Michelle Lynn Cubitt v. Commonwealth

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Kelsey Argued at Chesapeake, Virginia

MICHELLE LYNN CUBITT MEMORANDUM OPINION * BY v. Record No. 3462-01-1 JUDGE JAMES W. BENTON, JR. DECEMBER 17, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge

Gregory K. Pugh (Davis & Pugh, P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

A judge convicted Michelle Lynn Cubitt for driving under the

influence of alcohol, in violation of Code § 18.2-266, and for

driving after having been adjudicated an habitual offender, in

violation of Code § 46.2-357. Cubitt contends that the trial

judge erred in admitting into evidence three prior convictions

and in finding the evidence sufficient to support the conviction

for a fourth driving under the influence offense. She also

contends Code §§ 18.2-270 and 46.2-357 are unconstitutionally

vague. For the following reasons, we affirm the convictions.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

At 1:30 a.m. on May 26, 2001 in the City of Virginia Beach,

Officer William Patterson saw a moving vehicle with no

headlights illuminated. The officer initiated a traffic stop

after he saw the vehicle weave and strike the median twice.

When the officer asked Michelle Lynn Cubitt for her driver's

license, Cubitt admitted that she did not have a license. She

told the officer that she was an habitual offender and that she

had consumed ten beers shortly before driving.

The officer testified that Cubitt's speech was slurred,

that she had a strong odor of alcohol, and that she swayed while

standing and walking. After conducting field sobriety tests,

the officer arrested Cubitt for driving under the influence.

While in jail, Cubitt's breath test indicated her alcohol

concentration was .17 grams per 210 liters of breath.

At trial, Cubitt objected when the prosecutor offered as

evidence documentation of three prior violations of Virginia

Beach City Ordinance 21-336(a) and Department of Motor Vehicles

records showing Cubitt was an habitual offender. The trial

judge overruled that objection, admitted the evidence, and

judicially noticed the city ordinances referenced in the

conviction orders. At the conclusion of the evidence, the trial

judge denied each of Cubitt's claims and convicted her of

driving under the influence of alcohol. The trial judge also

- 2 - convicted her of driving after having been adjudicated an

habitual offender.

II.

Cubitt contends the trial judge erred when he admitted into

evidence her prior convictions before the prosecutor proved the

city ordinances in effect at the time of each conviction.

Cubitt argues that the Commonwealth had to prove the ordinances

are "substantially similar" to Code § 18.2-266 and that the

trial judge could not judicially notice the ordinances without

first entering the ordinances into the record.

In pertinent part, Code § 18.2-266 provides as follows:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train . . . while such person has a blood alcohol concentration of . . . 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article . . . .

Code § 18.2-270(C) provides enhanced punishment for any person

convicted under Code § 18.2-266 of a fourth or subsequent

offense committed within a ten-year period. In addition, Code

§ 18.2-270(E) provides as follows:

For the purpose of this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a prior conviction . . . the provisions of §§ 18.2-51.4, 18.2-266, former § 18.1-54 (formerly § 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the

- 3 - provisions of § 18.2-51.4, and §§ 18.2-266 through 18.2-269 . . . .

The trial court found, and Cubitt does not dispute, that

she had been convicted three times under City Ordinance

21-336(a) for driving under the influence of alcohol. The three

prior offenses occurred on March 1, 1992, November 6, 1993, and

June 14, 1997. Thus, her earliest offense occurred less than

ten years before her fourth offense.

Cubitt's contention that the prosecutor must enter the

ordinance into the record before the trial judge may judicially

notice it is refuted by Oulds v. Commonwealth, 260 Va. 210, 532

S.E.2d 33 (2000). There, as here, the defendant argued the

Commonwealth failed to prove an element of the offense because

it did not enter in the record a copy of the ordinance at issue.

Answering the argument, the Supreme Court referred to Code

§ 19.2-265.2, which provides as follows:

A. Whenever, in any criminal case it becomes necessary to ascertain what the law, statutory or otherwise, of this Commonwealth, of another state, of the United States, of another country, or of any political subdivision or agency of the same is, or was, at any time, the court shall take judicial notice thereof whether specially pleaded or not.

B. The court, in taking such notice, shall consult any book, record, register, journal, or other official document or publication purporting to contain, state, or explain such law, and may consider any evidence or

- 4 - other information or argument that is offered on the subject.

The Supreme Court upheld this Court's ruling "that a trial

court 'need not admit formally the ordinances of the

jurisdiction where it sits because it is required to take

judicial notice of those laws.'" Oulds, 260 Va. at 213, 532

S.E.2d at 35. The Court specifically held that Code

§ 19.2-265.2 "eliminates the necessity of introducing an

authenticated copy of a city ordinance into evidence and that

the ordinance be 'specially pleaded'" where proof of the term of

such an ordinance is required to establish the elements of the

offense. Id.

