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MICHAEL JOHN BROWN v. COMMONWEALTH OF VIRGINIA

COURT OF APPEALS OF VIRGINIA

July 27, 2004, Decided

Brown appealed his convictions, after a bench trial, for driving under the influence (in violation of Code § 18.2-266) and reckless driving (in violation of Code § 46.2-862).  Brown argued the trial court erred in not finding that the driving under the influence and reckless driving offenses grew out of the same act or acts of driving.  Consequently, Brown argued that one of the charges should have been dismissed pursuant to Code § 19.2-294.1.

ISSUES:

The issue to be decided is that whether one of the charges should be dismissed as the two offenses grew out of the same act or acts.

ARGUMENTS:

Code § 19.2-294.1 mandates that "whenever any person is charged with a violation of § 18.2-51.4 or § 18.2-266 or any similar ordinances of any county, city, or town and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge."  Code § 19.2-294.1.  The Supreme Court held in a previous case that two offenses subject of Code § 19.2-294.1, DUI and reckless driving, are separate and distinct violations.  Nevertheless, the Court reasoned that the legislature intended that a conviction of one offense would preclude conviction of the other, whenever both grew from the same continuous, uninterrupted course of operation of a motor vehicle.  Thus, the statute is applicable where these two offenses grow out of the same act or acts of driving.  It is the commonality of the underlying offending conduct, the continuous, uninterrupted operation of a motor vehicle that invokes the preclusive effect of the statute.  Because § 19.2-294.1 relates to matters of a penal nature and is remedial in character, it must be construed strictly against the Commonwealth and favorably to the accused.  Whether Brown's actions constitute the same act or acts as contemplated by Code § 19.2-294.1, is a mixed question of law and fact.  While the trial court found the events, although they were close in time, were separate and distinct, the appellate court did not consider this statement by the trial court to equate to a factual finding that Brown temporarily discontinued operation of his car.  In fact, the context of the trial court's statement is clearly in reference only to the criminal conduct supporting the different charges.  Moreover, as stated above, there was no evidence in this record that gives rise to any reasonable inference that Brown did anything other than engage in a continuous operation of his vehicle.  Code § 19.2-294, on the other hand, applies to violation of any two or more statutes, not just driving while intoxicated and reckless driving.  It is applicable only if the same act is a violation of two or more statutes, not to offenses growing out of the same act or acts.  Furthermore, Code § 19.2-294 does not contemplate a continuous, uninterrupted course of operation of a motor vehicle.  The court found that the trial court erred in determining, as a matter of law, that Brown could be convicted for both DUI and reckless driving.

The Court reversed Brown's convictions and remanded, with direction to the trial court to dismiss one of the convictions at issue.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content.

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