Cummings v. Commonwealth

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August 11, 1995, the district court rescinded the suspension and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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