                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia


HENRY MAGRUDER WILLIAMS
                                                   OPINION BY
v.   Record No. 1342-01-2                     JUDGE RICHARD S. BRAY
                                                  JULY 2, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        Robert W. Duling, Judge

            Craig S. Cooley, for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (Jerry W. Kilgore, Attorney General,
            on brief), for appellee.


     Henry Magruder Williams (defendant) was convicted in a bench

trial on an amended indictment alleging that, "[o]n or about

May 19, 2000," he "did unlawfully and feloniously operate a motor

vehicle while under the influence of alcoholic beverages . . .

after having been convicted of two like offenses within ten

years," a violation of Code §§ 18.2-266 and -270.      On appeal,

defendant challenges the sufficiency of the evidence to establish

the existence of two prior convictions at the time of the instant

offense, proof he views as indispensable to the felony conviction.

Defendant further complains the trial court erroneously admitted a

"Certificate of Blood Alcohol Analysis" (certificate) into

evidence.    Finding no error, we affirm the conviction.
                                  I.

        The relevant facts are uncontroverted.   On October 18,

1994, defendant was convicted for "Driving While Intoxicated"

(DUI) in violation of Code § 18.2-266.    Thereafter, on March 23,

2000, he was again charged with DUI, second offense, and trial

was scheduled in the Richmond General District Court for May 31,

2000.    Awaiting trial on the latter offense, defendant was

stopped by Richmond police while operating a vehicle on May 19,

2000, at 2:04 a.m. and arrested for DUI at 2:24 a.m.     A related

analysis of defendant's breath, conducted at 3:40 a.m. and

reported on the disputed certificate, disclosed an alcohol

concentration of 0.13 grams per 210 liters, and a warrant issued

charging him with DUI, second offense, a misdemeanor.

        On May 31, 2000, defendant was convicted of the DUI

committed on March 23, 2000.    Learning of the conviction, the

Commonwealth successfully moved the Richmond General District

Court to nolle prosequi the prosecution then pending for the

May 19, 2000 DUI.    However, on September 5, 2000, a grand jury

of the trial court indicted defendant for feloniously committing

the May offense, alleging he had been "convicted of like

offenses on October 18, 1994."    Prior to trial and over

defendant's objection, the Commonwealth was permitted to amend

the indictment to charge DUI "[o]n or about May 19, 2000 . . .

after having been convicted of two like offenses within ten



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years," in violation of Code §§ 18.2-266 and -270.   (Emphasis

added). 1

     Also prior to trial, defendant moved to suppress the

certificate, arguing Virginia's "implied consent" law, Code

§ 18.2-268.2, pertains only when an accused is "arrested within

two hours of the offense."   Because "[t]he nolle prosequi of the

original arrest and charge terminated the previous arrest,"

defendant contended the subsequent "arrest[]" on the indictment,

"months after the event," was without implied consent to a

breath test.   The trial court, however, disagreed and overruled

the motion.

     At trial, the Commonwealth introduced into evidence the

disputed certificate and a DMV transcript that reflected the

October 18, 1994 and the May 31, 2000 DUI convictions.

Defendant moved to strike the Commonwealth's evidence, arguing

that, at the time of the instant offense, May 19, 2000, he had

suffered only a single prior DUI conviction, on October 18,

1994, and, therefore, was subject to conviction "of no greater

than a misdemeanor driving under the influence . . . ," as a

second offense.   The court overruled the motion and convicted

defendant of "DUI, after having been convicted of two like

offenses within ten years," the felony charged in the amended

indictment, resulting in the instant appeal.


     1
       On appeal, defendant does not challenge the form or
substance of the amended indictment.

                               - 3 -
                                 II.

     Code § 18.2-266 prohibits "any person to drive or operate

any motor vehicle . . . while such person is under the influence

of alcohol."   At the time of the subject offense, Code

§ 18.2-270 enhanced the penalty for repeat DUI offenders,

providing, in pertinent part:

          Any person convicted of a third or
          subsequent offense committed within ten
          years of an offense under § 18.2-266 shall
          be guilty of a Class 6 felony. 2

Defendant maintains such enhancement was "designed to impose a

higher punishment on those that continue to break the law even

after they have been previously convicted."   He, therefore,

posits that enhancing punishment for persons, like himself,

"charged with a 3rd offense . . . before they have been punished

for the 2nd offense" denies "adequate time or incentive to

reform before the third conviction."    Defendant's argument,

however, is at odds with a recent decision of the Supreme Court

of Virginia, Thomas v. Commonwealth, 256 Va. 38, 501 S.E.2d 391

(1998).

     In Thomas, the Court was called upon to construe Code

§ 46.2-357(B)(3), a statute that prescribes an enhanced penalty

for a "second or subsequent . . . offense" of "driving while




     2
       Amendments to Code § 18.2-270, effective July 1, 2000,
substituted, inter alia, "three or more offenses of § 18.2-266"
for "a third or subsequent offense."

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. . . an habitual offender." 3   Like defendant, Thomas contended

enhancement for the second or subsequent offense was appropriate

only for offenses committed after actual conviction for an

earlier like offense.

     The Court disagreed and affirmed imposition of the enhanced

penalty, concluding that the statutory reference to "offense,"

rather than "conviction," evinced the intent of the General

Assembly to authorize "punishment enhancement" for an offense

committed before a conviction on the requisite predicate

offenses.    Id. at 41-42, 501 S.E.2d at 392.   Consistent with

     3
         Code § 46.2-357(B) provides:

            Any person found to be an habitual offender
            under this article, who is thereafter
            convicted of driving a motor vehicle . . .
            shall be punished as follows:

            *       *     *      *       *      *     *

            2. If such driving, of itself, does
            endanger the life, limb, or property of
            another, such person shall be guilty of a
            felony . . . and no portion of such sentence
            shall be suspended except that . . . (ii) in
            cases wherein such operation is necessitated
            in situations of apparent extreme emergency
            which require such operation to save life or
            limb, said sentence, or any part thereof may
            be suspended.

