Commonwealth v. Emery

40 Va. Cir. 95, 1995 Va. Cir. LEXIS 1371

Opinion

By Judge Donald H. Kent

The defendant contends that after being convicted of making an illegal left turn, there cannot be a successful prosecution for driving while intoxicated. The defendant relies upon the double jeopardy clauses of the Virginia and U. S. Constitutions and § 19.2-294 of the Code.

The charges of illegal left turn and driving while intoxicated were lodged simultaneously. The former charge was amenable to an early conclusion since the defendant was allowed to pre-pay the fine. Pre-payment was not allowed on the more serious later offense. It is the time of institution which determines whether multiple charges are simultaneous or successive. Slater v. Commonwealth, 15 Va. App. 593 (1993). Since § 19.2-294 does not apply to simultaneous prosecutions, the statute is not applicable to this case.

This is not a case involving double jeopardy, since each offense requires proof of different elements. An illegal turn is not a lesser included offense of driving while intoxicated.

The defendant’s motion is denied for the reasons stated.