DRIVING DRUNK IN “THE DMV”: Virginia Judge Rules DUI Statutes in DC and Virginia Are Not “Substantially Similar.”

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By: Trevor D. Anderson, Esq.

On Friday, January 10, 2014 the Honorable Dennis Smith, Chief Judge of the Fairfax Circuit Court granted a defendant’s motion to dismiss his felony DUI 3rd based on the fact that the prosecution was seeking to use a 2010 DWI conviction in the District of Columbia as a predicate offense for purposes of enhancing what would otherwise have properly been indicted as a misdemeanor DUI 2nd. The ruling helped to add some clarity to what has traditionally been a complicated and rarely litigated area of DUI law in the Commonwealth of Virginia.

According to Virginia Code Section 18.2-270(E), Virginia allows for penalty enhancements on second and third DUI offenses so long as the prior convictions were based upon another state’s or jurisdiction’s law that is “substantially similar” to the provisions of Virginia Code Section 18.2-266, which sets forth Virginia’s own DUI statute.

The defendant’s attorney, Thomas Silis, argued that, at least in 2009, the D.C. and Virginia statutes were different for a number of reasons, but most clearly with regards to the sections setting forth a rebuttable presumption of intoxication when the defendant’s blood alcohol concentration is validly determined to reach a specific level. Mr. Silis pointed out that according to Va. Code § 18.2-266:

“it shall be unlawful for any person to drive or operate any motor vehicle, engine or train while such person has a blood alcohol concentration of 1) .08 percent or more by weight by volume; or 2) .08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article; or 3) while such person is under the influence of alcohol.”  

Conversely, D.C. Code § 50-2201.05 (b)(1)(A)(i) states:

“No person shall operate or be in physical control of any vehicle in the District when the person’s alcohol concentration at the time of testing is 1) .08 grams or more per 100 milliliters of blood; 2) .08 grams or more per 210 liters of breath; or 3) .10 grams or more per milliliters of urine; or 4) while under the influence of intoxicating liquor or any drug or any combination thereof.”

The key component of the defense’s argument hinged on a distinction made in Cox v. Commonwealth, 13 Va. App. 328 (1991). There, the Virginia Court of Appeals held that the best way of analyzing “substantial similarity” was to examine whether or not the defendant’s criminal conduct in the foreign jurisdiction would have likewise been deemed criminal under Virginia’s comparative statute.

Based on a clear reading of the statues being compared in this case, it was apparent that D.C. identified two ways of measuring blood alcohol concentration that were found nowhere in the Virginia statute. It followed then, that one may be found guilty of DUI in D.C. and not Virginia if his or her blood alcohol concentration was measured via testing either urine or blood, considering that both tests are neither identified nor allowed for in Virginia.

The Court agreed with this analysis and stated that even though one of the ways of determining blood alcohol concentration was the same in both jurisdictions (.08 grams or more per 210 liters of breath) that single similarity was not enough to overcome the serious differences concerning the other two methods of measurement.

To date, this ruling represents something of a benchmark in Virginia DUI jurisprudence. While case law has establish that the DUI laws of many of Virginia’s neighbors such as West Virginia, Maryland, Tennessee and Georgia are substantially similar to our own, there has not yet been a single ruling from the Virginia Court of Appeals that establishes a bright-line rule regarding the potential similarity between the DUI laws of Virginia and D.C.

While this case does not in and of itself represent settled law concerning the comparison of these two statutes, it is the only known decision where a Virginia Court has held that these two individual statues do not substantially conform.

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