va. 122, 476 S.E.2d 177 (1996)
(holding the automatic license suspension under Code ? 46.2-391.2 is a remedial
sanction whose purpose is "so clear and compelling that it
overrides any incidental punitive effect the provision may
have"); accord Nicely v. Commonwealth, 23 Va.
App. 327, 477 S.E.2d 11 (1996); Tench v. Commonwealth, 21
Va. App. 200, 462 S.E.2d 922 (1995).
 It is well recognized in
Virginia that "the doctrine of collateral estoppel is a
constitutional requirement embodied in the fifth amendment
protection against double jeopardy and is applicable to the
states through the fourteenth amendment to the United States
Constitution." Simon v. Commonwealth, 220 Va. 412,
415, 258 S.E.2d 567, 569 (1979). "’The doctrine of
collateral estoppel in criminal cases . . . means "that when
an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit."’" Jones v. City
of Lynchburg, 23 Va. App. 167, 171, 474 S.E.2d 863, 865
(1996) (quoting Rogers v. Commonwealth, 5 Va. App. 337,
341, 362 S.E.2d 752, 754 (1987)).
 The doctrine of res judicata
applies to the instant case because it involves the pretrial
dismissal of a misdemeanor by the general district court.
Clearly, this doctrine has no applicability either to a general
district court’s finding of no probable cause at a felony
preliminary hearing or to a later straight indictment on the same
 See supra note 1.
The Perrow Court concluded that, as a general rule, the
Commonwealth has no right to appeal from a judgment in a
defendant’s favor absent express statutory authority. See Perrow,
124 Va. at 815, 97 S.E. at 823. Since that time, the General
Assembly has provided certain appeal rights to the Commonwealth. See,
e.g., Code ?
19.2-398. However, this code section is inapplicable to the case