Beckham v. Commonwealth

• Decision Date: 30 May 2017
• Docket Number: Record No. 1146-16-2
• Citation: 67 Va.App. 654,799 S.E.2d 689
• Parties: Freddie BECKHAM, III v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

67 Va.App. 654

799 S.E.2d 689

Freddie BECKHAM, III

v.COMMONWEALTH of Virginia

Record No. 1146-16-2

Court of Appeals of Virginia, Richmond.

MAY 30, 2017

Alan Polsky, Assistant Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Petty and Beales

OPINION BY CHIEF JUDGE GLEN A. HUFF

Freddie Beckham, III ("appellant") was convicted in the Circuit Court of Spotsylvania County ("trial court") of driving under the influence ("DUI") and refusal to submit to a breathalyzer, in violation of Code §§ 18.2-266 and 18.2-268.3 respectively. The trial court entered the DUI conviction after accepting a conditional plea agreement, and it entered the refusal conviction following a bench trial. Because the trial court admitted evidence of two Florida DUI convictions within the previous ten years, both Virginia charges were enhanced: the DUI became a Class 6 felony by operation of Code § 18.2-270(C)(1), and the refusal became a Class 1 misdemeanor by operation of Code § 18.2-268.3(D). Ultimately, the trial court sentenced appellant to a total active term of twelve months' imprisonment and $1250 in fines. Pursuant to the terms of the conditional plea agreement, appellant appeals only the legal question of whether the Florida DUI statutes are substantially similar to Virginia Code § 18.2-266 such that the trial court properly admitted appellant's Florida DUI convictions to enhance the charges against appellant. Finding that the Florida and Virginia DUI statutes are substantially similar, this Court affirms the trial court's rulings.

I. BACKGROUND

On July 19, 2015, a Virginia State Police trooper stopped appellant after observing him make a left turn through a red stop light. The trooper detected an odor of alcohol on appellant, who admitted that he had consumed "a few beers." Following appellant's poor performance of field sobriety tests and a preliminary breath test, the trooper arrested appellant for DUI. Appellant then refused a breathalyzer test after the trooper advised him of Virginia's implied consent statute and the criminal penalties for refusal.

During the bench trial on the refusal charge, the Commonwealth introduced two prior DUI convictions under Fla. Stat. § 316.193 : one from March 9, 2006 and the other from October 13, 2013. Neither conviction order specifies the subsection of Fla. Stat. § 316.193 under which appellant was convicted. Appellant moved to strike the Florida convictions and set aside the refusal conviction, which the trial court denied. The trial court then accepted the conditional plea agreement concerning the DUI charge, and this appeal followed.

II. STANDARD OF REVIEW

"Generally, ‘[w]e review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb [that] decision ... absent a finding of abuse of that discretion.’ " Dean v. Commonwealth , 61 Va.App. 209, 213, 734 S.E.2d 673, 675 (2012) (quoting Herndon v. Commonwealth , 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010) ). A circuit court "by definition abuses its discretion when it makes an error of law.... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Id. (quoting Porter v. Commonwealth , 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) ). Insofar as admissibility of evidence "rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review." Mason v. Commonwealth , 64 Va.App. 599, 605, 770 S.E.2d 224, 227 (2015) (quoting Dean , 61 Va.App. at 213, 734 S.E.2d at 675 ). Accordingly, "the determination regarding whether appellant's [Florida] conviction[s] [are] ‘substantially similar’ to the offense proscribed by Code § [18.2-266] is a question of law" that this Court reviews de novo . Dillsworth v. Commonwealth , 62 Va.App. 93, 96, 741 S.E.2d 818, 820 (2013).

III. ANALYSIS

In his sole assignment of error, appellant contends that his Florida DUI convictions "were obtained under statutes not substantially similar" to Code § 18.2-266 and the trial court therefore erred in admitting them.

A. Virginia's DUI and refusal recidivist scheme

Under Virginia's DUI statutory scheme, the penalty for both DUI and refusing to submit to a chemical test to determine blood-alcohol content is enhanced if the offender has been convicted of certain prior offenses. Specifically, Code § 18.2-270, which sets forth the penalty for DUI violations, provides in subsection (C)(1) that "[a]ny person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony." Subsection (E) of that statute clarifies what may constitute a prior offense for sentence-enhancement purposes:

For the purpose of determining the number of offenses committed by, and the punishment appropriate for, a person under this section, an adult conviction of any person ... under the following shall be considered a conviction of § 18.2-266 : ... (ii) ... the laws of any other state or of the United States substantially similar to the provisions of ... § 18.2-266 ....

Code § 18.2-270(E) (emphasis added). Code § 18.2-268.3 provides that unreasonably refusing chemical blood-alcohol content tests is unlawful and sets forth the penalty for such violations. Subsection (D) of that statute contains its recidivist provisions and states in part:

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents , he is guilty of a Class 1 misdemeanor....

Code § 18.2-268.3(D) (emphasis added). Thus, the DUI penalty statute and the refusal statute both use the Code § 18.2-270(E) language to determine whether a foreign conviction qualifies as a prior conviction of Code § 18.2-266.

Although the General Assembly did not define "substantially similar," "in the context of determining if another state's statute is substantially similar to a code section, this Court has previously ‘establish [ed] that two things are "substantially similar" if they have common core characteristics or are largely alike in substance or essentials.’ " Mason , 64 Va.App. at 608, 770 S.E.2d at 228 (quoting Johnson v. Commonwealth , 53 Va.App. 608, 613, 674 S.E.2d 541, 543 (2009) ). In this analysis, "the Commonwealth bears the burden of proving the out of state conviction was obtained under laws substantially similar to those of the Commonwealth. If the Commonwealth shows substantial similarity, the burden shifts to the defendant to produce ‘evidence of dissimilarity.’ " Id. (quoting Dean v. Commonwealth , 61 Va.App. 209, 214, 734 S.E.2d 673, 676 (2012) ). Dissimilarity exists, for instance, "if a person may be convicted of an offense under another jurisdiction's statute for conduct which might not result in a conviction under [Virginia's statute]." Cox v. Commonwealth , 13 Va.App. 328, 330-31, 411 S.E.2d 444, 446 (1991). Sound policy considerations justify this principle, for "[i]f a conviction in another state is based on conduct which is not a violation of [Virginia law], then to consider it under [a recidivist statute] 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. Thus, "another state's law permitting a conviction for an act not constituting an offense under Code § 18.2-266 is not substantially" similar under Code § 18.2-270 and cannot be introduced as a prior Code § 18.2-266 conviction for penalty enhancement. Id.

B. Virginia and Florida DUI laws

Because the record does not indicate the specific subsection or subsections of Fla. Stat. § 316.193 appellant violated, this Court must examine Florida's entire statutory prohibition to determine whether it allows convictions not permitted under Code § 18.2-266. See id.

Both the Virginia and Florida DUI statutory schemes contain a core statute defining the prohibited conduct as well as additional provisions setting forth presumptions and penalties. Code § 18.2-266, Virginia's definitional DUI statute, provides in part:

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

Florida's definitional DUI statutory language appears as one subsection of a larger statute addressing penalties and other related matters:

A person is guilty of the offense of driving under the influence and is subject to

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