COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
DENNIS JEREMIAH LAWRENCE
v. Record No. 0598-94-3 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA AUGUST 15, 1995
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jack B. Coulter, Judge Designate
Steven P. Milani (Office of the Public Defender,
on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Dennis Jeremiah Lawrence (appellant) was convicted in a
bench trial of driving after having been adjudicated an habitual
offender in violation of Code § 46.2-357. On appeal, he argues
that the trial court erred in finding the evidence sufficient to
support a felony conviction under Code § 46.2-357(B)(2). Finding
no error, we affirm the trial court.
On December 10, 1993 at 2:40 a.m., Officer M. C. Wrisborne
(Wrisborne) of the Roanoke City Police Department saw appellant
driving a jeep that was weaving and five times crossed the double
yellow line into the on-coming lane. Wrisborne stopped the
vehicle. He detected the odor of alcohol on appellant, saw that
his eyes were bloodshot, and noticed that he was unsteady on his
feet. Appellant failed several field sobriety tests. Appellant
pled guilty to driving under the influence as a result of this
incident.
At the trial on the habitual offender charge, the
Commonwealth introduced into evidence appellant's guilty plea and
conviction on the DWI charge, and his December 8, 1992
adjudication as an habitual offender. 1
In a motion to strike, appellant argued that the evidence
was insufficient to establish that his driving "of itself . . .
endanger[ed] the life, limb, or property of another" and was thus
a felony under Code § 46.2-357(B)(2). The trial court denied the
motion but refused to adopt a per se rule that drunk driving
"endanger[s] the life, limb, or property of another." The trial
court held:
I don't have any problem with [convicting]
anybody who gets behind the wheel of an
automobile as drunk as he was and [is] unable
to keep his automobile in the line of
traffic, not once or twice but four . . . or
five . . . times.
When the sufficiency of the evidence is challenged on
appeal, we view the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
1
The Commonwealth elected to treat this habitual offender
charge as a first offense. Code § 46.2-357(B)(3) provides for
automatic felony punishment if the violation is a second offense:
If the offense of driving while an order
of adjudication as an habitual offender is in
effect is a second or subsequent such
offense, such person shall be punished as
provided in subdivision 2 of this section,
irrespective of whether the offense, of
itself, endangers the life, limb, or property
of another.
2
443, 358 S.E.2d 415, 418 (1987).
Code § 46.2-357(B)(2) provides as follows:
If such driving, of itself, does
endanger the life, limb, or property of
another, such person shall be guilty of a
felony punishable by confinement in the state
correctional facility for not less than one
year nor more than five years or, in the
discretion of the jury or the court trying
the case without a jury, by confinement in
jail for twelve months . . . .
(Emphasis added). This Court recently held in Bishop v.
Commonwealth, 20 Va. App. 206, 455 S.E.2d 765 (1995), as follows:
The distinction between negligent
driving and reckless driving is the critical
element in determining punishment under Code
§ 46.2-357. In defining the conduct that
gives rise to felony punishment under Code
§ 46.2-357(B)(2), the legislature used the
phrase, "driving [that] . . . endanger[s] the
life, limb, or property of another," language
virtually identical to that found in the
statute defining reckless driving.
Id. at 210-11, 455 S.E.2d at 767. The Court rejected a per se
rule that drunk driving deserves felony treatment under Code
§ 46.2-357 and held that, "while evidence of intoxication is a
factor that might bear upon proof of dangerous or reckless
driving in a given case, it does not, of itself, prove reckless
driving." Id. at 210, 455 S.E.2d at 767. "'The essence of the
offense of reckless driving lies not in the act of operating a
vehicle, but in the manner and circumstances of its operation.'"
Kennedy v. Commonwealth, 1 Va. App. 469, 472-73, 339 S.E.2d 905,
907 (1986) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177
S.E.2d 628, 630 (1970)).
3
In Bishop, this Court determined that Bishop's conduct did
not rise to the level required for felony punishment because
"[n]o evidence proved that [he] drove the vehicle in a dangerous
manner." 20 Va. App. at 211, 455 S.E.2d at 767. Bishop was
arrested when he stopped at a toll booth and asked whether he
could turn around because he was lost. Id. at 208, 455 S.E.2d at
766. In Travis v. Commonwealth, 20 Va. App. 410, 457 S.E.2d 420
(1995), this Court held in a case similar to the instant case
that, "[b]ecause appellant was weaving within in his own lane and
into the other lane, the circumstances support a finding that his
driving 'of itself . . . endanger[ed] the life, limb, or property
of another.'" Id. at 417, 457 S.E.2d at 423 (quoting Code
§ 46.2-357(B)(2)).
The record in this case established that appellant's jeep
was weaving and crossed the double yellow line into the on-coming
lane several times, driving behavior that clearly rises to the
level of reckless and that could "endanger the life, limb, or
property of another." Additionally, appellant was intoxicated, a
fact admitted by his guilty plea to driving under the influence.
The trial judge correctly found that: (1) appellant's
intoxication alone was not enough to show that his driving "of
itself . . . endanger[ed] the life, limb, or property of
another," and (2) his intoxication when combined with the
evidence of weaving was sufficient to prove a violation of Code
§ 46.2-357(B)(2).
4
Appellant argues that, for the felony provision of Code
§ 46.2-357(B)(2) to apply, the driving behavior must actually
harm another person or his property or must require another
person to take evasive action to avoid injury or damage to his
property. We disagree. The purpose of the felony habitual
offender statute is to deter reckless driving behavior by those
already deemed to be a danger on the road by increasing the
punishment for those whose driving behavior endangers the public.
The mitigated, misdemeanor punishment was a legislative attempt
to distinguish between those situations in which a barred driver
continues to put the public at risk by driving in a reckless
manner from those where the driving behavior is less culpable.
See, e.g., Bishop, 20 Va. App. at 211, 455 S.E.2d at 767.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
5