Michelle Lynn Cubitt v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia
MICHELLE LYNN CUBITT
MEMORANDUM OPINION * BY
v. Record No. 3462-01-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Gregory K. Pugh (Davis & Pugh, P.C., on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A judge convicted Michelle Lynn Cubitt for driving under the
influence of alcohol, in violation of Code § 18.2-266, and for
driving after having been adjudicated an habitual offender, in
violation of Code § 46.2-357. Cubitt contends that the trial
judge erred in admitting into evidence three prior convictions
and in finding the evidence sufficient to support the conviction
for a fourth driving under the influence offense. She also
contends Code §§ 18.2-270 and 46.2-357 are unconstitutionally
vague. For the following reasons, we affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
At 1:30 a.m. on May 26, 2001 in the City of Virginia Beach,
Officer William Patterson saw a moving vehicle with no
headlights illuminated. The officer initiated a traffic stop
after he saw the vehicle weave and strike the median twice.
When the officer asked Michelle Lynn Cubitt for her driver's
license, Cubitt admitted that she did not have a license. She
told the officer that she was an habitual offender and that she
had consumed ten beers shortly before driving.
The officer testified that Cubitt's speech was slurred,
that she had a strong odor of alcohol, and that she swayed while
standing and walking. After conducting field sobriety tests,
the officer arrested Cubitt for driving under the influence.
While in jail, Cubitt's breath test indicated her alcohol
concentration was .17 grams per 210 liters of breath.
At trial, Cubitt objected when the prosecutor offered as
evidence documentation of three prior violations of Virginia
Beach City Ordinance 21-336(a) and Department of Motor Vehicles
records showing Cubitt was an habitual offender. The trial
judge overruled that objection, admitted the evidence, and
judicially noticed the city ordinances referenced in the
conviction orders. At the conclusion of the evidence, the trial
judge denied each of Cubitt's claims and convicted her of
driving under the influence of alcohol. The trial judge also
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convicted her of driving after having been adjudicated an
habitual offender.
II.
Cubitt contends the trial judge erred when he admitted into
evidence her prior convictions before the prosecutor proved the
city ordinances in effect at the time of each conviction.
Cubitt argues that the Commonwealth had to prove the ordinances
are "substantially similar" to Code § 18.2-266 and that the
trial judge could not judicially notice the ordinances without
first entering the ordinances into the record.
In pertinent part, Code § 18.2-266 provides as follows:
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 . . . 0.08 grams or
more per 210 liters of breath as indicated
by a chemical test administered as provided
in this article . . . .
Code § 18.2-270(C) provides enhanced punishment for any person
convicted under Code § 18.2-266 of a fourth or subsequent
offense committed within a ten-year period. In addition, Code
§ 18.2-270(E) provides as follows:
For the purpose of this section, an adult
conviction of any person, or finding of
guilty in the case of a juvenile, under the
following shall be considered a prior
conviction . . . the provisions of
§§ 18.2-51.4, 18.2-266, former § 18.1-54
(formerly § 18-75), the ordinance of any
county, city or town in this Commonwealth or
the laws of any other state or of the United
States substantially similar to the
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provisions of § 18.2-51.4, and §§ 18.2-266
through 18.2-269 . . . .
The trial court found, and Cubitt does not dispute, that
she had been convicted three times under City Ordinance
21-336(a) for driving under the influence of alcohol. The three
prior offenses occurred on March 1, 1992, November 6, 1993, and
June 14, 1997. Thus, her earliest offense occurred less than
ten years before her fourth offense.
Cubitt's contention that the prosecutor must enter the
ordinance into the record before the trial judge may judicially
notice it is refuted by Oulds v. Commonwealth, 260 Va. 210, 532
S.E.2d 33 (2000). There, as here, the defendant argued the
Commonwealth failed to prove an element of the offense because
it did not enter in the record a copy of the ordinance at issue.
Answering the argument, the Supreme Court referred to Code
§ 19.2-265.2, which provides as follows:
A. Whenever, in any criminal case it
becomes necessary to ascertain what the law,
statutory or otherwise, of this
Commonwealth, of another state, of the
United States, of another country, or of any
political subdivision or agency of the same
is, or was, at any time, the court shall
take judicial notice thereof whether
specially pleaded or not.
B. The court, in taking such notice, shall
consult any book, record, register, journal,
or other official document or publication
purporting to contain, state, or explain
such law, and may consider any evidence or
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other information or argument that is
offered on the subject.
