Opinion
Record No. 0744-92-3
September 21, 1993
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY NICHOLAS E. PERSIN, JUDGE.
Eric K.G. Fiske, Assistant Attorney General (Mary Sue Terry, Attorney General; K. Marshall Cook, Deputy Attorney General; Richard L. Walton, Jr., Senior Assistant Attorney General; James W. Osborne, Assistant Attorney General, on briefs), for appellants.
(Henry A. Barringer; Galumbeck, Simmons Reasor, on brief), for appellee.
Present: Judges Baker, Benton and Coleman.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal by the Virginia Department of Motor Vehicles (DMV) is from an order of the Circuit Court of Buchanan County (trial court) that set aside the revocation and suspension of Roger Eulis Hale's (appellee) "driver's license, registration certificate and license plates," and ordered that they be reinstated. For the reasons stated, we reverse the decision of the trial court.
In lieu of a transcript, pursuant to Rule 5A:8(C), the parties stipulated to the following facts:
Appellee held a Virginia operator's permit. On April 13, 1991, while in Bristol, Tennessee, he was arrested and charged pursuant to Tennessee law with "driving under the influence by consent." On April 24, 1991, a Tennessee court convicted him of "driving under the influence." Based upon that conviction, the DMV administratively revoked appellee's Virginia operator's permit. That revocation action is the subject of this appeal.
Upon notice of the DMV's action, appellee sought and received from the trial court a temporary stay of the revocation until the validity of the administrative action could be determined. The trial court subsequently granted an extension of the stay "to allow [appellee's] attorney an opportunity to have Tennessee's officials amend or modify their records to reflect a conviction of driving by consent rather than driving under the influence." On January 24, 1992, at the hearing on the merits of his appeal, appellee advised the trial court that the Tennessee court had refused to alter its records. The trial court nevertheless found that appellee had been "convicted in the State of Tennessee of 'driving under the influence by consent,'" which "does not constitute an offense under Section 18.2-266 of the Code of Virginia."
The sole question presented by this appeal is whether substantial evidence in this record supports the revocation order issued by the DMV. See Code § 46.2-410; Code § 9-6.14:17;Turner v. Jackson, 14 Va. App. 423, 429-30, 417 S.E.2d 881, 886 (1992). To answer that question, we must determine (1) whether the record establishes that appellee was convicted of driving under the influence in Tennessee, and (2) if so, whether Tennessee's statute prohibiting such conduct parallels and substantially conforms to Code § 18.2-266, the Virginia statute that prohibits driving under the influence.
The record reveals an affidavit of complaint that shows appellee's signature on a plea of guilty to the offense of "DUI." Further, the Tennessee Orders and Judgment document identified appellee's conviction as a "DUI" conviction. Additionally, the Tennessee court, upon review, declined to amend or modify appellee's conviction order. This record clearly establishes that appellee pled guilty to and was convicted of the offense of driving under the influence of intoxicants.
Code § 46.2-389, Virginia's revocation statute, provides, in pertinent part:
A. The Commissioner shall forthwith revoke, and not thereafter reissue for one year, except as provided in § 18.2-271 or § 18.2-271.1, the driver's license, registration card, and license plates of any resident or nonresident on receiving a record of his conviction . . . of any of the following crimes, committed in violation of either a state law or a valid county, city, or town ordinance paralleling and substantially conforming to a like state law and to all changes and amendments of it: . . .
2. Violation of § 18.2-266. . . .
Thus, when the record establishes a valid out-of-state conviction, as it does in this case, we need only compare the elements of the two statutes. If the elements "parallel and substantially conform," the requirements of Code § 46.2-389 are satisfied, mandating an automatic license revocation by the DMV. We must now determine whether Tenn. Code § 55-10-401, the statute that prohibits driving while under the influence of intoxicants in Tennessee, parallels and substantially conforms to Code § 18.2-266, which prohibits driving a motor vehicle while intoxicated in Virginia.
Code § 18.2-266 reads, in relevant part:
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.10 percent or more by weight by volume as indicated by a chemical test administered in accordance with the provisions of § 18.2-268, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.
Tenn. Code § 55-10-401 provides, in relevant part, as follows:
It shall be unlawful for any person or persons to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state of Tennessee, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is generally frequented by the public at large, while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.
The Tennessee statute prohibits "any person . . . to drive . . . any automobile . . . while under the influence of any intoxicant." Code § 18.2-266 prohibits "any person to drive . . . any motor vehicle . . . (ii) while . . . under the influence of alcohol, [or] (iii) . . . under the influence of any narcotic drug . . . to a degree which impairs his ability to drive or operate any motor vehicle . . . safely. . . ." With respect to driving while under the influence of alcohol, the statutes are clearly "paralleling and substantially conforming."
