Mejia v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Fitzpatrick and Overton
Argued at Richmond, Virginia

JACINTO MEJIA
OPINION BY
v. Record No. 1366-95-4 JUDGE JERE M. H. WILLIS, JR.
SEPTEMBER 10, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
David Bernhard (Bernhard & Gardner, on
brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

On appeal from his conviction of operating a motor vehicle

after illegally consuming alcohol, in violation of Code

§ 18.2-266.1(A), Jacinto Mejia contends that the trial court

erred in denying his motion to strike the evidence, which was

grounded on the Commonwealth's alleged failure to prove that his

consumption of alcohol was illegal. We find no error and affirm

the judgment of the trial court.

On November 27, 1994, a Fairfax police officer stopped an

automobile being operated by Mejia, after the officer observed

that the vehicle was speeding 50 mph in a 35 mph zone and was

"frequently weaving across the double yellow line." Approaching

the vehicle, the officer "detected a moderate odor of alcohol."

At the officer's direction, Mejia satisfactorily performed three

field sobriety tests. A properly conducted breath alcohol
analysis established that his breath alcohol content was 0.03

grams per 210 liters of breath. Mejia was less than twenty-one

years of age.

At the conclusion of the Commonwealth's evidence, Mejia

moved to strike the evidence on the ground that the Commonwealth

had failed to prove that his consumption of alcohol was illegal.

The trial court denied the motion. Mejia rested without

producing evidence and renewed the motion, which the trial court

again denied.
Mejia contends that because Code § 18.2-266.1(A) proscribes

the operation of a motor vehicle by a person under the age of

twenty-one "after illegally consuming alcohol," the legislature

intended to make the illegality of the subject operator's alcohol

consumption an express element of the offense. He argues that

because the Commonwealth failed to prove that his consumption of

alcohol had been illegal, the Commonwealth thereby failed to

prove an element of the offense charged, rendering the proof

insufficient to support his conviction.

The Commonwealth contends that the word "illegally" is mere

surplusage which, if read to impose a required element of proof,

would frustrate the legislature's plain intent and would produce

inconsistent and often absurd results. The Commonwealth argues

that the word "illegally" should be construed to describe the

general illegality of the conduct proscribed by the statute.

We find neither position persuasive.
Well established "principles of statutory

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 construction require us to ascertain and give
effect to the legislative intent." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419
S.E.2d 422, 424 (1992). "Where the language
is plain and unambiguous, we are bound by the
plain statement . . . ." Commonwealth v.
Meadows, 17 Va. App. 624, 626, 440 S.E.2d
154, 155 (1994). "[W]ords and phrases used
in a statute should be given their ordinary
and usually accepted meaning unless a
different intention is fairly manifest."
Woolfolk v. Commonwealth, 18 Va. App. 840,
847, 447 S.E.2d 530, 534 (1994). "Criminal
statutes are to be 'strictly construed
against the Commonwealth and in favor of [a]
citizen's liberty.'. . . A penal statute must
be construed so as to proscribe only conduct
which the legislature clearly intended to be
within the statute's ambit." King v.
Commonwealth, 6 Va. App. 351, 354-55, 368
S.E.2d 704, 706 (1988).

Brooks v. Commonwealth, 19 Va. App. 563, 566, 454 S.E.2d 3, 4-5

(1995). If the several provisions of a statute suggest a

potential for conflict or inconsistency, we construe those

provisions so as to reconcile them and to give full effect to the

expressed legislative intent. See Cooper v. Occoquan Land Dev.

Corp., 8 Va. App. 1, 6, 377 S.E.2d 631, 633 (1989).

"Illegally," as used in the first sentence of Code

§ 18.2-266.1(A), plainly modifies "consuming alcohol." Thus, the

first sentence of the statute, the general definition of the

offense, prohibits the operation of a motor vehicle by a person

under the age of twenty-one who has illegally consumed alcohol.

The illegality of the alcohol consumption is expressly made an

element of the general definition of the offense. The wisdom of

that inclusion is not for us to decide. Our task is to give

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effect to the legislature's intent.

However, the second sentence of the statute must be read in

conjunction with, and consistently with, the first. That

sentence provides that "any such person" with a blood alcohol

concentration of 0.02 grams or more per 210 liters of breath

"shall be in violation of this section." We construe "any such

person" to mean "any person under the age of twenty-one." Such a

person who operates a motor vehicle while having the specified

blood alcohol concentration is deemed by the provision of the

second sentence to be in violation of the statute.
The Commonwealth argues that consumption of alcohol is a

type of possession and that because possession of alcohol by a

person less than twenty-one years of age is generally illegal,

consumption of alcohol by such a person is correspondingly

generally illegal. Mejia correctly observes that despite the

general prohibition against possession and consumption, there

exist circumstances under which possession and consumption of

alcohol by a person less than twenty-one years of age may be

legal. We perceive no need to catalog those circumstances in

this opinion. However, we note that medicinal and sacramental

possession and consumption of alcohol are examples.

