Commonwealth v. Minnick

17 Va. Cir. 35, 1988 Va. Cir. LEXIS 308

Opinion

By JUDGE THOMAS D. HORNE

The Court believes the instant case to be distinguishable from Shinault v. Commonwealth, 228 Va. 269 (1984), upon which Defendant in part relies on his contention that the Indiana conviction should not be considered by the Court. Pursuant to the provision of § 46.1-387.2(c), the Court may consider those offenses of "another state" substantially conforming to those of the Commonwealth. While under the Indiana statute, a BAC of .10% or more constitutes prima facie evidence of intoxication and the Virginia statute makes reference to a presumption (Section 18.2-269, Code of Virginia, as amended) which is rebuttable, such a distinction does not make the two substantially nonconforming. Likewise, the Court does not believe the other reasons cited by the Defendant mandate a contrary result.

Accordingly, the Commonwealth may prepare an order finding the Defendant to be a habitual offender as set forth in Section 46.1-387.2 pursuant to Section 46.1-387.6, Code of Virginia, as amended, in the usual form to which the Defendant may note his exception.