                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia


OEUP THO
                                          MEMORANDUM OPINION * BY
v.   Record No. 2992-98-2              JUDGE JERE M. H. WILLIS, JR.
                                                MAY 9, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                        T. J. Hauler, Judge

           Robert P. Geary (Joseph McGrath, on brief),
           for appellant.

           Christopher G. Hill, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     On appeal from his convictions of driving under the

influence, in violation of Code § 18.2-266, and involuntary

manslaughter, in violation of Code § 18.2-36.1(B), Oeup Tho

contends that the trial court violated his Fifth Amendment right

against double jeopardy. 1

     On January 1, 1998, Tho's vehicle struck another vehicle,

killing the other vehicle's passenger.   Arrest warrants were


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       The petition was granted solely on the constitutional
issue. Tho's petition for appeal that assigned error to the
trial court's alleged violation of Code § 19.2-294 was denied.
See Phillips v. Commonwealth, 27 Va. App. 674, 677-78, 500
S.E.2d 848, 850 (1998), aff'd, 257 Va. 548, 514 S.E.2d 340
(1999).
issued charging him with driving under the influence of alcohol

and involuntary manslaughter.   The DUI warrant was executed at

11:08 p.m. on January 1, 1998, and the involuntary manslaughter

warrant was executed at 2:51 a.m. on January 2, 1998.

     In a district court hearing on June 2, 1998, Tho was

convicted of driving under the influence and the involuntary

manslaughter charge was certified to the circuit court.   On July

20, 1998, the grand jury indicted Tho for involuntary

manslaughter.   Tho moved for dismissal of the charge, asserting

former jeopardy.   The trial court denied the motion, holding

that the prosecutions for DUI and involuntary manslaughter were

not successive and that the offenses had no common identity but

were separate and distinct.   Tho then pled guilty, reserving the

right to appeal the trial court's ruling on the motion.

     Code § 18.2-266 provides, in pertinent part:

               It shall be unlawful for any person to
          drive or operate any motor vehicle . . . (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 . . . , (ii) while such person
          is under the influence of alcohol, (iii)
          while such person is under the influence of
          any narcotic drug . . ., or (iv) while such
          person is under the combined influence of
          alcohol and any drug . . . .

     Code § 18.2-36.1(A) provides:

               Any person who, as a result of driving
          under the influence in violation of
          subdivision (ii), (iii), or (iv) of [Code]
          § 18.2-266, unintentionally causes the death

                                - 2 -
          of another person, shall be guilty of
          involuntary manslaughter.

     The warrant charging Tho with driving while under the

influence of alcohol alleged that he did:

          drive or operate a motor vehicle under the
          influence of alcoholic beverages or other
          self-administered intoxicants and/or drugs
          as described in Section 18.2-266(i), (ii),
          (iii) and/or (iv) 1950 CODE OF VIRGINIA AS
          AMENDED.

     The indictment charging Tho with involuntary manslaughter,

with reference to Code § 18.2-36.1, alleged that he did:

          kill and slay Joannah Marseille by
          negligence so gross, wanton and culpable as
          to show a reckless disregard of human life,
          and as a result of driving under the
          influence, in violation of subdivision (ii),
          (iii), or (iv) of Section 18.2-266, did kill
          and slay Joannah Marseille, against the
          peace and dignity of the Commonwealth of
          Virginia.

     Tho contends that his convictions involve successive

prosecutions for the same offense.    However, the prosecutions on

the two charges were not successive, but were concurrent,

involving a single evidentiary hearing resulting in conviction

of the misdemeanor and certification of the felony.    See

Phillips v. Commonwealth, 257 Va. 548, 553, 514 S.E.2d 340, 343

(1999).

     Noting that the Fifth Amendment protects against multiple

punishments for the same offense, see Cartwright v.

Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982), Tho contends

that his offense of driving while intoxicated was a necessary

                              - 3 -
and included element of the involuntary manslaughter charge and

that his conviction for driving while under the influence

precluded re-proof of that offense as proof of the greater,

inclusive offense of involuntary manslaughter.   He argues that

by including driving under the influence, with specific

reference to its statutory definition, as a required element of

proof, Code § 18.2-36.1(A) incorporates all the elements of the

driving under the influence charge and, thus, cannot be proved

without proving again the driving under the influence charge.

We do not reach this issue.

     To gain the preclusive effect of a double jeopardy plea,

the proponent of that plea must establish the common identity of

the relevant charges.   See Low v. Commonwealth, 11 Va. App. 48,

50, 396 S.E.2d 383, 384 (1990).   The record in this case fails

to establish that identity.

     Code § 18.2-36.1(A) refers only to subdivisions (ii),

(iii), and (iv) of Code § 18.2-266.    The warrant charging Tho

with driving under the influence alleges violation of those

three subdivisions, but charged him as well with a violation of

subdivision (i).   The evidence supported conviction under

subdivision (i).   Tho's conviction on the DUI charge was stated

generally and was not limited to a conviction under subdivisions

(ii), (iii), or (iv).   Thus, his conviction for driving under

the influence did not necessarily fall within the scope of the

reference contained in Code § 18.2-36.1(A).

                               - 4 -
The judgment of the trial court is affirmed.

                                               Affirmed.




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