COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 2512-98-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 14, 2000
ROBERT WAYNE LOWE
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carlton Penn, Judge Designate
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellant.
No brief or argument for appellee.
The Commonwealth appeals a ruling by the trial court that
Robert Wayne Lowe's 1991 conviction in Maryland for driving
while intoxicated may not be considered as a predicate offense
in considering whether Lowe is an habitual offender within the
intent of Code §§ 46.2-351 et seq. The Commonwealth argues that
the trial court relied upon inapplicable Maryland case law in
reaching its conclusion and that the trial court misinterpreted
Virginia law. We agree, and reverse the decision of the trial
court.
FACTS
On April 21, 1998, the General District Court of Loudoun
County adjudged Lowe an habitual offender pursuant to a show
cause proceeding under former Code §§ 46.2-351.2 – 46.2-355. 1 He
appealed that decision to the Circuit Court of Loudoun County.
The circuit court heard the case on the record from the general
district court, which included the Department of Motor Vehicles'
("DMV") certification of Lowe's driving record and copies of
pertinent Maryland statutes and cases. No additional evidence
was taken or considered by the circuit court.
The circuit court issued a letter opinion, authored by
Judge Thomas D. Horne, on August 25, 1998, which stated that
Lowe was not an habitual offender under the Virginia Habitual
Offender Act ("Act"). The Act as it stood at the time of the
alleged offenses provided, inter alia, that three or more
convictions, within a ten-year period, of driving or operating a
motor vehicle while under the influence of intoxicants in
violation of Code § 18.2-266 rendered the driver in question an
habitual offender. Code § 46.2-351.1(b). The DMV certification
established that Lowe had four convictions for driving under the
influence of alcohol: the first in Prince William County,
Virginia, on July 2, 1985; the second in Loudoun County,
Virginia, on April 27, 1990; the third in the State of Maryland,
on March 6, 1991; and the fourth in Loudoun County, on October
23, 1997, the conviction giving rise to the present appeal.
Lowe argued below that the Maryland conviction should not be
1
Repealed by Acts of Assembly 1999, cc. 945, 987.
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considered by the court, because persons may be convicted under
the Maryland statute for driving non-motor vehicles while
intoxicated. See Code of Maryland Ann. § 21-902; Code
§ 18.2-266. Lowe cited Richards v. Goff, 338 A.2d 80 (Md.
1975), and Moon v. Weeks, 333 A.2d 635 (Md. 1975), for the
proposition that Maryland courts include within the term
"vehicle" such non-motor vehicles as bicycles and children's
sleds. On that ground, Lowe argued that the Maryland drunk
driving statute did not "substantially conform" to the Virginia
Code § 18.2-266, pursuant to Code § 46.2-351.1, in accordance
with the standards outlined in Commonwealth v. Ayers, 17
Va. App. 401, 437 S.E.2d 580 (1993) and Honaker v. Commonwealth,
19 Va. App. 682, 454 S.E.2d 29 (1995). Lowe thus contended his
Maryland conviction was not a predicate offense under Code
§ 46.2-351 and that his conviction as an habitual offender
therefore should be reversed. 2
The trial court, citing Cox v. Commonwealth, 13 Va. App.
328, 411 S.E.2d 444 (1991), agreed with Lowe's reasoning, and
concluded that
[t]here is nothing in the record to indicate
that [when Lowe violated the Maryland drunk
driving statute] he was driving a motor
vehicle. . . . When the [c]ourt examines
the entire statutory prohibition of the
Maryland statute, it is readily apparent
2
Without the Maryland offense, Lowe did not have three or
more drunk driving convictions within a ten-year period.
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that the Maryland statute permits
convictions not permitted under Code
§ 18.2-266.
(Emphasis added). The trial court also declined to accept the
DMV certification of Lowe's Maryland conviction as evidence that
the specific prohibition of the Maryland statute substantially
conformed to Code § 18.2-266, and held that the predicate
offense was not established under Code § 46.2-351. For the
reasons that follow, we reverse the court's decision.
