                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Petty and Beales
PUBLISHED


            Argued at Richmond, Virginia


            FREDDIE BECKHAM, III
                                                                                OPINION BY
            v.     Record No. 1146-16-2                                  CHIEF JUDGE GLEN A. HUFF
                                                                                MAY 30, 2017
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                           Sarah L. Deneke, Judge

                           Alan Polsky, Assistant Public Defender, for appellant.

                           Eugene Murphy, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Freddie Beckham, III (“appellant”) was convicted in the Circuit Court of Spotsylvania

            County (“trial court”) of driving under the influence (“DUI”) and refusal to submit to a

            breathalyzer, in violation of Code §§ 18.2-266 and 18.2-268.3 respectively. The trial court

            entered the DUI conviction after accepting a conditional plea agreement, and it entered the

            refusal conviction following a bench trial. Because the trial court admitted evidence of two

            Florida DUI convictions within the previous ten years, both Virginia charges were enhanced: the

            DUI became a Class 6 felony by operation of Code § 18.2-270(C)(1), and the refusal became a

            Class 1 misdemeanor by operation of Code § 18.2-268.3(D). Ultimately, the trial court

            sentenced appellant to a total active term of twelve months’ imprisonment and $1250 in fines.

            Pursuant to the terms of the conditional plea agreement, appellant appeals only the legal question

            of whether the Florida DUI statutes are substantially similar to Virginia Code § 18.2-266 such

            that the trial court properly admitted appellant’s Florida DUI convictions to enhance the charges
against appellant. Finding that the Florida and Virginia DUI statutes are substantially similar,

this Court affirms the trial court’s rulings.

                                         I. BACKGROUND

        On July 19, 2015, a Virginia State Police trooper stopped appellant after observing him

make a left turn through a red stop light. The trooper detected an odor of alcohol on appellant,

who admitted that he had consumed “a few beers.” Following appellant’s poor performance of

field sobriety tests and a preliminary breath test, the trooper arrested appellant for DUI.

Appellant then refused a breathalyzer test after the trooper advised him of Virginia’s implied

consent statute and the criminal penalties for refusal.

        During the bench trial on the refusal charge, the Commonwealth introduced two prior

DUI convictions under Fla. Stat. § 316.193: one from March 9, 2006 and the other from October

13, 2013. Neither conviction order specifies the subsection of Fla. Stat. § 316.193 under which

appellant was convicted. Appellant moved to strike the Florida convictions and set aside the

refusal conviction, which the trial court denied. The trial court then accepted the conditional

plea agreement concerning the DUI charge, and this appeal followed.

                                   II. STANDARD OF REVIEW

        “Generally, ‘[w]e review a circuit court’s decision to admit or exclude evidence under an

abuse of discretion standard and, on appeal, will not disturb [that] decision . . . absent a finding

of abuse of that discretion.’” Dean v. Commonwealth, 61 Va. App. 209, 213, 734 S.E.2d 673,

675 (2012) (quoting Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620

(2010)). A circuit court “by definition abuses its discretion when it makes an error of law. . . .

The abuse-of-discretion standard includes review to determine that the discretion was not guided

by erroneous legal conclusions.” Id. (quoting Porter v. Commonwealth, 276 Va. 203, 260, 661

S.E.2d 415, 445 (2008)). Insofar as admissibility of evidence “rests upon the interpretation of a

                                                 -2-
statute, that interpretation is a question of law subject to de novo review.” Mason v.

Commonwealth, 64 Va. App. 599, 605, 770 S.E.2d 224, 227 (2015) (quoting Dean, 61 Va. App.

at 213, 734 S.E.2d at 675). Accordingly, “the determination regarding whether appellant’s

[Florida] conviction[s] [are] ‘substantially similar’ to the offense proscribed by Code

§ [18.2-266] is a question of law” that this Court reviews de novo. Dillsworth v.

Commonwealth, 62 Va. App. 93, 96, 741 S.E.2d 818, 820 (2013).

                                          III. ANALYSIS

       In his sole assignment of error, appellant contends that his Florida DUI convictions “were

obtained under statutes not substantially similar” to Code § 18.2-266 and the trial court therefore

erred in admitting them.