            3. If the offense of driving while a
            determination 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
            subsection . . . .

(Emphasis added).


                                 - 5 -
such rationale, the Court noted that "the purpose of Code

§ 46.2-357 is to deter criminal conduct by punishing those who

repeatedly drive after having been declared an habitual

offender, rather than to reform habitual offenders."    Id. at 42,

501 S.E.2d at 393.

     Here, Code § 18.2-270, similar to Code § 46.2-357, enhances

the offense and attendant punishment from a misdemeanor to a

felony upon conviction of "a third or subsequent offense

committed within ten years of an offense under § 18.2-266."

Code § 18.2-270 (emphasis added).   The statute does not suggest

that convictions for the requisite prior offenses must precede

commission of the "third or subsequent offense." 4   Therefore, any

third or subsequent DUI conviction within the period prescribed

by Code § 18.2-270 triggers the enhanced punishment.    Otherwise,

          an offender could commit multiple unlawful
          acts of driving [under the influence of
          alcohol] without fear of being punished for
          a felony merely because the offender could
          not be tried and convicted quickly enough
          between offenses. An interpretation of the
          statute that allows a defendant to violate
          it with impunity would be contrary to the
          clear legislative intent.

Thomas, 256 Va. at 42, 501 S.E.2d at 393 (citations omitted).




     4
       Recidivist statutes may specifically require prior
conviction as a condition to imposition of an enhanced
punishment. See e.g., Code §§ 18.2-57.2, -67.5:1, -67.5:2,
-67.5:3, and -104.

                              - 6 -
                               III.

     Code § 18.2-268.2, Virginia's "implied consent" law,

provides, in pertinent part:

           A. Any person . . . who operates a motor
           vehicle upon a highway . . . in this
           Commonwealth shall be deemed thereby, as a
           condition of such operation, to have
           consented to have samples of his blood,
           breath, or both blood and breath taken for a
           chemical test to determine the alcohol,
           drug, or both alcohol and drug content of
           his blood, if he is arrested for violation
           of § 18.2-266 or § 18.2-266.1 or of a
           similar ordinance within two hours of the
           alleged offense.

(Emphasis added).   "The purpose of the implied consent law

requiring the test to be taken is to determine the concentration

of alcohol in a driver's blood or breath sample, and thereby

determine the driver's state of intoxication or sobriety."

Quinn v. Commonwealth, 9 Va. App. 321, 324, 388 S.E.2d 268, 270

(1990).   Hence, Code § 18.2-268.2 is integral to a statutory

scheme of "procedural requirements for the taking, handling,

identifying and disposing of blood samples," all of which

facilitate the "admissibility of the results of . . . blood [or

breath] tests at the trial for a Code § 18.2-266 offense."

Thurston v. City of Lynchburg, 15 Va. App. 475, 478-79, 424

S.E.2d 701, 703 (1992).

     Generally, failure to comply with Code § 18.2-268.2 or

companion statutes precludes introduction of the relevant test

results in proof of DUI.   See Smith v. Commonwealth, 32 Va. App.


                               - 7 -
228, 233-34, 527 S.E.2d 456, 459 (2000) (implied consent does

not attend an unlawful arrest); Thurston, 15 Va. App. at 481,

424 S.E.2d at 704 (admissibility of "results of tests" is

conditional upon adherence to "statutory mandates").    Thus,

because Code § 18.2-268.2 is predicated upon an arrest "within

two hours of the alleged offense," defendant reasons that arrest

on the indictment, several months after the offense and

following "nolle prosequi of the original arrest," did not

comport with the two-hour limitation of Code § 18.2-268.2,

thereby precluding admission of the certificate in issue.    In

support of his argument, he mistakenly relies upon Armel v.

Commonwealth, 28 Va. App. 407, 505 S.E.2d 378 (1998).

     In Armel, the accused was initially arrested on warrants

that alleged he uttered a check with the intent to defraud and

feloniously possessed a firearm.   Upon motion of the

Commonwealth, the charges were nolle prossed in the general

district court, but Armel was subsequently indicted for the same

offenses, a procedure he claimed impermissibly "denied him a

preliminary hearing on the original warrants in violation of

Code § 19.2-218."   Id. at 408, 505 S.E.2d at 379.   We disagreed,

concluding that, "upon nolle prosequi of the offenses charged in

the original warrants, defendant was no longer 'arrested on a

charge of felony' . . . and was thereafter properly indicted

without the benefit of a preliminary hearing."   Id. at 411, 505

S.E.2d at 380.

                               - 8 -
     In contrast to Armel, the instant appeal presents an

evidentiary issue, clearly distinguishable and controlled by

statute.   Code § 18.2-268.2 implied defendant's consent to a

blood or breath test, provided he was "arrested within two hours

of the [DUI] offense."   Defendant does not challenge the

validity of the original DUI arrest on May 19, 2000, at

2:24 a.m., for an offense committed at 2:04 a.m.   He, therefore,

does not dispute the attendant compliance with Code § 18.2-268.2

and related statutes in testing the alcohol content of his

breath.    Accordingly, defendant's consent to the test was

properly implied by statute, thereby rendering the resulting

certificate of analysis admissible evidence in the instant

prosecution, notwithstanding subsequent termination of the

original warrant by nolle prosequi.

     We, therefore, affirm the conviction.

                                                          Affirmed.




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