Rufty v. Com.
| Decision Date | 06 March 1981 |
| Docket Number | No. 800696,800696 |
| Parties | Richard RUFTY v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Patrick B. McDermott, Williamsburg (Scoggin & McDermott, Hampton, on brief), for appellant.
Linwood T. Wells, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ. 1
Code § 18.2-270 provides enhanced punishment for any person convicted of two or more offenses of driving under the influence of intoxicants within a ten-year period. For purposes of § 18.2-270, a conviction under "the laws of any other state substantially similar to the provisions" of Virginia's drunk-driving statutes shall be considered a prior conviction.
In the court below, the defendant, Richard Rufty, was convicted on a warrant charging him with driving under the influence of intoxicants "second or subsequent offense." He was sentenced under the enhanced punishment provisions of Code § 18.2-270.
The prior conviction of drunk driving used below to establish the defendant a second or subsequent offender was obtained in North Carolina in 1975. This prior conviction is shown on a certified transcript of the defendant's driving record prepared by the Virginia Division of Motor Vehicles. The transcript appears in the appendix to the defendant's brief.
No evidence was offered below concerning the provisions of North Carolina's laws on the subject of driving under the influence or concerning the similarity of those laws to Virginia's drunk-driving statutes. The defendant contends the burden was upon the Commonwealth to show the substantial similarity of North Carolina's drunk-driving laws to our own statutes on the subject. The Commonwealth failed to carry this burden, the defendant argues, and, hence, the trial court erred in sentencing the defendant for a second or subsequent offense.
The Attorney General concedes the burden was upon the Commonwealth to prove "that the out-of-State conviction was obtained under laws substantially similar to those of the Commonwealth." Further, acknowledging the inapplicability of Davis v. Commonwealth, 219 Va. 808, 252 S.E.2d 299 (1979), 2 the Attorney General concedes the Commonwealth was not entitled to a presumption that North Carolina's drunk-driving laws are substantially similar to ours. Nevertheless, the Attorney General argues that, because the defendant's North Carolina conviction was shown upon the transcript certified by the Virginia Division of Motor Vehicles, "the Commonwealth's evidence made out a prima facie case and ... the Defendant thereupon was placed in the position of having the burden of going forward with the evidence." 3
We do not agree with the Attorney General. We cannot give the certified transcript the probative effect the Attorney General accords it. The transcript indicates, of course, that North Carolina has a drunk-driving statute. But, because the record of the proceeding below does not show the provisions of the statute, one must resort to speculation concerning those provisions and must engage in conjecture to conclude they are substantially similar to Virginia's drunk-driving laws. Thus, the showing made by the certified transcript was insufficient to carry the Commonwealth's burden of proving substantial similarity and to shift to the defendant the burden of going forward with evidence of dissimilarity.
Accordingly, it was error to sentence the defendant pursuant to the enhanced punishment provisions...
To continue reading
Request your trial
-
Dean v. Commonwealth
...shows substantial similarity, the burden shifts to the defendant to produce “evidence of dissimilarity.” Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981). Proving substantial similarity between two states' laws requires showing more than “a general likeness.” Shinault, 22......
-
Goble v. Commonwealth Of Va.
...felony conviction, and remand the matter to the trial court for re-sentencing as a Class 1 misdemeanor. See Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981) (vacating the defendant's sentence and remanding for re-sentencing where trial court erroneously applied a sentence......
-
Mason v. Commonwealth
...produce ‘evidence of dissimilarity.’ ” Dean, 61 Va.App. at 214, 734 S.E.2d at 676 (citation omitted) (quoting Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981) ). Dissimilarity may be shown, for example, if “under the Virginia statute, one would not necessarily be found gu......
-
Corey v. Commonwealth, Record No. 0421-02-4 (Va. App. 11/12/2003), Record No. 0421-02-4.
...because it was not based on a statute that was "substantially similar" to Virginia's drunk-driving statute); Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981) (holding "it was error to sentence the defendant pursuant to the enhanced punishment provisions of Code § 18.2-270......