Honaker v. Commonwealth
This text of 454 S.E.2d 29 (Honaker v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[683]*683Opinion
Appellant, Ricky Lane Honaker, contends that the trial court erred in finding that his September 2, 1983 conviction under a West Virginia state law for driving while under the influence of alcohol (DUI) substantially conformed to Code § 18.2-266, and therefore, could be used as a predicate offense for Honaker’s adjudication as an habitual offender pursuant to Code § 46.2-351, et seq. We disagree with Honaker’s contention and affirm the judgment of the trial court.
The Circuit Court of Buchanan County found that Honaker is an habitual offender. This finding was based, in part, on a certified abstract from the Virginia Department of Motor Vehicles showing that Honaker had two Virginia convictions and one West Virginia conviction for driving while intoxicated. The court’s finding was also based on a certified abstract of Honaker’s West Virginia DUI conviction which showed that he pled guilty to “driv[ing] and operating] a motor vehicle upon a public highway of [West Virginia] while under the influence of alcohol, to wit: Rt. 83/9 in the State Line Ridge area of McDowell County in violation of the West Virginia Code, Chapter 17C, Article 5, Section 2.”
The sole issue in this case is whether the West Virginia DUI law under which appellant was convicted, W. Va. Code § 17C-5-2, “substantially conforms” to Virginia’s DUI law, Code § 18.2-266. See Code § 46.2-351(3). Honaker cites Commonwealth v. Ayers, 17 Va. App. 401, 437 S.E.2d 580 (1993), as authority for his contention that his conviction under the aforementioned section of the West Virginia Code cannot be used as a predicate offense for his habitual offender adjudication. However, Ayers dealt with a conclusive presumption of intoxication under the North Carolina DUI law, which is not a part of Code § 18.2-266, and merely interpreted Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991). We believe Cox is more on point and controls the outcome of this appeal.
In Cox, we held that the trial court erred in finding that a Lewisburg, West Virginia city ordinance substantially conformed to provisions of Code § 18.2-266 because “it permitted] convictions for acts which could not be the basis for convictions under Code § 18.2-266.” Id. at 329, 411 S.E.2d at 445. We concluded that “[i]f a conviction in another state is based on conduct which [684]*684is not a violation of Code § 18.2-266, then to consider it under Code § 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized.” Id. at 331, 411 S.E.2d at 446.
However, we further explained that our holding did “not mean that [the other] state’s law . . . must substantially conform in every respect to Code § 18.2-266.” Id. Rather, in order to adjudicate a defendant an habitual offender based upon a conviction from another state, “[o]nly that prohibition of the other state’s law under which the person was convicted must substantially conform [to Code § 18.2-266].” Id. (emphasis added).
In Cox, we were compelled to examine the entire Lewisburg ordinance to see if it permitted convictions not permitted under Code § 18.2-266 because the record of appellant’s convictions in West Virginia indicated only that he was convicted under a state statute and a city ordinance. The description of appellant’s convictions permitted us to conclude only that the appellant committed the offense while operating a motor vehicle. Consequently, because the Lewisburg city ordinance included several prohibitions against conduct which would not violate Code § 18.2-266, we were “unable to say that the conduct upon which the appellant’s convictions were based was that which [was] not included within the prohibitions of Code § 18.2-266. Id.
[685]*685This case is unlike Cox, in that here the record discloses the specific prohibition of the West Virginia law — driving and operating a motor vehicle upon a public highway in West Virginia while under the influence of alcohol — under which Honaker was convicted.2 By finding Honaker guilty of “driving] and operating] a motor vehicle . . . while under the influence of alcohol,” the offense was necessarily in violation of West Virginia Code § 17C-5-2(A), rather than (B), (C), (D), or (E). The trial judge, in reviewing West Virginia Code § 17C-5-2, correctly limited his examination to the applicable provision of that section under which Honaker was convicted. From this examination, he could have concluded that the “conviction in [West Virginia was] based on conduct which is [also] a violation of Va. Code § 18.2-266, . . . [and thus] to consider it under Code § 46.2-351 would [not] . . . expand the scope of the convictions which could be considered” in making his ruling. Cox, 13 Va. App. at 331, 411 S.E.2d at 446.
Upon review of West Virginia Code § 17C-5-2, we hold that the trial judge did not err in finding that the section under which Honaker was convicted substantially conformed to Code § 18.2-266. Thus, notwithstanding the fact that there are substantial differences between West Virginia Code § 17C-5-2 and Code § 18.2-266, we hold that because the prohibition of West Virginia law under which Honaker was convicted substantially conformed to Code § 18.2-266, it could be used as a predicate offense for [686]*686Honaker’s adjudication as an habitual offender pursuant to Code § 46.2-351, et seq.
Affirmed.
Coleman, J., and Hodges, S.J., concurred.
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454 S.E.2d 29, 19 Va. App. 682, 1995 Va. App. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/honaker-v-commonwealth-vactapp-1995.