                     COURT OF APPEALS OF VIRGINIA


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


ANTON LAVELLE WEBB
                                           MEMORANDUM OPINION * BY
v.   Record No. 2749-01-2                JUDGE ROSEMARIE ANNUNZIATA
                                                MARCH 18, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                   Robert G. O'Hara, Jr., Judge

          Andrew E. Weaver for appellant.

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


     Anton Lavelle Webb, appellant, was convicted of driving under

the influence ("DUI") in violation of Code § 18.2-266.    Webb's

conviction was elevated to a felony offense for sentencing

purposes, pursuant to Code § 18.2-270(E).   On appeal, Webb

contends the trial court erred in admitting evidence of a prior

DUI conviction, on the ground that the trial court improperly

based judicial notice of the ordinance under which he was

previously convicted on his arrest warrant.   He reasons that his

conviction should be reversed because the trial court therefore

could not establish the ordinance's substantial similarity to Code



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
§ 18.2-266.    For the reasons that follow, we affirm the decision

of the trial court.

                              Background

     The material facts underlying this appeal are not in dispute.

Webb was indicted on June 5, 2001 for driving while under the

influence, in violation of Code § 18.2-266, and was convicted in a

bench trial on July 12, 2001. 1   At trial, the Commonwealth sought

to establish that Webb had two prior convictions for DUI, in order

to elevate the offense to a felony pursuant to Code

§ 18.2-270(E). 2   Only the admission of his conviction in 1992

under § 9-3 of a Southhampton County, Virginia ordinance is at

issue on appeal.

     In order to elevate the conviction to a felony, the

Commonwealth was required to establish Webb's 1992 conviction and

to prove that § 9-3 of the Southhampton County ordinance and

Virginia Code § 18.2-266 were substantially similar.    The


     1
       Code § 18.2-266 provides, in relevant 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 . . . ."
     2
         Code § 18.2-270(E) states:

            For the purposes of this section, an adult
            conviction of any person . . . under the
            following shall be considered a prior
            conviction: . . . (ii) the provisions of
            §§ 18.2-51.4, 18.2-266 . . . the ordinance
            of any county, city or town in this
            Commonwealth . . . substantially similar to
            the provisions of . . . §§ 18.2-266 through
            18.2-269 . . . .
                                - 2 -
Commonwealth sought to have Webb's arrest warrant admitted into

evidence for that purpose. The arrest warrant read, in part:

          [T]he accused did unlawfully in violation of
          Section 9-3, Code or Ordinance of this city,
          county, or town operate a motor vehicle
          (engine or train) while such person had a
          blood alcohol concentration of 0.10% or more
          by weight by volume and/or while such person
          was under the influence of alcoholic
          beverages or other self-administered
          intoxicants or drugs of whatsoever nature
          . . . CLASS one MISDEMEANOR.

     Webb objected to the arrest warrant's admission, on the

ground that the Commonwealth was required to provide the trial

court with the text of § 9-3 of the Southhampton County ordinance.

He argued that the references in the warrant were not a proper

substitute for the ordinance text and, therefore, the warrant did

not provide a sufficient basis upon which to determine the

ordinance's substantial similarity to Code § 18.2-266.    The trial

court disagreed and took judicial notice of the ordinance from the

language that appeared on the warrant, stating it "could consider

the charge as it appears on the face of the warrant."    The court

found that the Southhampton ordinance was substantially similar to

the provisions of Code § 18.2-266. 3




     3
       The trial court rejected the Commonwealth's contention
that that statute required proof of substantial similarity only
for prior convictions in other states, and Webb has not appealed
the trial court's conclusion. Thus, the issue is not before us
on appeal.
                              - 3 -
                             Analysis

     On appeal, Webb contends the trial court erred in admitting

the arrest warrant from his 1992 conviction into evidence, on the

ground that it does not constitute a reliable basis upon which to

take judicial notice and to determine the ordinance's substantial

similarity to Code § 18.2-266.   This contention is without merit.

     "Judicial notice permits a court to determine the existence

of a fact without formal evidence tending to support that fact."

Scafetta v. Arlington County, 13 Va. App. 646, 648, 414 S.E.2d

438, 439, aff'd on reh'g, 14 Va. App. 834, 425 S.E.2d 807 (1992).