Whether the Maryland statute in question fails to conform
to the relevant Virginia statutes is a matter of first
impression. Maryland's drunk driving statute refers only to
"vehicles," unlike the Virginia statute, which specifically
penalizes operation of motor vehicles by intoxicated persons.
Code § 18.2-266 ("It shall be unlawful for any person to drive
or operate any motor vehicle . . . while such person is under
the influence of alcohol."); cf. Md. Code Ann. § 21-902 ("A
person may not drive or attempt to drive any vehicle while
intoxicated."). According to the Maryland Code, "'vehicle'
means any device in, on, or by which any individual or property
is or might be transported or towed on a highway." Md. Code
Ann. § 11-176. In contrast, the Maryland Code defines "motor
vehicle" as "a vehicle that . . . [i]s self-propelled or
propelled by electric power obtained from overhead electrical
wires." Md. Code Ann. § 11-135. The Maryland courts first
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recognized the significance of this statutory distinction in
Moon, a civil case in which the Maryland Court of Appeals held
that while a child's sled did not constitute a "motor vehicle,"
the sled nevertheless was a "vehicle" for the purpose of
applying the state's traffic laws. See Moon, 333 A.2d at
641-42.
Virginia law makes essentially the same distinction,
however. Code § 46.2-100 provides definitions to be applied
with respect to the motor vehicle laws. It defines "vehicle" as
"every device in, on, or by which any person or property is or
may be transported or drawn on a highway, except devices moved
by human power . . . ." "Motor vehicle" is defined as "every
vehicle . . . which is self-propelled or designed for
self-propulsion . . . ." Thus, Virginia, as does Maryland,
considers the category of "motor vehicle" to be a subset of
"vehicle," and this distinction has legal significance. See,
e.g., Welborn v. Wyatt, 175 Va. 163, 168, 7 S.E.2d 99, 101
(1940); Code § 46.2-341.4 (defining "commercial motor vehicle"
as "every motor vehicle, vehicle, or combination of vehicles
used to transport passengers or property . . . .").
The critical difference between Virginia and Maryland law,
then, is the fact that the Virginia drunk driving statute refers
specifically to motor vehicles, whereas the Maryland statute
refers only to "vehicles." Despite the opinion of the court
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below, and the argument Lowe made before that court, no Maryland
case law addresses whether operation of a non-motor vehicle by
an intoxicated person violates the state's drunk driving
statute. 3
In considering whether the plain meaning of Maryland Code
§ 21-902 might permit driving while intoxicated prosecutions of
intoxicated persons found operating non-motor vehicles, in
contrast to conduct prohibited by Code § 18.2-266, we are guided
3
We agree with the Commonwealth that the Maryland case law
cited by the trial court does not stand for the propositions
claimed by the court. Neither Richards nor Moon is on point,
and neither bears upon whether the Maryland drunk driving
statute fails to substantially conform to the Virginia statute.
Those two cases merely stand for the proposition that such
non-motor vehicles as bicycles and sleds nevertheless are
"vehicles" when operated on Maryland roads, just as such devices
become vehicles when operated upon Virginia highways, pursuant
to the definition in Code § 46.2-100. The court stated that
Richards applied the Maryland drunk driving statute "to sanction
the operation of a child's sled while [the operator was]
intoxicated." However, Richards was a civil tort case involving
neither a sled nor a drunk driver; rather, the case concerned a
child on a bicycle injured by the sober driver of an automobile.
The Maryland court held that because a bicycle was a "vehicle"
within the meaning of Maryland Code, Art. 66 1/2, § 11-404, the
child was contributorily negligent as the driver of a "vehicle"
who failed to yield the right-of-way to on-coming traffic. See
Richards, 338 A.2d at 85.
The Commonwealth claims the court cited Moon for a similar
proposition. The only Maryland case cited in the trial court's
opinion is Richards, however. Insofar as Moon may assist in the
determination of this appeal, Moon also did not involve a drunk
driving conviction. Like Richards, it was a civil tort action
concerning a child riding a sled on an icy street who was struck
by an automobile. As in Richards, the court in Moon found that
the child was the operator of a "vehicle" on a public street,
and consequently was subject to consideration of contributory
negligence in her collision with the automobile for her failure
to yield the right-of-way. See 333 A.2d at 641-43.