                           A. Virginia’s DUI and refusal recidivist scheme

       Under Virginia’s DUI statutory scheme, the penalty for both DUI and refusing to submit

to a chemical test to determine blood-alcohol content is enhanced if the offender has been

convicted of certain prior offenses. Specifically, Code § 18.2-270, which sets forth the penalty

for DUI violations, provides in subsection (C)(1) that “[a]ny person convicted of three offenses

of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be

guilty of a Class 6 felony.” Subsection (E) of that statute clarifies what may constitute a prior

offense for sentence-enhancement purposes:

               For the purpose of determining the number of offenses committed
               by, and the punishment appropriate for, a person under this section,
               an adult conviction of any person . . . under the following shall be
               considered a conviction of § 18.2-266: . . . (ii) . . . the laws of any
               other state or of the United States substantially similar to the
               provisions of . . . § 18.2-266 . . . .

Code § 18.2-270(E) (emphasis added). Code § 18.2-268.3 provides that unreasonably refusing

chemical blood-alcohol content tests is unlawful and sets forth the penalty for such violations.

Subsection (D) of that statute contains its recidivist provisions and states in part:
                                                 -3-
               If a person is found guilty of a violation of this section and within
               10 years prior to the date of the refusal he was found guilty of any
               two of the following: a violation of this section, a violation of
               § 18.2-266, or a violation of any offense listed in subsection E of
               § 18.2-270 arising out of separate occurrences or incidents, he is
               guilty of a Class 1 misdemeanor . . . .

Code § 18.2-268.3(D) (emphasis added). Thus, the DUI penalty statute and the refusal statute

both use the Code § 18.2-270(E) language to determine whether a foreign conviction qualifies as

a prior conviction of Code § 18.2-266.

       Although the General Assembly did not define “substantially similar,” “in the context of

determining if another state’s statute is substantially similar to a code section, this Court has

previously ‘establish[ed] that two things are “substantially similar” if they have common core

characteristics or are largely alike in substance or essentials.’” Mason, 64 Va. App. at 608, 770

S.E.2d at 228 (quoting Johnson v. Commonwealth, 53 Va. App. 608, 613, 674 S.E.2d 541, 543

(2009)). In this analysis, “the Commonwealth bears the burden of proving the out of state

conviction was obtained under laws substantially similar to those of the Commonwealth. If the

Commonwealth shows substantial similarity, the burden shifts to the defendant to produce

‘evidence of dissimilarity.’” Id. (quoting Dean v. Commonwealth, 61 Va. App. 209, 214, 734

S.E.2d 673, 676 (2012)). Dissimilarity exists, for instance, “if a person may be convicted of an

offense under another jurisdiction’s statute for conduct which might not result in a conviction

under [Virginia’s statute].” Cox v. Commonwealth, 13 Va. App. 328, 330-31, 411 S.E.2d 444,

446 (1991). Sound policy considerations justify this principle, for “[i]f a conviction in another

state is based on conduct which is not a violation of [Virginia law], then to consider it under [a

recidivist statute] would, without authority, expand the scope of the convictions which could be

considered beyond that which the General Assembly specifically authorized.” Id. at 331, 411

S.E.2d at 446. Thus, “another state’s law permitting a conviction for an act not constituting an



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offense under Code § 18.2-266 is not substantially” similar under Code § 18.2-270 and cannot be

introduced as a prior Code § 18.2-266 conviction for penalty enhancement. Id.

                                B. Virginia and Florida DUI laws

       Because the record does not indicate the specific subsection or subsections of Fla. Stat.

§ 316.193 appellant violated, this Court must examine Florida’s entire statutory prohibition to

determine whether it allows convictions not permitted under Code § 18.2-266. See id.

       Both the Virginia and Florida DUI statutory schemes contain a core statute defining the

prohibited conduct as well as additional provisions setting forth presumptions and penalties.

Code § 18.2-266, Virginia’s definitional DUI statute, provides in part:

               It shall be unlawful for any person to drive or operate any motor
               vehicle, engine or train (i) while such person has a blood alcohol
               concentration of 0.08 percent or more by weight by volume or 0.08
               grams or more per 210 liters of breath as indicated by a chemical
               test administered as provided in this article, (ii) while such person
               is under the influence of alcohol, (iii) while such person is under
               the influence of any narcotic drug or any other self-administered
               intoxicant or drug of whatsoever nature, or any combination of
               such drugs, to a degree which impairs his ability to drive or operate
               any motor vehicle, engine or train safely, (iv) while such person is
               under the combined influence of alcohol and any drug or drugs to a
               degree which impairs his ability to drive or operate any motor
               vehicle, engine or train safely, or (v) while such person has a blood
               concentration of any of the following substances at a level that is
               equal to or greater than: (a) 0.02 milligrams of cocaine per liter of
               blood, (b) 0.1 milligrams of methamphetamine per liter of blood,
               (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1
               milligrams of 3,4-methylenedioxymethamphetamine per liter of
               blood. A charge alleging a violation of this section shall support a
               conviction under clauses (i), (ii), (iii), (iv), or (v).

