                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia


WILLIAM BRYANT BRANTLEY, s/k/a
 WILLIAM BRYAN BRANTLEY

v.        Record No. 1061-94-3        MEMORANDUM OPINION *
                                  BY JUDGE SAM W. COLEMAN III
CITY OF DANVILLE                       FEBRUARY 20, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                     James F. Ingram, Judge
          Glenn L. Berger (Shreve & Berger, on brief),
          for appellant.

          Robert L. Adams, Jr., Assistant Attorney for
          the Commonwealth, for appellee.



     William Bryant Brantley was charged and convicted of driving

under the influence of alcohol in violation of Danville City

Ordinance §§ 21-48 and 21-49.3.   Brantley contends that

§ 21-49.3 was void at the time of his arrest because it

prescribed a lesser punishment than Code § 18.2-270.   We reject

this contention and affirm the defendant's conviction.

     Danville City Ordinance § 21-49.3 makes driving in Danville

while under the influence of drugs or intoxicants unlawful and

provides the punishment for the offense.   On November 13, 1993,

the date of the defendant's arrest, § 21-49.3 incorporated the

penalties set forth in Virginia Code § 18.2-270 as amended and in

effect on July 1, 1992.   Effective July 1, 1993, Code § 18.2-270

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
had been amended to define a separate offense with an enhanced

penalty for driving under the influence "while transporting a

person seventeen years of age or younger."   Danville did not

amend § 21-49.3 to include this enhanced penalty offense until

November 16, 1993, three days after the defendant's arrest.

Thus, the defendant contends that the Danville ordinance in

effect at the time of his arrest is void because it violated Code

§ 15.1-132, which provides that no local "ordinance shall provide

for a lesser punishment than that prescribed by general law for a

similar offense."
     A defendant can challenge only the portion of an ordinance

that affects him.   Sos v. Commonwealth, 14 Va. App. 862, 865, 419

S.E.2d 426, 428 (1992).   In the present case, the record contains

no evidence suggesting that the defendant was transporting a

person seventeen years of age or younger, or that the trial court

considered that offense and an enhanced sentence for transporting

such a person.   Accordingly, the enhanced penalty provided by the

July 1, 1993, amendment to Code § 18.2-270 did not apply to the

defendant, and Danville City Ordinance, as applied in this case,

conformed to Code § 18.2-270.   We therefore affirm the

defendant's conviction.
                                                          Affirmed.




                                -2-
BENTON, J., dissenting.



     By statute, the General Assembly has specifically authorized

local governments to enact ordinances prohibiting driving under

the influence only under the following terms:
          The governing bodies of cities, towns and
          counties may make ordinances prohibiting the
          driving of motor vehicles, . . . in such
          cities, towns and counties by any person
          while under the influence of any . . . liquid
          beverage or article containing alcohol or
          wine or under the influence of any other
          self-administered intoxicant or drug of
          whatsoever nature, and may prescribe fines
          and other punishment for violations of such
          ordinances. . . . No such ordinance shall
          provide for a lesser punishment than that
          prescribed by general law for a similar
          offense. Such ordinances may provide the
          same penalties for violations thereof as are
          provided by general law for similar offenses
          . . . and the judgment of conviction for a
          violation of any such ordinance shall operate
          to deprive the person convicted of the right
          to drive or operate any motor vehicle, engine
          or train in this Commonwealth to the same
          extent as if such conviction had been under
          the general law of the Commonwealth for a
          similar offense, or to a greater extent if so
          provided in such ordinance.


Code § 15.1-132 (emphasis added).

     In Commonwealth v. Rivera, 18 Va. App. 103, 442 S.E.2d 410
(1994), this Court ruled as follows:
          Article VII, Section 2 of the Constitution of
          Virginia limits the powers of local
          governments to exercise only those powers
          that the General Assembly may provide by
          general law or special act. Dillon's Rule
          provides that "the powers of [local
          governments] are fixed by statute and are
          limited to those conferred expressly or by
          necessary implication." Any ordinance not
          passed in accord with these principles is


                               -3-
          void and unconstitutional.


Id. at 107, 442 S.E.2d at 412 (citation omitted).    Thus, the City

of Danville was required to conform its ordinances "in strict

accord" with state law.   Boyles v. City of Roanoke, 179 Va. 484,

487, 19 S.E.2d 662, 663 (1942).    It failed to so do.

     Brantley was charged under the City of Danville Ordinance

§ 21-48 which states as follows:
          The provisions of Section 18.2-266 of the
          Code of Virginia, 1950, as amended, as in
          effect of July 1, 1992, pertaining to driving
          motor vehicles while intoxicated, are hereby
          adopted and incorporated mutatis mutandis in
          the chapter by reference, pursuant to the
          authority contained in Section 46.2-1313 of
          the Code of Virginia, 1950, as amended.


The penalty for a violation of Ordinance § 21-48 is specified as

follows in Ordinance § 21-49.3:
          The provisions of Section 18.2-270 of the
          Code of Virginia, 1950, as amended, as in
          effect on July 1, 1992, pertaining to penalty
          for driving while intoxicated, subsequent
          offense, and prior conviction, are hereby
          adopted and incorporated mutatis mutandis in
          this chapter by reference, pursuant to the
          authority contained in Section 46.2-1313 of
          the Code of Virginia, 1950, as amended.


     These ordinances were in effect on the date of the offense.

The state statutes in effect on November 13, 1993, the date of

the offense, provided greater punishment than was specified under

the city ordinances.   The city ordinances were not amended to

conform to state law until November 16, 1993.

     The city ordinance in effect at the time of this proceeding

violated state law because it provided for a lesser punishment

                                  -4-
for violation of the city's ordinance prohibiting driving under

the influence of alcohol than was mandated by Code § 18.2-270 for

violation of the general law for the same offense.     See Parker v.

City of Newport News, 17 Va. App. 253, 436 S.E.2d 290 (1993).

Because the city failed to timely amend its ordinance, it

exercised power not granted by the legislature.    The ordinance's

proscription was ultra vires and void ab initio.     School Board v.

Burley, 225 Va. 376, 379, 302 S.E.2d 53, 55 (1983).
     Because the ordinance was not in conformity with the express

authorization of state law and because it adopted the provisions

of Code § 18.2-266 as a whole, I would hold that the entire

ordinance was void ab initio.   Thus, I would hold that Sos v.

Commonwealth, 14 Va. App. 862, 419 S.E.2d 426 (1992), does not

bar Brantley from challenging the void ordinance.    Brantley's

challenge is not that the ordinance is vague; he contends that

the ordinance is void.   Furthermore, severance cannot cure the

Dillon Rule violation.




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