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by our previous decisions in Cox, 13 Va. App. 328, 411 S.E.2d
444, Ayers, 17 Va. App. 401, 437 S.E.2d 580, and Honaker, 19
Va. App. 682, 454 S.E.2d 29.
In Cox, 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
[i]f 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
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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.
Id. (emphasis added).
Subsequently, in Ayers, we addressed the appellee's
adjudication as an habitual offender based on three convictions
under North Carolina law. Our focus in Ayers was on the North
Carolina and Virginia statutes, which we found not to
substantially conform on their face. We noted that while Code
§ 18.2-266 created a rebuttable presumption that a driver found
to have a blood alcohol level ("BAL") of .10% at the time he was
tested had violated the statute, North Carolina's counterpart,
N.C.Gen.Stat. § 20-138.1(a)(2), created a conclusive presumption
that one found to have BAL of .10% had violated the law. See
Ayers, 17 Va. App. at 404, 437 S.E.2d at 582. On that ground,
we found the North Carolina statute did not substantially
conform to Virginia law and that the appellee's conviction under
North Carolina law could not serve as a predicate offense for
adjudication as an habitual offender under Code § 46.2-351.
Finally, in Honaker, 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,
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noting that Honaker concerned the appellant's conviction under
W.Va. Code § 17C-5-2 for "driv[ing] and operat[ing] 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 id.
at 685-86, 454 S.E.2d at 31.
Turning to the facts of the present case, we find that
Maryland's statutory law prohibiting driving while intoxicated,
as narrowed by the Driver License Compact ("Compact") which both
Maryland and Virginia have adopted, substantially conforms with
Code § 18.2-266. See Tharpe v. Commonwealth, 18 Va. App. 37,
43, 441 S.E.2d 228, 232 (1994) ("'Two statutes which are closely
interrelated must be read and construed together and effect
given to all of their provisions. They should be construed, if
possible, so as to harmonize, and force and effect should be
given the provisions of each.'" (quoting ACB Trucking, Inc. v.
Griffin, 5 Va. App. 542, 547-48, 365 S.E.2d 334, 337-38 (1988)
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(citation omitted))); Nelson v. County of Henrico, 10 Va. App.
558, 561, 393 S.E.2d 644, 646 (1990) ("Statutes must be
construed consistently with each other and so as to reasonably
and logically effectuate their intended purpose." (citation
omitted)).
The Compact is codified at Code § 46.2-483, et seq., and at
Maryland Code Ann. § 16-703. The State of Maryland and the
Commonwealth of Virginia have agreed to the terms of the Compact
and have incorporated those terms verbatim into their respective
bodies of statutory law. Article III of the Compact provides
that foreign drunk driving convictions are to be reported to the
home state of the person convicted. Article II defines
"conviction" as "conviction of any offense related to the use or
operation of a motor vehicle." (Emphasis added). The language
of the Compact is identical in the codes of the two states. See
Maryland Code Ann. § 16-703; Va. Code. § 46.2-483, et seq.
Thus, any conviction reported from Maryland to DMV must, of
necessity, be limited to motor vehicle use while intoxicated, in
compliance with Articles II and III of the Compact. We
therefore hold that the Maryland statutes governing the offense
of driving while intoxicated substantially conform to Virginia
law for the purposes of Code § 46.2-351. 4
4
Because we decide the issue on appeal on this ground, we
need not reach the Commonwealth's contention that the trial
judge erred in declining to find that the certified transcript
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The decision of the trial court is, accordingly, reversed,
and this case is remanded for proper and appropriate proceedings
consistent with this opinion.
Reversed and remanded.
of Lowe's driving record presumptively established the predicate
offenses, including the Maryland offense. See generally Dicker
v. Commonwealth, 22 Va. App. 658, 661, 472 S.E.2d 655, 657
(1996) (Commonwealth establishes a prima facie presumption that
driver's adjudication as habitual offender was valid by
introducing certified DMV transcript indicating three or more
drunk driving convictions within ten-year period); Code
§ 46.2-352.
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