Florida’s definitional DUI statutory language appears as one subsection of a larger statute

addressing penalties and other related matters:

               A person is guilty of the offense of driving under the influence and
               is subject to punishment as provided in subsection (2) if the person
               is driving or in actual physical control of a vehicle within this state
               and:

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                    (a) The person is under the influence of alcoholic beverages,
                        any chemical substance set forth in s. 877.111, or any
                        substance controlled under chapter 893, when affected to
                        the extent that the person’s normal faculties are impaired;
                    (b) The person has a blood-alcohol level of 0.08 or more
                        grams of alcohol per 100 milliliters of blood; or
                    (c) The person has a breath-alcohol level of 0.08 or more
                        grams of alcohol per 210 liters of breath.

Fla. Stat. § 316.193(1).

        Both the Virginia and Florida statutes define a single offense that the government can

establish through proof of at least one of the subsections. See Code § 18.2-266 (“A charge

alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or

(v).”); Cardenas v. State, 867 So. 2d 384, 391 (Fla. 2004) (observing that the Florida legislature

revised the DUI statute such that impairment and driving with an unlawful blood- or

breath-alcohol content are now “alternative methods of proving the same offense, rather than

separate offenses”). The subsections for both statutes can be divided into two categories: those

requiring proof of impairment and those requiring proof of a certain blood-alcohol

concentration.1

                                       1. Impairment provisions

        Subsections (ii), (iii), and (iv) of Code § 18.2-266 and subsection (a) of Fla. Stat.

§ 316.193(1) set forth impairment DUI offenses. For the reasons that follow, the impairment

provisions of the Virginia and Florida DUI statutes are substantially similar under Code

§ 18.2-270(E).

        Both impairment statutory schemes are functionally identical. Neither requires proof of a

specific blood-alcohol level; instead, proof that the accused is simply “under the influence”



        1
         As used in this opinion, phrases such as “blood-alcohol concentration” or
“blood-alcohol level” refer to measurements of both blood-alcohol content and breath-alcohol
content as both types of measurements are acceptable under either state’s DUI statute.
                                               -6-
under Virginia subsection (ii), is under the influence “to a degree which impairs his ability to

drive or operate” a vehicle under Virginia subsections (iii) and (iv), or is under the influence and

“affected to the extent that the person’s normal faculties are impaired” under Florida subsection

(a) is sufficient to convict. These provisions allow the prosecution to prove its case without

resort to chemical testing by “prov[ing] impairment beyond a reasonable doubt,” State v. Rolle,

560 So. 2d 1154, 1155 (Fla. 1990), based on “all of the evidence of [the accused’s] condition at

the time of the alleged offense,” Leake v. Commonwealth, 27 Va. App. 101, 109, 497 S.E.2d

522, 526 (1998) (quoting Brooks v. City of Newport News, 224 Va. 311, 315, 295 S.E.2d 801,

804 (1982)).

       Because individuals vary in how they outwardly manifest intoxication, “the difficulty of

establishing proof beyond a reasonable doubt that a person was under the influence of alcohol,

and conversely, the difficulty of defending against an unwarranted charge, are readily apparent.”

Davis v. Commonwealth, 8 Va. App. 291, 296, 381 S.E.2d 11, 13 (1989). Given these

difficulties, the Virginia and Florida legislatures enacted statutes creating certain presumptions of

impairment based on chemical test results indicating an accused’s blood-alcohol level.

Virginia’s presumption statute provides in part:

               In any prosecution for a violation of . . . clause (ii), (iii) or (iv) of §
               18.2-266, or any similar ordinance, the amount of alcohol or drugs
               in the blood of the accused at the time of the alleged offense as
               indicated by a chemical analysis of a sample of the accused’s
               blood or breath to determine the alcohol or drug content of his
               blood in accordance with the provisions of §§ 18.2-268.1 through
               18.2-268.12 shall give rise to the following rebuttable
               presumptions:

                  ....

               If there was at that time 0.08 percent or more by weight by volume
               of alcohol in the accused’s blood or 0.08 grams or more per 210
               liters of the accused’s breath, it shall be presumed that the accused
               was under the influence of alcohol intoxicants at the time of the
               alleged offense . . . .
                                                  -7-
Code § 18.2-269(A)(3) (emphasis added). The Florida counterpart to the Virginia statute states

in part:

               At the trial of any civil or criminal action or proceeding arising out
               of acts alleged to have been committed by any person while
               driving, or in actual physical control of, a vehicle while under the
               influence of alcoholic beverages or controlled substances, when
               affected to the extent that the person’s normal faculties were
               impaired or to the extent that he or she was deprived of full
               possession of his or her normal faculties, the results of any test
               administered in accordance with s. 316.1932 or s 316.1933 and this
               section are admissible into evidence when otherwise admissible,
               and the amount of alcohol in the person’s blood or breath at the
               time alleged, as shown by chemical analysis of the person’s blood,
               or by chemical or physical test of the person’s breath, gives rise to
               the following presumptions:

                  ....