The Supreme Court upheld this Court's ruling "that a trial
court 'need not admit formally the ordinances of the
jurisdiction where it sits because it is required to take
judicial notice of those laws.'" Oulds, 260 Va. at 213, 532
S.E.2d at 35. The Court specifically held that Code
§ 19.2-265.2 "eliminates the necessity of introducing an
authenticated copy of a city ordinance into evidence and that
the ordinance be 'specially pleaded'" where proof of the term of
such an ordinance is required to establish the elements of the
offense. Id.
At Cubitt's trial, the prosecutor tendered orders
indicating Cubitt had been convicted under Virginia Beach
Ordinance § 21-336. The judge indicated on the record that he
was taking judicial notice of the substantial similarities
between the ordinance and Code § 18.2-266 when he said: "I
think that the court can take judicial notice of Virginia Beach
ordinances that it deals with almost daily." As in Oulds, we
hold that the prosecutor was not required to introduce the
ordinance into evidence before the trial judge could judicially
notice the city ordinance at issue.
In her brief, Cubitt tacitly concedes that she may have
been incorrect in her position at trial when she argued the
trial judge could not take judicial notice of the city
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ordinance. Nevertheless, she contends "the Commonwealth still
failed to carry its burden of proof." Cubitt argues that
although Code § 19.2-265.2(A) allows judges to take judicial
notice of the city ordinance, Code § 19.2-265.2(B) requires the
trial judge to enter in the record the ordinance noticed.
Cubitt cites Rufty v. Commonwealth, 221 Va. 836, 275 S.E.2d 584(1981), as additional support for that proposition.
The record indicates the trial judge said he would take
under advisement Cubitt's argument. After a recess, the judge
said on the record that he had reviewed the exhibits and could
take judicial notice of the city's ordinance. The judge was
aware, based on the argument and the conviction orders, that the
only ordinance in question was Virginia Beach Ordinance 21-336.
Indeed, he said on the record "that [he] deals with [that
ordinance] almost daily."
Unlike in Rufty, where the "record . . . [did] not show
that the trial court took judicial notice of North Carolina laws
. . . [and the judge] failed to enter of record the provisions
of the law it noticed," 221 Va. at 838 n.2, 275 S.E.2d at 585
n.2, the trial judge in this case said that he was judicially
noticing the city ordinance and that the ordinance at issue was
21-336. Thus, unlike in Rufty, we are not left to engage in
conjecture or speculation to determine what occurred. 221 Va.
at 839, 275 S.E.2d at 586. Based on our review of the record,
the record plainly establishes that the provisions of Code
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§ 19.2-265.2(B) have been satisfied. Accordingly, we hold that
the trial judge did not err in judicially noticing the city's
ordinance, in admitting as evidence the three prior conviction
orders, and in finding the evidence sufficient to prove beyond a
reasonable doubt a fourth offense of driving under the
influence.
III.
Cubitt further contends that her conviction for driving
under the influence for a fourth or subsequent offense should be
reversed because Code § 18.2-270 is unconstitutionally vague.
She argues the language of Code § 18.2-270 fails to notify the
public "what punishment coincides with violation of the
prohibited act," and thus unconstitutionally vague. We
disagree.
In particular, Cubitt challenges the following language:
Any person convicted of three or more
offenses of § 18.2-266 committed within a
ten-year period shall upon conviction of the
third offense be guilty of a Class 6 felony,
and the sentence shall include a mandatory,
minimum sentence of confinement for ten days
that shall not be subject to suspension by
the court. Any person convicted of a third
offense committed within five years of an
offense under § 18.2-266 shall upon
conviction of the third offense be guilty of
a Class 6 felony, and the sentence shall
include a mandatory, minimum sentence of
confinement for thirty days that shall not
be subject to suspension by the court. The
punishment of any person convicted of a
fourth or subsequent offense committed
within a ten-year period shall, upon
conviction, include a mandatory, minimum
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term of imprisonment of one year, none of
which may be suspended in whole or in part.
Unless otherwise modified by the court, the
defendant shall remain on probation and
under the terms of
any suspended sentence for the same period
as his operator's license was suspended, not
to exceed three years.
Code § 18.2-270(C).
Cubitt argues that when the words in the first sentence are
given their plain and ordinary meaning, "three or more offenses"
would include a fourth offense, which if committed within a
ten-year period would require a mandatory minimum of ten days in
jail. She notes that under the third sentence, however, a
fourth offense within the ten-year period requires "a mandatory,
minimum term of imprisonment of one year." Cubitt contends the
statute is vague and unconstitutional because the "statute
allows for two identical offenses to potentially be punished in
. . . different manners."
