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DUI Conviction In Another State Virginia

In Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991), one of the predicate offenses for the appellant's adjudication as an habitual offender was a conviction under a local ordinance of Lewisburg, West Virginia.

Although a portion of the ordinance was generally consistent with Code § 18.2-266 in its prohibition of driving while under the influence of alcohol, it contained additional subsections criminalizing conduct beyond the scope of Code § 18.2-266.

See Cox, 13 Va. App. at 331, 411 S.E.2d at 446; Lewisburg City Code § 18-85.

We held that if a conviction in another state is based on conduct which is not a violation of Code § 18.2-266, then to consider it under Code § 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized. Cox, 13 Va. App. at 331, 411 S.E.2d at 446.

We stated that because the record before us in Cox failed to indicate which portion of the ordinance the appellant had violated, we were unable to determine that the West Virginia law under which the appellant had been convicted "substantially conformed" to Code § 18.2-266; consequently, it could not stand as a predicate offense under Code § 46.2-351.

See id. However, we cautioned that our holding did 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 § 18.2-266. Only that portion of the other state's law under which the person was convicted must substantially conform.

In Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995), we again addressed the conviction of an appellant under West Virginia law in determining whether that conviction could serve to support an habitual offender adjudication.

We distinguished Honaker from the facts of Cox, noting that Honaker concerned the appellant's conviction under W.Va. Code § 17C-5-2 for "driving and operating a motor vehicle upon a public highway of West Virginia while under the influence of alcohol . . . ." 19 Va. App. at 685, 454 S.E.2d at 31.

We noted that, unlike Cox, the record disclosed the specific prohibition under West Virginia law upon which the appellant was convicted, viz. driving and operating a motor vehicle while under the influence of alcohol.

We held that the provision of the West Virginia statute under which the appellant had been convicted substantially conformed to Code § 18.2-266, and therefore it could stand as a predicate offense for an habitual offender adjudication under Code § 46.2-351. See 19 Va. App. at 685-686, 454 S.E.2d at 31.

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