                   (c) If there was at that time a blood-alcohol level or
                       breath-alcohol level of 0.08 or higher, that fact is prima
                       facie evidence that the person was under the influence of
                       alcoholic beverages to the extent that his or her normal
                       faculties were impaired. . . .

               The presumptions provided in this subsection do not limit the
               introduction of any other competent evidence bearing upon the
               question of whether the person was under the influence of
               alcoholic beverages to the extent that his or her normal faculties
               were impaired.

Fla. Stat. § 316.1934(2) (emphasis added). Importantly, these presumptions only apply to the

impairment provisions of either state’s respective DUI statute. The Virginia presumption statute

expressly limits its application to subsections (ii), (iii), and (iv) of Code § 18.2-266. Likewise,

the Florida presumption statute contains language indicating that it applies only in proceedings

against a person alleged to be driving or controlling a vehicle “while under the influence . . .

when affected to the extent that the person’s normal faculties were impaired,” the same language

contained in the Florida definitional statute’s impairment subsection.




                                                -8-
       Moreover, both the Virginia and Florida presumptions are rebuttable. The Virginia

statute says as much on its face. See Code § 18.2-269(A); Davis v. Commonwealth, 57 Va. App.

446, 457 n.7, 703 S.E.2d 259, 264 n.7 (2011) (“In a prosecution for a violation of . . . Code

§ 18.2-266(ii), (iii), or (iv), Code § 18.2-269 creates a rebuttable presumption that the accused

was under the influence when the accused has a blood alcohol concentration of 0.08 or

higher. . . . Code § 18.2-269 only creates a method of proving intoxication.”). The Florida

presumption is likewise rebuttable because test results indicating a prohibited blood-alcohol level

constitute only “prima facie evidence” of intoxication, and the statute expressly allows for

introduction of “other competent evidence” relevant to the impairment element. Fla. Stat.

§ 316.1934(2); see Rolle, 560 So. 2d at 1157 (“We also find that section 316.1934(2)(c), Florida

Statutes, creates a permissive inference, not an unconstitutional presumption. . . . We see no

reason to interpret such language differently in this context, especially as the statute expressly

encourages the introduction of evidence besides blood-alcohol level.”). Thus, under both states’

impairment provisions, an accused would be subject to the same presumption of intoxication if

chemical testing indicated a certain blood-alcohol level, and he or she would also be entitled to

present other evidence rebutting that presumption.

       Accordingly, appellant faced essentially the same standard and presumptions under the

Florida DUI impairment provisions as he would have had he been charged for the same conduct

under Virginia’s DUI impairment provisions. The same conduct in both states equally would

have led to a conviction under either state’s impairment provisions. See Cox, 13 Va. App. at

331, 411 S.E.2d at 446. This Court therefore holds that the impairment provisions of both states’

DUI statutory schemes are substantially similar for purposes of applying Code § 18.2-270(E).




                                                -9-
                                       2. Per se provisions

       This Court next examines the Virginia and Florida DUI provisions requiring proof of a

specific blood-alcohol level. The inquiry under Code § 18.2-266(i)

               is not whether a driver was in fact “under the influence of alcohol”
               to a degree that his ability to drive safely was affected; rather, the
               issue is whether at the time he was driving his blood alcohol
               concentration was at least [.08] percent as measured by a
               subsequently administered chemical test. It is for this reason that
               subsection (i) and similar statutes in our sister states have come to
               be known as “per se” statutes.

Davis, 8 Va. App. at 298, 381 S.E.2d at 15. For the reasons that follow, this Court finds that

Virginia’s per se provisions, Code § 18.2-266(i) and (v), and Florida’s per se provisions, Fla.

Stat. § 316.193(1)(b) and (c), are also substantially similar under Code § 18.2-270(E).

       The Virginia statute requires proof of driving or operating and that the accused did so

“while such person has a blood alcohol concentration of 0.08 percent or more” as indicated by a

chemical test or “while such person has” a prohibited blood concentration of other enumerated

controlled substances. Code § 18.2-266(i), (v) (emphasis added). The Commonwealth thus

bears the burden of proving the requisite blood-alcohol concentration at the time of driving or

operating.

