SUMMARY

Defendant was adjudicated an habitual offender. He argued that the trial court erred in finding that an out-of-state conviction substantially conformed to the provisions of Code Sec. 18.2-266 (Circuit Court of Alleghany County, Duncan M. Byrd, Jr., Judge).

The Court of Appeals reversed, holding that the out-of-state conviction for an offense that did not substantially conform to the provisions of Code Sec. 18.2-266 could not be used in the habitual offender adjudication.

Reversed and dismissed.

OPINION

BARROW, J.

This appeal is from a finding by the trial court that the appellant is an habitual offender under Code Sec. 46.2-351. We hold that the trial court erred in finding that a West Virginia ordinance substantially conforms to provisions of Code Sec. 18.2-266 because it permits convictions for acts which could not be the basis for convictions under Code Sec. 18.2-266.

The Circuit Court of Alleghany County found that the appellant is an habitual offender. This finding was based on a certified abstract from the Virginia Division of Motor Vehicles showing that appellant had one Virginia conviction and two West Virginia convictions for driving while intoxicated. The West Virginia convictions were obtained under a city ordinance of Lewisburg, West Virginia. Records introduced of the West Virginia convictions reflect only that the appellant "did unlawfully operate" an automobile "upon a public street or highway. . . and . . . commit[ted] . . . D.U.I. 1st" in violation of both state statute and local ordinance.

At the hearing, appellant argued that the Lewisburg ordinance did not conform to the Virginia statutes regarding driving while under the influence of alcohol because the Lewisburg ordinance was substantially broader, encompassing additional offenses. The trial court ruled that the Lewisburg ordinance was substantially similar to Virginia Code Sections 18.2-266 and 18.2-269, and declared the appellant an habitual offender.

Copies of the applicable Lewisburg city ordinance were submitted to the trial court and were made a part of the record of this appeal. Article IV of the Lewisburg city code addresses driving while under the influence of alcohol or drugs, reckless driving and related provisions. Certain conduct not described by Code Sec. 18.2-226 is declared unlawful by Article IV of the Lewisburg City Code: (1) driving a vehicle while being a habitual user of any controlled substance; (2) knowingly permitting one's vehicle to be driven by another who is under the influence of alcohol; and (3) knowingly permitting one's vehicle to be driven by another who is an habitual user of a controlled substance.

In Shinault v. Commonwealth, 228 Va. 269, 321 S.E.2d 652 (1984), the Supreme Court held that two state statutes are not substantially conforming where one, a North Carolina statute, required a conclusive presumption of guilt when the offender possessed a blood-alcohol level of .10, while the other, a Virginia statute, allowed for a rebuttable presumption of guilt under the same circumstances.

The rationale in Shinault is instructive. Although two statutes may have "a general likeness" to one another, the effect of the differing presumptions is substantial. Under the North Carolina statute, one would necessarily be guilty of an offense if found to have been driving with a blood-alcohol content of .10. However, under the Virginia statute, one would not necessarily be found guilty of an offense even though having been found to have committed the same act. In other words, if a person may be convicted of an offense under another jurisdiction's statute for conduct which might not result in a conviction under Code Sec. 18.2-270, the statutes are not "substantially conforming."

Moreover, to allow a conviction in another state to be the basis for a finding that a person is an habitual offender would expand Code Sec. 46.2-351 beyond its stated limits if the conviction in the other state was based on an act which would not be a violation of Code Sec. 18.2-266. The General Assembly expressly designated certain traffic offenses which should be considered in determining if one is an habitual offender. See Code Sec. 46.2-351. One of these is driving or operating a motor vehicle while under the influence in violation of Code Sec. 18.2-266. See Code Sec. 46.2-351(1)(b). If a conviction in another state is based on conduct which is not a violation of Code Sec. 18.2-266, then to consider it under Code Sec. 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized. Therefore, another state's law permitting a conviction for an act not constituting an offense under Code Sec. 18.2-266 is not substantially conforming under Code Sec. 46.2-351.

(1) This does not mean that another state's law regarding driving while under the influence of intoxicants or drugs must substantially conform in every respect to Code Sec. 18.2-266. Only that prohibition of the other state's law under which the person was convicted must substantially conform.

In this case, the record of appellant's convictions in West Virginia indicates only that he was convicted under a state statute and a city ordinance. This description permits us to conclude only that the appellant committed the offense while operating a motor vehicle. It does not identify the specific provision of the ordinance he violated. Consequently, we must examine the entire statutory prohibition to see if it permits convictions not permitted under Code Sec. 18.2-266.

The Lewisburg city ordinance includes several prohibitions against conduct which would not be violations of Code Sec. 18.2-266; therefore, we are unable to say that the conduct upon which the appellant's convictions were based was that which is not included within the prohibitions of Code Sec. 18.2-266. Thus, for the purposes of determining whether the appellant is an habitual offender, the applicable provisions of the Lewisburg city ordinance are not in this case substantially conforming.

The trial court erred in concluding that the ordinance was substantially conforming and in fInding the appellant an habitual offender. The judgment declaring the appellant an habitual offender is reversed and the information filed is dismissed.

Reversed and dismissed.

Bray, J. and Elder, J., concurred.