State v. Vandall, 14828
| Decision Date | 08 July 1982 |
| Docket Number | No. 14828,14828 |
| Citation | 170 W.Va. 374,294 S.E.2d 177 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. John E. VANDALL. |
Ernest M. Douglass, Parkersburg, for appellant.
Chauncey H. Browning, Atty. Gen., and Wayne Basconi, Asst. Atty. Gen., Charleston, for appellee.
This appeal necessitates an interpretation of the enhancement provisions of the West Virginia drunk driving statute, W.Va.Code, 17C-5-2 (1976). Specifically, the question presented is whether a prior drunk driving conviction obtained under a municipal ordinance may be used to enhance the penalty imposed under W.Va.Code, 17C-5-2 (1976), for a conviction of drunk driving. We hold that it may not.
The defendant, John E. Vandall, was charged with violating W.Va.Code, 17C-5-2 (1976), which prohibits driving a motor vehicle while under the influence of alcohol. He was tried before a jury in the Circuit Court of Wood County. The trial was bifurcated. In the first part of the proceeding, evidence was presented showing that on June 12, 1979, the appellant had driven a motor vehicle upon a public highway while under the influence of alcohol. At the conclusion of that portion of the trial, the jury found that the appellant was guilty as charged.
In the second part of the proceeding, the prosecution presented evidence showing that three years prior to the June 12, 1979 offense, the defendant had pled guilty to a charge of violating a Parkersburg municipal ordinance prohibiting the driving of a motor vehicle while under the influence of intoxicating liquor. The jury found this allegation to be true. The trial court then invoked the enhanced penalty provisions of W.Va.Code, 17C-5-2 (1976), accorded second offenders. It revoked the appellant's operators license for ten years and sentenced him to six months in jail. The punishment accorded first offenders is six months' operator's license revocation and not less than 24 hours, nor more than six months in jail. 1
The defendant urges that we apply our settled law of statutory construction involving penal statutes as set out in Syllabus Point 2 of State v. Ball, 164 W.Va. 588, 264 S.E.2d 844(1980):
When this standard is applied to W.Va.Code, 17C-5-2 (1976), the defendant asserts that the plain language of W.Va.Code, 17C-5-2 (1976), indicates that the offenses for which enhanced penalties can be given are limited to those involving "violat[ions] [of] any provisions of this section." W.Va.Code, 17C-5-2 (1976).
The State argues that municipalities have the power to enact ordinances relating to driving under the influence of intoxicating liquor. We recognize this point. W.Va.Code, 8-12-5(21) (1981). However, the fact that a municipality has the power to enact such ordinances does not answer the question whether a conviction under such ordinance may be used for enhancement purposes under W.Va.Code, 17C-5-2 (1976). Additionally, the State argues that W.Va.Code 17B-3-4 (1951), permits judgments of police or mayor's courts to be utilized for purposes of revocation of an operator's license. This argument, however, seems to cut against the State's position. The express language of W.Va.Code, 17B-3-4 (1951), is limited to revocation and suspension of operator's and chauffeur's license. 2
The Legislature, of course, could have placed a similar provision in W.Va.Code, 17C-5-1, et seq., relating to convictions in police and mayor's courts as being usable for enhancement of punishment under W.Va.Code, 17C-5-2 (1976). The absence of such provision in W.Va.Code, 17C-5-1, et seq., coupled with the express language in W.Va.Code, 17C-5-2(c) (1976), that confines the enhancement provisions to "[a] person violating any provision of this section shall, for a second offense," when read in light of our traditional construction of penal statutes compels the conclusion that the defendant's prior municipal conviction could not be used for an enhancement under W.Va.Code, 17C-5-2 (1976).
For the foregoing reasons, the defendant's enhanced sentence must be set aside. However, the defendant is not entitled to a new trial since he has a valid conviction under W.Va.Code, 17C-5-2 (1976), and the trial court may impose a proper sentence under that section without any enhancement. State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805, 812 (1979); State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E.2d 418 (1964).
The sentence of the Circuit Court of Wood County is,...
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