At Cubitt's trial, the prosecutor tendered orders

indicating Cubitt had been convicted under Virginia Beach

Ordinance § 21-336. The judge indicated on the record that he

was taking judicial notice of the substantial similarities

between the ordinance and Code § 18.2-266 when he said: "I

think that the court can take judicial notice of Virginia Beach

ordinances that it deals with almost daily." As in Oulds, we

hold that the prosecutor was not required to introduce the

ordinance into evidence before the trial judge could judicially

notice the city ordinance at issue.

In her brief, Cubitt tacitly concedes that she may have

been incorrect in her position at trial when she argued the

trial judge could not take judicial notice of the city

- 5 - ordinance. Nevertheless, she contends "the Commonwealth still

failed to carry its burden of proof." Cubitt argues that

although Code § 19.2-265.2(A) allows judges to take judicial

notice of the city ordinance, Code § 19.2-265.2(B) requires the

trial judge to enter in the record the ordinance noticed.

Cubitt cites Rufty v. Commonwealth, 221 Va. 836, 275 S.E.2d 584

(1981), as additional support for that proposition.

The record indicates the trial judge said he would take

under advisement Cubitt's argument. After a recess, the judge

said on the record that he had reviewed the exhibits and could

take judicial notice of the city's ordinance. The judge was

aware, based on the argument and the conviction orders, that the

only ordinance in question was Virginia Beach Ordinance 21-336.

Indeed, he said on the record "that [he] deals with [that

ordinance] almost daily."

Unlike in Rufty, where the "record . . . [did] not show

that the trial court took judicial notice of North Carolina laws

. . . [and the judge] failed to enter of record the provisions

of the law it noticed," 221 Va. at 838 n.2, 275 S.E.2d at 585

n.2, the trial judge in this case said that he was judicially

noticing the city ordinance and that the ordinance at issue was

21-336. Thus, unlike in Rufty, we are not left to engage in

conjecture or speculation to determine what occurred. 221 Va.

at 839, 275 S.E.2d at 586. Based on our review of the record,

the record plainly establishes that the provisions of Code - 6 - § 19.2-265.2(B) have been satisfied. Accordingly, we hold that

the trial judge did not err in judicially noticing the city's

ordinance, in admitting as evidence the three prior conviction

orders, and in finding the evidence sufficient to prove beyond a

reasonable doubt a fourth offense of driving under the

influence.

III.

Cubitt further contends that her conviction for driving

under the influence for a fourth or subsequent offense should be

reversed because Code § 18.2-270 is unconstitutionally vague.

She argues the language of Code § 18.2-270 fails to notify the

public "what punishment coincides with violation of the

prohibited act," and thus unconstitutionally vague. We

disagree.

In particular, Cubitt challenges the following language:

Any person convicted of three or more offenses of § 18.2-266 committed within a ten-year period shall upon conviction of the third offense be guilty of a Class 6 felony, and the sentence shall include a mandatory, minimum sentence of confinement for ten days that shall not be subject to suspension by the court. Any person convicted of a third offense committed within five years of an offense under § 18.2-266 shall upon conviction of the third offense be guilty of a Class 6 felony, and the sentence shall include a mandatory, minimum sentence of confinement for thirty days that shall not be subject to suspension by the court. The punishment of any person convicted of a fourth or subsequent offense committed within a ten-year period shall, upon conviction, include a mandatory, minimum - 7 - term of imprisonment of one year, none of which may be suspended in whole or in part. Unless otherwise modified by the court, the defendant shall remain on probation and under the terms of

any suspended sentence for the same period as his operator's license was suspended, not to exceed three years.

Code § 18.2-270(C).

Cubitt argues that when the words in the first sentence are

given their plain and ordinary meaning, "three or more offenses"

would include a fourth offense, which if committed within a

ten-year period would require a mandatory minimum of ten days in

jail. She notes that under the third sentence, however, a

fourth offense within the ten-year period requires "a mandatory,

minimum term of imprisonment of one year." Cubitt contends the

statute is vague and unconstitutional because the "statute

allows for two identical offenses to potentially be punished in

. . . different manners."

"The void-for-vagueness doctrine requires that a penal

statute define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary and

discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,

357 (1983). Although the doctrine focuses both on actual notice

to citizens and arbitrary enforcement, the Supreme Court of the

United States has held "that the more important aspect of the

vagueness doctrine 'is not actual notice, but the requirement - 8 - that a legislature establish minimal guidelines to govern law

enforcement.'" Id. at 357-58. The Court has recognized the

"practical difficulties in drawing criminal statutes both

general enough to take into account a variety of human conduct

and sufficiently specific to provide fair warning that certain

kinds of conduct are prohibited." Colten v. Kentucky, 407 U.S.