We conclude that the offense defined by the first sentence

of Code § 18.2-266.1(A) is proved if the Commonwealth proves that

a person under the age of twenty-one years operates a motor

vehicle after consuming alcohol, in any amount, and that the

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consumption was illegal. We construe the second sentence to

provide the establishment of a prima facie case upon proof that a

person under twenty-one years of age operates a motor vehicle

while having the prescribed level of blood alcohol concentration,

casting upon the accused against whom such a prima facie case is

established the burden of going forward with evidence raising a

reasonable doubt as to the illegality of his alcohol consumption.

At the time of his arrest, Mejia was under twenty-one years

of age and he operated a motor vehicle while having a blood

alcohol concentration of 0.02 grams or more per 210 liters of

breath. He produced no evidence suggesting that his consumption

of alcohol had not been illegal. Thus, the prima facie case
raised by the Commonwealth's proof sufficiently supports Mejia's

conviction, and the trial court did not err in denying his motion

to strike the evidence.

The judgment of the trial court is affirmed.

Affirmed.

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Benton, J., dissenting.

In pertinent part, Code § 18.2-266.1(A) provides as follows:

It shall be unlawful for any person under
the age of twenty-one to operate any motor
vehicle after illegally consuming alcohol.
Any such person with a blood alcohol
concentration of 0.02 percent or more by
weight by volume or 0.02 grams or more per
210 liters of breath but less than 0.08 by
weight by volume or less than 0.08 grams per
210 liters of breath as indicated by a
chemical test administered as provided in
this article shall be in violation of this
section.

The Commonwealth proved that Jacinto Mejia, who was under the age

of twenty-one, operated a motor vehicle with a breath alcohol

content of .03 grams per 210 liters of breath. Because this

conduct alone does not fulfill all the elements necessary to

support a conviction under Code § 18.2-266.1(A), I dissent.

Mejia contends that the statute required the Commonwealth to

prove that he "illegally" consumed alcohol. The Commonwealth

contends that "the word 'illegally' is surplusage." Although the

majority disagrees with the Commonwealth, the majority upholds

the conviction by constructing an analysis not argued by either

party and finding that under the second sentence of the statute

Mejia had the burden of proving "a reasonable doubt as to the

illegality of his alcohol consumption." I believe the majority

incorrectly reads and applies the statute.

In Virginia, statutory interpretation is governed by the

following well established principles:

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 If [a statute's] language is clear and
unambiguous, there is no need for
construction by the court; the plain meaning
and intent of the enactment will be given it.
When an enactment is clear and unequivocal,
general rules for construction of statutes of
doubtful meaning do not apply. Therefore,
when the language of an enactment is free
from ambiguity, resort to legislative history
and extrinsic facts is not permitted because
we take the words as written to determine
their meaning. And, when an enactment is
unambiguous, extrinsic legislative history
may not be used to create an ambiguity, and
then remove it, where none otherwise exists.

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)

(citations omitted). An equally well established principle

mandates that when "the statute in question is penal in nature,

it must be strictly construed against the state and limited in

application to cases falling clearly within the language of the

statute." Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d

337, 338 (1983).

To reach the result the Commonwealth urges, the word

"illegally" must be read out of the statute. Words in a statute

"cannot be ignored" merely to reach a desired result. Board of

Supervisors v. Wood, 213 Va. 545, 548, 193 S.E.2d 671, 674

(1973). The use of the word "illegally" in the statute adds

content and imparts meaning to the statute and its use does not

lead to an "absurd result." Norfolk Airport Authority v.

Nordwall, 246 Va. 391, 395, 436 S.E.2d 436, 438 (1993).

I agree with the majority that "illegally" modifies

"consuming alcohol." This reading of the statute does not lead

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to an absurd result because a person under twenty-one years of

age may legally consume alcohol in various circumstances. For

example, persons under the age of twenty-one may lawfully consume

alcohol through medicine intake or during religious sacrament,

such as the Eucharist or the Seder. See 42 U.S.C. § 2000 bb, et

seq. (The "Religious Freedom Restoration Act"). Also, many

states, including states that border Virginia, allow minors to

lawfully consume alcohol in their homes under various

circumstances. See, e.g., State v. Mihm, 634 N.E.2d 703 (Ohio

Ct. App. 1994); Md. Ann. Code art. 27, § 401A; W. Va. Code

§ 60-3-22a; Colo. Rev. Stat. Ann. § 18-13-122; Or. Rev. Stat.

§§ 471.410 and 471.430; Wash. Rev. Code Ann. § 66.44.270.

Indeed, no Virginia law bars a person under the age of twenty-one

from consuming an alcoholic beverage at home under the

supervision of his or her parent. Cf. Code §§ 4.1-200 and

4.1-305.