Although the Tennessee statute does not contain the language, "impairs his ability to drive . . . safely," with respect to drug offenses, we find that proof under Tennessee's statute that a person is "under the influence of any intoxicant" is sufficiently comparable to proof under Code § 18.2-266 that the person's ability to drive safely is impaired. "[A]nother state's law regarding driving while under the influence of intoxicants or drugs [need not] substantially conform in every respect to Code § 18.2-266." Cox v. Commonwealth, 13 Va. App. 328, 331, 411 S.E.2d 444, 446 (1991). The legislature clearly anticipated differences in other state's statutes as it merely required that such statutes "substantially" conform to a like state law. Thus, we find that Tenn. Code § 55-10-401, under which appellee was convicted, parallels and substantially conforms to Code § 18.2-266, and that the revocation of appellee's driver's license by the DMV, pursuant to Code § 46.2-389, was proper.
Although Cox arose under a different statutory section, Code § 46.2-351, both statutes contain the "substantially conforming" requirement with respect to the use of convictions from other states.
Accordingly, the judgment of the trial court is reversed and the order of the DMV reinstated.
Reversed.
The trial judge held that Tennessee's driving under the influence statute did not parallel and substantially conform to Code § 18.2-266, Virginia's driving under the influence statute. Consequently, the trial judge ruled that the Department could not have properly used the Tennessee conviction as a basis upon which to revoke Hale's license to drive. I would affirm the judgment.
At the time pertinent to this appeal, Code § 18.2-266 read as follows:
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.10 percent or more by weight by volume as indicated by a chemical test administered in accordance with the provisions of § 18.2-268, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. For the purposes of this section, the term "motor vehicle" shall include mopeds, while operated on the public highways of this Commonwealth.
The relevant part of Virginia's revocation statute reads as follows:
The Commissioner shall forthwith revoke, and not thereafter reissue for one year, except as provided in § 18.2-271 or § 18.2-271.1, the driver's license, registration card, and license plates of any resident or nonresident on receiving a record of his conviction or a record of his having been found guilty in the case of a juvenile of any of the [several enumerated] crimes, committed in violation of either a state law or a valid county, city, or town ordinance parallelling and substantially conforming to a like state law and to all changes and amendments of it:
Code § 46.2-389(A). Thus, before the Department can revoke a person's driver's license, that person must have been convicted of violating one of the enumerated Virginia offenses or the law of another jurisdiction that parallels and substantially conforms to one of the enumerated Virginia offenses. "The Commonwealth bears the burden of proving that an out-of-state conviction was obtained under laws substantially similar to those of the Commonwealth." Shinault v. Commonwealth, 228 Va. 269, 271, 321 S.E.2d 652, 654 (1984).
Code § 18.2-266 prohibits driving under the influence in Virginia and it is an offense enumerated under Code § 46.2-389(2). The Department contends that Tennessee's statute prohibiting such conduct parallels and substantially conforms to Code § 18.2-266. The relevant part of Tennessee's statute that prohibits driving while under the influence of intoxicants reads as follows, however:
It shall be unlawful for any person or persons to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state of Tennessee, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is generally frequented by the public at large, while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.
The Tennessee charging document in this record recites that a Tennessee police officer stopped a pickup truck and arrested the driver for "DUI." The document further states that because Hale was a passenger and owned the truck, the officer also arrested Hale and charged him with "DUI by consent." The abstract of conviction from Tennessee indicates that Hale was charged with "driving under the influence of alcoholic beverages and/or drugs by consent [and] possession of marijuana." It further indicates that Hale was convicted of "DUI." The abstract does not specify, however, whether the "DUI" conviction was based upon driving under the influence of alcohol or drugs. The lack of specificity is significant because the Tennessee statutory elements proscribe drug and alcohol offenses in a like fashion. However, the Virginia statute does not. The Tennessee statute prohibits "any person . . . to drive . . . any automobile . . . while under the influence of any intoxicant." Tenn. Code § 55-10-401. That prohibition parallels and substantially conforms to the Virginia statute that prohibits "any person to drive . . . any motor vehicle . . . while . . . under the influence of alcohol." Code § 18.2-266 (ii).
The Tennessee statute addresses drug offenses in the same manner as it addresses alcohol offenses. It prohibits "any person . . . to drive . . . any automobile . . . while under the influence of . . . marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system." Tenn. Code § 55-10-401. However, the Virginia statute contains an additional element that must be proved for drug offenses. It prohibits "any person to drive . . . any motor vehicle . . . while such person is under the influence of any . . . drug . . .to a degree which impairs his ability to drive." Code § 18.2-266 (iii) (emphasis added). Thus, in Virginia proving only that a driver is under the influence of a drug does not suffice to prove the offense.
The difference in the elements that must be proved under the Tennessee statute, on the one hand, and under the Virginia statute, on the other, is substantial. A conviction may be had under the Tennessee statute merely by proving that the driver was driving under the influence of any intoxicant. Proving only those elements will not suffice in Virginia. Under the Virginia statute, the evidence must further prove that the driver was impaired to a degree that affected the driver's ability to drive. With such a fundamental difference, the statutes are not "parallelling and substantially conforming" within the meaning of Code § 46.2-389. See Shinault, 228 Va. at 272, 321 S.E.2d at 654. "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 § 18.2-270, the statutes are not 'substantially conforming.'" Cox v. Commonwealth, 13 Va. App. 328, 330-31, 411 S.E.2d 444, 446 (1991).
For these reasons, I would affirm the judgment of the trial court. Accordingly, I dissent.