104, 110 (1972).

The language of Code § 18.2-270 does not violate these

principles. It does not have the effect of holding persons

criminally responsible for conduct they "'could not reasonably

understand to be proscribed.'" Colten, 407 U.S. at 110. Three

levels of mandatory enhanced punishment are prescribed by the

statute. First, any person convicted of committing three or

more offenses within a ten-year period must serve at least ten

days of imprisonment. Second, any person convicted of

committing a third offense within a five-year period must serve

at least thirty days of imprisonment. Finally, any person

convicted of committing a fourth or subsequent offenses within a

ten-year period must serve a one-year mandatory, minimum term of

imprisonment.

Where there is a conflict in statutes, we will presume the

legislature intended that the more specific provision control.

See Tharpe v. Commonwealth, 18 Va. App. 37, 43-44, 441 S.E.2d

228, 232 (1994); Penton v. City of Norfolk, 16 Va. App. 141,

144, 428 S.E.2d 309, 311 (1993). See also Gozlon-Peretz v. - 9 - United States, 498 U.S. 395, 407 (1991) (noting that a "specific

provision controls over one of more general application"). We

so read Code § 18.2-270 and hold that the first sentence of the

statute referencing "three or more offenses committed within a

ten year period" can mean only three offenses. The third

sentence of the statute clearly and obviously refers to "a

fourth or subsequent offense." So read, the statute is capable

of valid application. See Steffel v. Thompson, 415 U.S. 452,

474 (1974); Grayned v. City of Rickford, 408 U.S. 104, 110

(1972). Thus, we hold that Code § 18.2-270 is not

unconstitutionally vague.

IV.

Under the same vagueness challenge, Cubitt also attacks the

constitutionality of Code § 46.2-357, which prohibits habitual

offenders from driving. She argues that when the General

Assembly repealed the statute that contained the definition of

"habitual offender," Code § 46.2-357 became unconstitutionally

vague because it fails to specify who qualifies as an habitual

offender.

In pertinent part, Code § 46.2-357 provides that "[i]t

shall be unlawful for any person determined or adjudicated an

habitual offender to drive any motor vehicle or self-propelled

machinery or equipment on the highways of the Commonwealth while

the revocation of the person's driving privilege remains in

effect." Prior to July 1, 1999, Code § 46.2-357 was part of a - 10 - larger statutory scheme under Article 9, Chapter 3 of Title

46.2, providing that a driver who was convicted of certain

qualifying offenses would suffer a civil forfeiture of the

privilege to operate a motor vehicle for an established period

of time. Effective July 1, 1999, however, the General Assembly

repealed Code §§ 46.2-351 through 46.2-355. One of the repealed

sections contained the definition of "habitual offender."

The General Assembly did not repeal Code § 46.2-357. We

have no basis upon which to conclude that the General Assembly's

actions in repealing Code §§ 46.2-351 through 46.2-355 were

intended to abolish the existing habitual offender status for

persons who were so adjudicated. As the Supreme Court has

noted, "the status of persons declared habitual offenders prior

to [the date of the repeal] was not affected by the repeal."

Varga v. Commonwealth, 260 Va. 547, 549 n.1, 536 S.E.2d 711, 712

n.1 (2000). Clearly, the General Assembly intended only to

abolish future declarations of that status.

When Cubitt was previously convicted, she was declared an

habitual offender. This fact was evident from the Department's

records that declared her an habitual offender and revoked her

driving privileges for ten years. See Morgan v. Commonwealth,

28 Va. App. 645, 507 S.E.2d 665 (1998) (affirming a conviction

when the defendant had notice of the Department's order of

revocation declaring him an habitual offender, failed to appeal

that order, and operated a motor vehicle during the period of - 11 - revocation). "The crime of driving after having been declared

an habitual offender is defined in terms of the order declaring

the accused an habitual offender." Long v. Commonwealth, 23

Va. App. 537, 545, 478 S.E.2d 324, 327 (1996).

Cubitt's admission to the arresting officer that she was an

habitual offender demonstrates her understanding that she was an

habitual offender. Moreover, Cubitt had notice of the order

that declared her an habitual offender and knew she was not

allowed to drive. Yet, she drove her car contrary to the law.

We find no merit in Cubitt's argument that Code § 46.2-357 is

unconstitutionally vague because another statute was repealed

and changed.

For these reasons, we affirm the convictions.

Affirmed.

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