"The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,
357 (1983). Although the doctrine focuses both on actual notice
to citizens and arbitrary enforcement, the Supreme Court of the
United States has held "that the more important aspect of the
vagueness doctrine 'is not actual notice, but the requirement
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that a legislature establish minimal guidelines to govern law
enforcement.'" Id. at 357-58. The Court has recognized the
"practical difficulties in drawing criminal statutes both
general enough to take into account a variety of human conduct
and sufficiently specific to provide fair warning that certain
kinds of conduct are prohibited." Colten v. Kentucky, 407 U.S.
104, 110 (1972).
The language of Code § 18.2-270 does not violate these
principles. It does not have the effect of holding persons
criminally responsible for conduct they "'could not reasonably
understand to be proscribed.'" Colten, 407 U.S. at 110. Three
levels of mandatory enhanced punishment are prescribed by the
statute. First, any person convicted of committing three or
more offenses within a ten-year period must serve at least ten
days of imprisonment. Second, any person convicted of
committing a third offense within a five-year period must serve
at least thirty days of imprisonment. Finally, any person
convicted of committing a fourth or subsequent offenses within a
ten-year period must serve a one-year mandatory, minimum term of
imprisonment.
Where there is a conflict in statutes, we will presume the
legislature intended that the more specific provision control.
See Tharpe v. Commonwealth, 18 Va. App. 37, 43-44, 441 S.E.2d
228, 232 (1994); Penton v. City of Norfolk, 16 Va. App. 141,
144, 428 S.E.2d 309, 311 (1993). See also Gozlon-Peretz v.
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United States, 498 U.S. 395, 407 (1991) (noting that a "specific
provision controls over one of more general application"). We
so read Code § 18.2-270 and hold that the first sentence of the
statute referencing "three or more offenses committed within a
ten year period" can mean only three offenses. The third
sentence of the statute clearly and obviously refers to "a
fourth or subsequent offense." So read, the statute is capable
of valid application. See Steffel v. Thompson, 415 U.S. 452,
474 (1974); Grayned v. City of Rickford, 408 U.S. 104, 110
(1972). Thus, we hold that Code § 18.2-270 is not
unconstitutionally vague.
IV.
Under the same vagueness challenge, Cubitt also attacks the
constitutionality of Code § 46.2-357, which prohibits habitual
offenders from driving. She argues that when the General
Assembly repealed the statute that contained the definition of
"habitual offender," Code § 46.2-357 became unconstitutionally
vague because it fails to specify who qualifies as an habitual
offender.
In pertinent part, Code § 46.2-357 provides that "[i]t
shall be unlawful for any person determined or adjudicated an
habitual offender to drive any motor vehicle or self-propelled
machinery or equipment on the highways of the Commonwealth while
the revocation of the person's driving privilege remains in
effect." Prior to July 1, 1999, Code § 46.2-357 was part of a
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larger statutory scheme under Article 9, Chapter 3 of Title
46.2, providing that a driver who was convicted of certain
qualifying offenses would suffer a civil forfeiture of the
privilege to operate a motor vehicle for an established period
of time. Effective July 1, 1999, however, the General Assembly
repealed Code §§ 46.2-351 through 46.2-355. One of the repealed
sections contained the definition of "habitual offender."
The General Assembly did not repeal Code § 46.2-357. We
have no basis upon which to conclude that the General Assembly's
actions in repealing Code §§ 46.2-351 through 46.2-355 were
intended to abolish the existing habitual offender status for
persons who were so adjudicated. As the Supreme Court has
noted, "the status of persons declared habitual offenders prior
to [the date of the repeal] was not affected by the repeal."
Varga v. Commonwealth, 260 Va. 547, 549 n.1, 536 S.E.2d 711, 712
n.1 (2000). Clearly, the General Assembly intended only to
abolish future declarations of that status.
When Cubitt was previously convicted, she was declared an
habitual offender. This fact was evident from the Department's
records that declared her an habitual offender and revoked her
driving privileges for ten years. See Morgan v. Commonwealth,
28 Va. App. 645, 507 S.E.2d 665 (1998) (affirming a conviction
when the defendant had notice of the Department's order of
revocation declaring him an habitual offender, failed to appeal
that order, and operated a motor vehicle during the period of
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revocation). "The crime of driving after having been declared
an habitual offender is defined in terms of the order declaring
the accused an habitual offender." Long v. Commonwealth, 23
Va. App. 537, 545, 478 S.E.2d 324, 327 (1996).
Cubitt's admission to the arresting officer that she was an
habitual offender demonstrates her understanding that she was an
habitual offender. Moreover, Cubitt had notice of the order
that declared her an habitual offender and knew she was not
allowed to drive. Yet, she drove her car contrary to the law.
We find no merit in Cubitt's argument that Code § 46.2-357 is
unconstitutionally vague because another statute was repealed
and changed.
For these reasons, we affirm the convictions.
Affirmed.
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