COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
VALERIE CUMMINGS
OPINION BY
v. Record No. 0286-96-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Robert E. Battle (Robert E. Battle, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from her conviction for driving while intoxicated,
a third offense within five years, Valerie Cummings contends (1)
that her conviction violated the prohibition against double
jeopardy, and (2) that the Commonwealth was collaterally estopped
from prosecuting her for driving while intoxicated (DWI) because
at an administrative license suspension hearing, the district
court found no probable cause for her arrest. We disagree and
affirm the judgment of the trial court.
On August 7, 1995, Ms. Cummings was arrested for driving
while intoxicated "2nd or subsequent offense," in violation of
Fairfax County Code § 82-1-6. Pursuant to the administrative
license suspension (ALS) provisions, Code § 46.2-391.2, her
driver's license was suspended for seven days. She challenged
the seven-day suspension in Fairfax General District Court and on
August 11, 1995, the district court rescinded the suspension and
wrote "No PC held" on the warrant. See Code § 46.2-391.2(C).
On November 3, 1995, Ms. Cummings appeared for trial on both
charges in the Fairfax General District Court. The Commonwealth
moved to amend the warrant to allege a violation of the state
code and to allege that the DWI charge was for a third or
subsequent offense within five years. Counsel for Ms. Cummings
stated that he had no objection to the amendments, and said,
"I'll stipulate to the prior convictions."
Ms. Cummings then moved in limine that the arresting officer
be prohibited from testifying about the arrest because the
probable cause issue had been decided at the ALS hearing. The
district court granted this motion. Before the case proceeded
further, the Commonwealth's Attorney moved to nolle prosequi both
charges. The district court granted this motion over Ms.
Cummings' objection.
On November 29, 1995, Ms. Cummings was indicted for driving
while intoxicated, a third offense within five years. She was
convicted on this indictment in the trial court.
I. DOUBLE JEOPARDY
Ms. Cummings contends that jeopardy attached when she
stipulated in general district court to her two prior DWI
convictions.
"'In a trial before a court without a jury the danger of
conviction or jeopardy of an accused begins when the trial has
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reached the stage where the Commonwealth begins to introduce its
testimony.'" Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297
S.E.2d 709, 710 (1982) (quoting Rosser v. Commonwealth, 159 Va.
1028, 1036, 167 S.E. 257, 259 (1933)). "'It is generally
recognized that a nolle prosequi, if entered before jeopardy
attached, does not bar further prosecution for the offense.'"
Cantrell v. Commonwealth, 7 Va. App. 269, 281, 373 S.E.2d 328,
333 (1988) (citation omitted).
When the district court granted the Commonwealth's pretrial
motion to nolle prosequi the charges, no witness had been sworn
and the Commonwealth had introduced no evidence. The pretrial
discussion between the district court judge and counsel was in
the nature of an opening statement. See Fields v. Commonwealth,
2 Va. App. 300, 307, 343 S.E.2d 379, 382-83 (1986). Because the
opening statement represents merely counsel's expectation as to
the evidence to be presented and is not testimony, it is not
evidence. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196,
361 S.E.2d 436, 441 (1987). Similarly, resolution of preliminary
matters prior to trial, before witnesses are sworn or testimony
taken, does not place the defendant in jeopardy.
In Martin v. Commonwealth, 242 Va. 1, 406 S.E.2d 15 (1991),
the defendant argued that the trial court's pretrial dismissal of
an attempted capital murder charge, due to his earlier conviction
for a lesser included offense, barred his subsequent prosecution
for attempted murder. The Supreme Court noted that "jeopardy
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attaches only after a jury is empaneled and sworn in a jury trial
or the first witness is sworn in a bench trial." Id. at 8, 406
S.E.2d at 18. The Supreme Court ruled that because the dismissal
occurred before the swearing of any witness or the empaneling of
jurors, it "[could not] form the basis of a double jeopardy bar
to the prosecution for attempted murder." Id.
In this case, the district court's pretrial granting of the
Commonwealth's motion to nolle prosequi the charges occurred
before the Commonwealth presented any evidence, before any
witness was sworn, and therefore, before jeopardy attached.
Ms. Cummings' mere offer to stipulate the prior convictions
was not the equivalent of the Commonwealth's introduction of
testimony. The record manifests neither that the offer was
accepted nor that the prior convictions were proffered as
evidence. See Low v. Commonwealth, 11 Va. App. 48, 50, 396
S.E.2d 383, 384 (1990); Hudson v. Commonwealth, 9 Va. App. 110,
112, 383 S.E.2d 767, 768-69 (1989) (noting that the Commonwealth
is not required to accept a defendant's stipulation and is
entitled to prove the indictment). Thus, the trial court
correctly ruled that the double jeopardy prohibition did not bar
the prosecution.
II. COLLATERAL ESTOPPEL
Ms. Cummings next contends that the Commonwealth was
collaterally estopped from prosecuting her for DWI following the
district court's finding at the ALS hearing that no probable
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cause supported Cummings' arrest. We disagree.
Our decision is controlled by Jones v. City of Lynchburg, 23
Va. App. 167, 474 S.E.2d 863 (1996). Jones was arrested for DWI
and his driver's license was suspended administratively for
seven days. See Code § 46.2-391.2. In an ALS hearing, the
district court found that the police lacked probable cause to
arrest Jones and rescinded the license suspension. Affirming
Jones' DWI conviction, we said:
Because the license suspension hearing was a
civil proceeding, "[a]pplication of the
doctrine of collateral estoppel is not
constitutionally mandated" [and] . . .
"[b]ecause the 'issues of ultimate fact' in
an administrative hearing held pursuant to
[Code § 46.2-391.2] are different from those
in a prosecution for the offense of driving
while intoxicated, the doctrine of collateral
estoppel does not bar . . . [a] subsequent
prosecution for driving while intoxicated."
Jones, 23 Va. App. at 171-72, 474 S.E.2d at 865 (citations
omitted).
The judgment of the trial court is affirmed.
Affirmed.
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