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CCW under the influence conviction is affirmed

Virginia Lawyers Weekly//February 4, 2023

CCW under the influence conviction is affirmed

Virginia Lawyers Weekly//February 4, 2023

Where defendant was found not guilty of driving under the influence, this did not preclude a conviction for carrying a concealed weapon under the influence of alcohol arising from the same incident.

Issue presented

“The question before this Court is whether an acquittal of driving under the influence in a court not of record – and without a statement of findings, or equivalent, from the judge – forecloses a conviction of carrying a concealed weapon while under the influence of alcohol arising from the same occurrence. … [T]he Court finds that it does not.”

Collateral estoppel

“Collateral estoppel is a doctrine of fact preclusion ‘embodied in the [F]ifth [A]mendment protection against double jeopardy’ … The doctrine holds ‘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.’ …

“Four requirements must be met for collateral estoppel to apply: ‘(1) the parties to the two proceedings must be the same, (2) the issue of fact sought to be litigated must have been actually litigated in the prior proceeding, (3) the issue of fact must have been essential to the prior judgment, and (4) the prior proceeding must have resulted in a valid, final judgment against the party against whom the doctrine is sought to be applied.’ …

“However, collateral estoppel is rarely applicable in criminal verdicts. ‘An acquittal, standing alone, does not permit a conclusion with respect to a court’s findings or rationale.’ … In fact, ‘[t]he doctrine of collateral estoppel is not often available to an accused, because it is usually impossible to determine with any precision upon what basis the [fact finder] reached a verdict in a criminal case, leaving the defense of collateral estoppel available to an accused only in a “rare situation.”’”


To find defendant innocent of the DUI charge, “the General District Court must have actually found that Defendant had either a BAC of less than 0.08 or was not under the influence of alcohol. Without one of these specific findings, collateral estoppel cannot apply.

“Defendant was convicted of reckless driving and of carrying a firearm while under the influence, but acquitted of DUI. In addition to the DUI charge under Va. Code § 18.2-266, Defendant faced an enhanced charge under § 18.2-270 as this was a repeat violation.

“Like the judge in Cleveland [v. Commonwealth, 38 Va. App. 199 (2002)], …  the judge here perhaps sought to ‘give [Defendant] a break[,]’ choosing the penalty for reckless driving rather than the more severe option of a repeat DUI, which would require a mandatory minimum sentence and driver’s license revocation.”

No speculation

“But this Court would be speculating to definitively say why the court below ruled the way that it did: the record before this Court contains no transcript of findings from the General District Court. The Warrant of Arrest form for the DUI charge indicates only that Defendant was present at the hearing on August 8, 2022, pleaded ‘Not Guilty,’ and was tried and found ‘Not Guilty’ under both Va. Code§ 18.2-266 and§ 18.2-70. …

“The Court possesses no record on which it can determine whether the court below found for or against Defendant on any of the individual elements of the DUI charge. As a result, like a jury verdict in a court of record, this lack of a record makes it ‘impossible to determine with any precision upon what basis the judge below reached his decision. … This precise basis is required to invoke the doctrine of collateral estoppel on ‘an issue of ultimate fact[.]’”

All of the evidence contained in the arresting officer’s report, “would have justified a DUI conviction. Assuming without deciding that this occurred, such a showing would imply that the judge likely based his ‘verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ …

“The fact that the court instead convicted Defendant of reckless driving strongly implies that either the court did not actually litigate the issue of being ‘under the influence’ (at least with respect to DUI), or that the court’s choice of lenity rendered the issue non-essential to the prior judgment. …

“Defendant’s acquittal ‘standing alone, does not permit a conclusion with respect’ to the General District Court judge’s rationale, leaving the issue of whether Defendant was ‘under the influence’ … available for litigation in this Court.”

Defendant’s motion to dismiss is denied.

Commonwealth v. Wilkerson Jr., Record No. CR22000946-01, Dec. 13, 2022. City of Newport News Circuit Court (Mills) Opinion and Order. VLW 022-8-078, 11 pp.

VLW 022-8-078

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