Blevins v. Town of Marion, 821542

• Decision Date: 14 October 1983
• Docket Number: No. 821542,821542
• Citation: 308 S.E.2d 105,226 Va. 200
• Parties: Michael Ray BLEVINS v. TOWN OF MARION. Record
• Court: Virginia Supreme Court

Page 105

308 S.E.2d 105

226 Va. 200

Michael Ray BLEVINS v. TOWN OF MARION.

Record No. 821542.

Supreme Court of Virginia.

Oct. 14, 1983.

Walter R.C. Stamper, Sugar Grove, for appellant.

No brief or argument for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON, RUSSELL and THOMAS, JJ.

PER CURIAM.

In this appeal from a conviction of driving while intoxicated, the sole question before us is whether the trial court gave due consideration to the defendant's motion to admit him to an alcohol rehabilitation program.

Michael Ray Blevins was convicted in the general district court of driving while intoxicated. He appealed to the circuit court, waived jury trial, and was again found guilty in a trial de novo. The court then inquired whether Blevins had any previous convictions of like character. Defense counsel replied, "Prior to 1975, Your Honor, I believe it was 1971." The prosecution waived argument concerning punishment. Defense counsel then stated:

Your Honor, I believe the defendant is a suitable candidate for the VASAP Program. I believe that the program is designed for people such as him. His conviction of DWI one other time was much prior to the time when VASAP was implemented.

The court responded:

Well, gentlemen, I don't find him to be a suitable candidate. I've never put anybody on that came in and entered a plea of not guilty and gone through a trial and then say, "Well now I believe I'd like to have the benefits of this process here." I just found him guilty. I'm going to fix his punishment at a fine of two hundred and fifty dollars and suspend his license for a period of nine months. And so there will be no problem, I'm going to give him thirty days in jail. So, Mr. Blevins, you have anything to say or offer as to why the Court should not sentence you at this time?

The court later suspended execution of the jail sentence, conditioned upon payment of fine and costs. We granted an appeal, limited to the question whether the trial court had given mature consideration to Blevins' motion to be admitted to an alcohol safety action program as required by law.

The relevant statute provides as follows:

(a) Any person convicted of a violation of § 18.2-266, or any ordinance of a county, city or town similar to the provisions thereof, or any second offense thereunder, may, with leave of court or upon court order, enter into an alcohol safety action program, or a driver alcohol rehabilitation program or such other alcohol rehabilitation program as may in the opinion of the court be best suited to the needs of such person, in the judicial district in which such charge is brought or in any other judicial district upon such terms and conditions as the court may set forth. In the determination of the eligibility of such person to enter such a program, the court shall consider his prior record of participation in any other alcohol rehabilitation program. If such person has never entered into or been committed to a driver alcohol safety action program or driver alcohol rehabilitation program or similar rehabilitation or education program, in keeping with the procedures provided for in this section, and upon motion of the accused or his counsel, the court shall give mature consideration to the needs of such person in determining whether he be allowed to enter such program.

Code § 18.2-271.1(a) (emphasis added).

We considered this question in Midkiff v. Commonwealth, 223 Va. 1, 286...