       The Florida per se provisions require proof of essentially the same elements as the

Virginia provisions: the government must prove the accused was “driving” or in “actual physical

control of a vehicle” and that “[t]he person has a [breath- or] blood-alcohol level of 0.08 or

more.” Fla. Stat. § 316.193(1)(b), (c). Although the Virginia statute contains the word “while”

to indicate that proof of the accused’s unlawful blood-alcohol level must reflect his or her level

at the time of driving, the Florida provisions contain no corresponding language. Thus, the key

issue in determining whether the Florida per se provisions are substantially similar to Virginia’s

provisions is how Florida law handles the timing of chemical test results.

                                               - 10 -
       Although the text of the Florida statute does not contain express language requiring proof

that the accused had the unlawful blood-alcohol level while he was driving, a plain reading of the

statute naturally suggests that this is the case. Further, the Florida Standard Jury Instructions for

Criminal Cases—which are promulgated by a committee of the Florida Supreme Court and

subject to review by that Court—clarify that the accused must have the prohibited blood-alcohol

level while he or she is driving or operating the vehicle:

               To prove the crime of Driving under the Influence, the State must
               prove the following two elements beyond a reasonable doubt:
                  1. (Defendant) drove [or was in actual physical control of] a
                      vehicle.
                  2. While driving [or in actual physical control of] the vehicle,
                      (defendant)
                  Give 2a or 2b or both as applicable.
                      a. was under the influence of [alcoholic beverages] [a
                          chemical substance] [a controlled substance] to the
                          extent that [his] [her] normal faculties were impaired.
                      b. had a [blood] [breath]-alcohol level of .08 or more
                          grams of alcohol per [100 milliliters of blood] [210
                          liters of breath].

Fla. Standard Jury Instructions in Criminal Cases 28.1 (2017) (emphasis added). Thus, as in

Virginia, the prosecution bears the burden of proving the requisite blood-alcohol concentration at

the time of driving or controlling a vehicle.

       Appellant contends that the Florida statute is not substantially similar to Virginia DUI

law because the Florida Supreme Court has characterized Florida’s per se provisions as giving

rise to “a strict-liability theory.” Robertson v. State, 604 So. 2d 783, 792 n.14 (Fla. 1992). This

label, however, is not enough to differentiate the Florida statute. In the case appellant references,

the Florida Supreme Court simply provided an overview of the Florida DUI statute’s structure:

               Florida law authorizes two alternative theories for DUI offenses:
               actual impairment, or a blood alcohol level of [0.08] or higher.
               § 316.193, Fla. Stat. (1987). The second of these is a
               strict-liability theory, since the fact of operating a motor vehicle
               with a blood-alcohol level of [0.08] or higher is an offense even if
               impairment cannot be proven. There is some redundancy in the
                                                - 11 -
               statute, however, since impairment is presumed if the
               blood-alcohol content is [0.08] or higher. § 316.1934(2), Fla. Stat.
               (1987). In any event, the presumption of impairment created by
               this last statute is a moot concern if the state proves beyond a
               reasonable doubt that the defendant operated a motor vehicle with
               an unlawful blood-alcohol level.

Id. (emphasis added). Florida’s per se provisions, much like Virginia’s analogous provisions,

simply provide an alternative theory by which the prosecution can prove DUI. See, e.g., Rolle,

560 So. 2d at 1155 (“It is clear that this statute now creates one offense, driving under the

influence, which may be proven in either of two ways: (a) by proof of impairment, or (b) by

proof of a blood-alcohol level of [0.08] percent or higher.”).

       Viewed together, the Virginia and Florida per se provisions are operationally identical.

Both set forth an offense requiring the prosecution to prove the same elements: that the

defendant was driving, operating, or controlling a vehicle and at that time had an unlawful

blood-alcohol content. As such, appellant’s conduct that was sufficient to justify a conviction

under Florida’s per se provisions would certainly have led to a conviction under Virginia’s per

se provisions. See Cox, 13 Va. App. at 331, 411 S.E.2d at 446. Therefore, this Court holds that

the per se provisions of both states’ DUI statutory schemes are also substantially similar for

purposes of applying Code § 18.2-270(E).

                                       IV. CONCLUSION

       Appellant’s conduct that was sufficient to sustain two Florida DUI convictions would

have supported convictions under Virginia’s DUI laws, regardless of whether the prosecution

used an impairment or per se theory. This Court accordingly holds that the Virginia and Florida

DUI statutory schemes are substantially similar such that the trial court properly admitted

appellant’s two Florida DUI convictions pursuant to Code § 18.2-270(E).

                                                                                          Affirmed.



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