                     COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia

DENNIS JEREMIAH LAWRENCE

v.        Record No. 0598-94-3                  OPINION BY
                                      JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                      AUGUST 15, 1995


             FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                    Jack B. Coulter, Judge Designate

             Steven P. Milani (Office of the Public Defender,
             on brief), for appellant.
             Monica S. McElyea, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



        Dennis Jeremiah Lawrence (appellant) was convicted in a

bench trial of driving after having been adjudicated an habitual

offender in violation of Code § 46.2-357.    On appeal, he argues

that the trial court erred in finding the evidence sufficient to

support a felony conviction under Code § 46.2-357(B)(2).     Finding

no error, we affirm the trial court.

        On December 10, 1993 at 2:40 a.m., Officer M. C. Wrisborne

(Wrisborne) of the Roanoke City Police Department saw appellant

driving a jeep that was weaving and five times crossed the double

yellow line into the on-coming lane.    Wrisborne stopped the

vehicle.    He detected the odor of alcohol on appellant, saw that

his eyes were bloodshot, and noticed that he was unsteady on his

feet.    Appellant failed several field sobriety tests.   Appellant

pled guilty to driving under the influence as a result of this

incident.
     At the trial on the habitual offender charge, the

Commonwealth introduced into evidence appellant's guilty plea and

conviction on the DWI charge, and his December 8, 1992

adjudication as an habitual offender. 1

     In a motion to strike, appellant argued that the evidence

was insufficient to establish that his driving "of itself . . .

endanger[ed] the life, limb, or property of another" and was thus

a felony under Code § 46.2-357(B)(2).     The trial court denied the

motion but refused to adopt a per se rule that drunk driving
"endanger[s] the life, limb, or property of another."    The trial

court held:
          I don't have any problem with [convicting]
          anybody who gets behind the wheel of an
          automobile as drunk as he was and [is] unable
          to keep his automobile in the line of
          traffic, not once or twice but four . . . or
          five . . . times.


     When the sufficiency of the evidence is challenged on

appeal, we view the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Martin v. Commonwealth, 4 Va. App. 438,
     1
      The Commonwealth elected to treat this habitual offender
charge as a first offense. Code § 46.2-357(B)(3) provides for
automatic felony punishment if the violation is a second offense:

               If the offense of driving while an order
          of adjudication as an habitual offender is in
          effect is a second or subsequent such
          offense, such person shall be punished as
          provided in subdivision 2 of this section,
          irrespective of whether the offense, of
          itself, endangers the life, limb, or property
          of another.




                                 2
443, 358 S.E.2d 415, 418 (1987).

     Code § 46.2-357(B)(2) provides as follows:
                If such driving, of itself, does
          endanger the life, limb, or property of
          another, such person shall be guilty of a
          felony punishable by confinement in the state
          correctional facility for not less than one
          year nor more than five years or, in the
          discretion of the jury or the court trying
          the case without a jury, by confinement in
          jail for twelve months . . . .


(Emphasis added).   This Court recently held in Bishop v.
Commonwealth, 20 Va. App. 206, 455 S.E.2d 765 (1995), as follows:
               The distinction between negligent
          driving and reckless driving is the critical
          element in determining punishment under Code
          § 46.2-357. In defining the conduct that
          gives rise to felony punishment under Code
            § 46.2-357(B)(2), the legislature used the
          phrase, "driving [that] . . . endanger[s] the
          life, limb, or property of another," language
          virtually identical to that found in the
          statute defining reckless driving.


Id. at 210-11, 455 S.E.2d at 767.      The Court rejected a per se

rule that drunk driving deserves felony treatment under Code

§ 46.2-357 and held that, "while evidence of intoxication is a

factor that might bear upon proof of dangerous or reckless

driving in a given case, it does not, of itself, prove reckless

driving."   Id. at 210, 455 S.E.2d at 767.    "'The essence of the

offense of reckless driving lies not in the act of operating a

vehicle, but in the manner and circumstances of its operation.'"

 Kennedy v. Commonwealth, 1 Va. App. 469, 472-73, 339 S.E.2d 905,

907 (1986) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177
S.E.2d 628, 630 (1970)).



                                   3
       In Bishop, this Court determined that Bishop's conduct did

not rise to the level required for felony punishment because

"[n]o evidence proved that [he] drove the vehicle in a dangerous

manner."   20 Va. App. at 211, 455 S.E.2d at 767.   Bishop was

arrested when he stopped at a toll booth and asked whether he

could turn around because he was lost.    Id. at 208, 455 S.E.2d at

766.   In Travis v. Commonwealth, 20 Va. App. 410, 457 S.E.2d 420

(1995), this Court held in a case similar to the instant case

that, "[b]ecause appellant was weaving within in his own lane and

into the other lane, the circumstances support a finding that his

driving 'of itself . . . endanger[ed] the life, limb, or property

of another.'"    Id. at 417, 457 S.E.2d at 423 (quoting Code

§ 46.2-357(B)(2)).

       The record in this case established that appellant's jeep

was weaving and crossed the double yellow line into the on-coming

lane several times, driving behavior that clearly rises to the

level of reckless and that could "endanger the life, limb, or

property of another."   Additionally, appellant was intoxicated, a

fact admitted by his guilty plea to driving under the influence.

The trial judge correctly found that:    (1) appellant's

intoxication alone was not enough to show that his driving "of

itself . . . endanger[ed] the life, limb, or property of

another," and (2) his intoxication when combined with the

evidence of weaving was sufficient to prove a violation of Code

§ 46.2-357(B)(2).



                                  4
     Appellant argues that, for the felony provision of Code

§ 46.2-357(B)(2) to apply, the driving behavior must actually

harm another person or his property or must require another

person to take evasive action to avoid injury or damage to his

property.   We disagree.   The purpose of the felony habitual

offender statute is to deter reckless driving behavior by those

already deemed to be a danger on the road by increasing the

punishment for those whose driving behavior endangers the public.

The mitigated, misdemeanor punishment was a legislative attempt

to distinguish between those situations in which a barred driver

continues to put the public at risk by driving in a reckless

manner from those where the driving behavior is less culpable.

See, e.g., Bishop, 20 Va. App. at 211, 455 S.E.2d at 767.

     Accordingly, the decision of the trial court is affirmed.

                                                    Affirmed.




                                  5
