Shaw v. Com.

• Decision Date: 23 January 1990
• Docket Number: No. 0496-88-4,0496-88-4
• Citation: 387 S.E.2d 792,9 Va.App. 331
• Parties: Martin L. SHAW v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 792

387 S.E.2d 792

9 Va.App. 331

Martin L. SHAW v. COMMONWEALTH of Virginia.

Record No. 0496-88-4.

Court of Appeals of Virginia.

Jan. 23, 1990.

James P. Franca, Fairfax, for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Panel: BAKER, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

Code § 19.2-294.1 provides that whenever a person is charged with both reckless driving and driving while intoxicated "growing out of the same act or acts" and is convicted of one of the offenses, the trial court shall dismiss the remaining charge. Martin L. Shaw, the appellant, contends that his conviction for eluding a police officer in violation of Code § 46.1-192.1 (now Code § 46.2-817) constituted a conviction for reckless driving, thereby requiring the trial court, in obedience to Code § 19.2-294.1, to have dismissed a driving while intoxicated charge against him which arose out of the "same acts." We hold that, because the offense of eluding a police officer was not reckless driving on the date of the offense, January 9, 1988, Code § 19.2-294.1 did not pose a statutory bar to Shaw's conviction for driving while intoxicated in violation of Fairfax County Code 82-4-17. Thus, we affirm the conviction.

The dispositive question which controls this case is whether the 1984 amendment to Code § 46.1-192.1 changed the offense of eluding a police officer so that it no longer constituted the offense of reckless driving. Prior to July 1, 1984, Code § 46.1-192.1 ¹ expressly provided that any person violating the statute was guilty of reckless driving. The statute further directed that the operator's license of any person convicted of reckless driving would be suspended and specified the range of punishment for the offense. Effective July 1, 1984, the General Assembly amended Code § 46.1-192.1 by deleting all references to reckless driving and by specifying that the offense of eluding a police officer would be punishable as a Class 2 misdemeanor. ²

The appellant argues that the 1984 amendment was simply intended to redefine the punishment for the offense as a Class 2 misdemeanor, in effect reducing the maximum punishment for the offense. He contends that the legislative intent in deleting the language in the statute which denominated the offense as reckless driving was to accommodate the change in the punishment from the range previously specified to a Class 2 misdemeanor. He reasons that because Code § 46.1-192.1, prior to 1984, contained punishment provisions different from the other acts of reckless driving specified by Code § 46.1-192, the eluding a police officer statute needed the "reckless driving" language to make clear that it was, in law and in fact, reckless driving. Appellant contends that after the penalty was specified as that for a Class 2 misdemeanor, the separate designation of the offense as reckless driving became superfluous. We find the argument unpersuasive because, after the 1984 amendment, as before, the punishment for eluding a police officer was different from the forms of reckless driving proscribed by Code § 46.1-192.

The appellant also contends that after the 1984 amendment violations of Code § 46.1-192.1 continued to be reckless driving because (1) the statute retained the headline of the code section--"Reckless Driving, Speeding, etc."--and, (2) the statute continued to be codified in Article 3 of Chapter 4 in Title 46.1. He argues that the headline to the statute and its location within the Code are further evidence of legislative intent. In support of this argument, he points out that the General Assembly did not amend in 1984 or thereafter Code § 46.1-192.2, which immediately followed the eluding police officer statute and which authorized trial courts to find persons charged with "the foregoing offenses," which he argues includes eluding a police officer, guilty of improper driving "where the degree of culpability is slight." Thus, he reasons that because a person violating Code § 46.1-192.1 could be found guilty of improper driving, necessarily the legislature intended that the offense continue to be reckless driving. For all these reasons, the appellant contends that when he was convicted of eluding a police officer he was convicted of reckless driving and, therefore, Code § 19.2-294.1 bars his conviction for the concurrent charge of driving while intoxicated in violation of the Fairfax County ordinance.

We construe the 1984 amendment to Code § 46.1-192.1 to make violation of the statute an offense distinct from reckless driving. The appellant would have us hold that a legislative deletion was of no consequence. We will not construe legislative action in a manner that would ascribe to the General...