Commonwealth v. Mosley

5 Va. Cir. 74, 1983 Va. Cir. LEXIS 53

• Court: Campbell County Circuit Court
• Decided: January 27, 1983
• Status: Published

Opinion

By JUDGE J. SAMUEL JOHNSTON, JR.

I have researched the questions raised by the defendant’s contention that Section 19.2-294 of the Code of Virginia bars a conviction of driving after having been declared an habitual offender since the defendant had already been convicted of driving under the influence from the same incident. While it is clear that there is only one act in the technical sense of the word, to wit the defendant, who had been declared an habitual offender, drove a vehicle while under the influence, the Commonwealth is not precluded from prosecuting both cases Cf. Hundley v. Commonwealth, 193 Va. 449 (1952), and Estes v. Commonwealth, 212 Va. 23 (1971). The test enunciated in those cases is even though there is only one transaction or event, if different evidence is required to sustain the different charges, then they are by definition different acts or transactions. Accordingly, since the factual evidence was stipulated, I hereby deny the defendant’s motion to quash or suppress the prosecution and in accordance therewith will enter a finding of guilt when the defendant is brought before me.