Because the legislature created a specific statutory offense

for a person under the age of twenty-one who has driven after
illegally consuming alcohol, we cannot say that such a statute

reaches an absurd result. We cannot rewrite the statute by

judicial fiat. Without proof that a person under twenty-one

years of age illegally consumed alcohol, that person cannot be

convicted under Code § 18.2-266.1(A). Virginia has other

statutes that prohibit driving while intoxicated. See Code

§ 18.2-266.

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 The Commonwealth argues that the legislature did not intend

to impose liability only for illegal consumption. Nothing in the

statute supports that assertion. The plain language of Code

§ 18.2-266.1(A) imposes liability only for "illegally consuming

alcohol." Even though the result of a statute may not be what

the Commonwealth believes the legislature intended, a court

cannot distort or rewrite the statute. See Smith v. Richmond

Memorial Hospital, 243 Va. 445, 454, 416 S.E.2d 689, 694, cert.
denied, 506 U.S. 967 (1992). The word, "illegally," itself and

its placement in the statute are "clear and unambiguous."

Nordwall, 246 Va. at 395, 436 S.E.2d at 438. Thus, we must

presume that effect was intended to be given to that word as well

as each of the words in the statute. Rockingham Cooperative Farm

Bureau v. City of Harrisonburg, 171 Va. 339, 344, 198 S.E. 908,

910 (1938); King v. Empire Collieries Co., 148 Va. 585, 590, 139

S.E. 478, 479 (1927). If there is any doubt concerning the

meaning of a statute, "we are guided by the fundamental principle

of statutory construction that penal statutes '"must be strictly

construed against the state and limited in application to cases

falling clearly within the language of the statute."'" Simmons

v. Commonwealth, 16 Va. App. 621, 624, 431 S.E.2d 335, 336

(1993)(citations omitted).

In order to uphold what it deems to be the intent of the

legislature, the majority concludes that the term "any such

person" at the beginning of the second sentence modifies only the

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words "any person under the age of twenty-one" in the first

sentence. In adopting this interpretation, the majority provides

no explanation as to why "any such person" refers only to a

portion of the first sentence. I believe this reading of the

statute to be flawed.

"Any such person" can only logically refer to a person under

age twenty-one who operates a vehicle after illegally consuming

alcohol, the subject person specified in the first sentence.

Following immediately upon the first sentence, the phrase, "any

such person," can only logically refer to a person fulfilling the

entire proscription upon persons described in the first sentence.

Contrary to the implication in the majority opinion, the second

sentence of the statute is read consistent with the first

sentence when "any such person" is read to refer to "any person

under the age of twenty-one [who] operate[s] a motor vehicle

after illegally consuming alcohol."
The majority interpretation creates an ambiguity where none

exists. Only by truncating the descriptive reference of the

first sentence of the statute does the majority achieve the

ambiguity that is necessary to its analysis. That unnecessary

ambiguity then provides the foundation for the majority's

conclusion that the legislature constructed a statute that

requires interpretation by reference to legislative intent.

Even if the statute contained such an ambiguity, the

majority's ultimate conclusion does not follow. Penal statutes

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"should be construed strictly against the Commonwealth and in

favor of the accused." Frere v. Commonwealth, 19 Va. App. 460,

464, 452 S.E.2d 682, 685 (1995). Thus, if the statute contains

two equally likely interpretations, the statute must always be

interpreted to favor a citizen's liberty. Brooks v.

Commonwealth, 19 Va. App. 563, 566, 454 S.E.2d 3, 5 (1995). The

majority's interpretation of Code § 18.2-266.1(A) contains fewer

elements and imposes a lesser burden on the Commonwealth than the

equally reasonable alternative interpretation of the statute I

have described. Thus, I believe that the majority's holding also

violates this basic rule of statutory construction.
Furthermore, only a strained interpretation of the statute

shifts to the accused the burden of proving, as the majority

terms it, "reasonable doubt as to the illegality of his alcohol

consumption." That interpretation removes from the Commonwealth

its constitutionally imposed burden of proving beyond a

reasonable doubt every element of the offense. In re Winship,

397 U.S. 358, 364 (1970); Clemmer v. Commonwealth, 208 Va. 661,
666, 159 S.E.2d 664, 667 (1968). It also unlawfully permits a

conviction to be had based upon a presumption rather than proof

and upon unlawfully shifting the burden of proof to an accused.

See Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979). We cannot

presume that an element of an offense has been proven beyond a

reasonable doubt when no evidence regarding the "illegal"

consumption has been introduced.

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 Because the evidence contains no evidence regarding Mejia's

consumption of alcohol, I would hold that the Commonwealth failed

to prove beyond a reasonable doubt that Mejia illegally consumed

alcohol. Accordingly, I would reverse the conviction.

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