VA Code 18.2-266 Interpretation

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. The Court 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. In McBride v. Commonwealth, 24 Va. App. 30, 480 S.E.2d 126 (1997), the defendant appealed his conviction of second offense of driving while under the influence in violation of Code 18.2-266. See McBride, 24 Va. App. at 32, 480 S.E.2d at 127. The issue on appeal was whether the Commonwealth proved the first offense. See id. at 33, 480 S.E.2d at 127. The Commonwealth attempted to prove the prior offense by offering a certified copy of a record from Roanoke City General District Court. See McBride, 24 Va. App. at 32, 480 S.E.2d at 127. The record was a warrant of arrest charging the defendant with driving under the influence. See id. The second page of the warrant contained a printed form that was signed by the trial judge and indicated appellant had pled not guilty. See id. It also indicated that appellant was sentenced to thirty days in jail, fined $ 300, and received a suspension of his operator's license for six months. See id. However, the form did not indicate that the appellant was found guilty of the charge. See 24 Va. App. at 32-33, 480 S.E.2d at 127. The Court held the evidence was insufficient to establish a prior conviction because the warrant did not indicate that appellant was convicted under Code 18.2-266, and the Commonwealth offered no other competent evidence. See id. at 34, 480 S.E.2d at 128.