"A trial court may take judicial notice of those facts that are

either (1) so 'generally known' within the jurisdiction or (2) so

'easily ascertainable' by reference to reliable sources that

reasonably informed people in the community would not regard them

as reasonably subject to dispute."   Taylor v. Commonwealth, 28

Va. App. 1, 7-8, 502 S.E.2d 113, 116 (1998) (en banc) (quoting

Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698, 703

(1978)).

     Code § 19.2-265.2 governs the taking of judicial notice in

the context of statutes and ordinances.   It provides:

           A. Whenever, in any criminal case, it
           becomes necessary to ascertain what the law,
           statutory or otherwise, of this
           Commonwealth, of another state of the United
           States, or another country, or of any
           political subdivision or agency of the same
           is, or was, at any time, the court shall
           take judicial notice thereof whether
           specially pleaded or not.
                               - 4 -
          B. The court, in taking such notice, shall
          consult any book, record, register, journal
          or other official document or publication
          purporting to contain, state, or explain
          such law, and may consider any evidence or
          other information or argument that is
          offered on the subject.

     Under the plain language of paragraph B, the court is

directed to consult any "official document or publication"

"purporting to contain, state, or explain such law."    Applying the

statute to the case at bar, we find the arrest warrant constitutes

an "official document."   Furthermore, the warrant purports "to

contain, state or explain" the relevant ordinance. 4   The warrant

directs the court to the provision of the ordinance at issue by

stating the ordinance section number under which Webb was charged.

The warrant further states the particular elements of the DUI

offense and provides that the violation is a Class 1 misdemeanor.

We find that the court properly admitted the warrant and consulted

it as evidence of the ordinance at issue in taking judicial notice

of its provisions.

     Webb's related contention that the trial court improperly

took judicial notice of the ordinance because the Commonwealth

failed to provide the court with an authenticated copy of the

ordinance, is without merit.   In Oulds v. Commonwealth, 260 Va.



     4
       "Purport" is defined as "to convey, imply or profess
outwardly (as meaning, intention or true character); have the
often specious appearance of being, intending, claimant (something
implied or inferred); to have in mind." Webster's Third New
International Dictionary 1847 (1993).
                               - 5 -
210, 532 S.E.2d 22 (2001), the Virginia Supreme Court held that

the Commonwealth is not required to introduce into evidence an

authenticated copy of the city ordinance at issue; a reference to

the ordinance provision by section number and by content is a

sufficient predicate for the taking of judicial notice.   Id. at

213, 532 S.E.2d at 35.   In the case at bar, we find the trial

court properly took judicial notice of the Southhampton County

ordinance by reference to the arrest warrant it admitted.

     Webb finally argues that the Commonwealth failed to prove

that the Southhampton ordinance was substantially similar to Code

§ 18.2-266, as required by Code § 18.2-270(E), in order to elevate

his conviction for DUI to a felony.   His contention is without

merit.

     Code § 18.2-270(E) provides as follows:

          For the purposes of this section, an adult
          conviction of any person . . . under the
          following shall be considered a prior
          conviction: . . . (ii) the provisions of
          §§ 18.2-51.4, 18.2-266 . . . the ordinance
          of any county, city or town in this
          Commonwealth . . . substantially similar to
          the provisions of . . . §§ 18.2-266 through
          18.2-269 . . . .

Thus, the Commonwealth bears the burden of presenting a prima

facie showing of substantial similarity between the ordinance at

issue in the prior conviction and the Code.    See Rufty v.

Commonwealth, 221 Va. 836, 837-39, 275 S.E.2d 584, 585-86 (1981)

(finding the Commonwealth bears the burden of establishing a prima

facie showing of substantial similarity and, upon such showing,
                               - 6 -
the burden shifts to the defendant to move forward with evidence

of dissimilarity).   "'Prima facie evidence is evidence which on

its first appearance is sufficient to raise a presumption of fact

or establish the fact in question unless rebutted.'"   Commonwealth

v. Dalton, 11 Va. App. 620, 623, 400 S.E.2d 801, 803 (1991)

(quoting Babbitt v. Miller, 192 Va. 372, 379-80, 64 S.E.2d 718,

722 (1951)).

     In determining whether an ordinance is substantially similar

to the Code, courts must examine the provisions of both laws.

Rufty, 221 Va. at 838-39, 275 S.E.2d at 589.   Based on the

language on the face of the warrant reflecting the Southhampton

County Code provision underlying the offense, we find the

evidence sufficient to establish that the ordinance is

substantially similar to Code § 18.2-266.    The plain language of

both the arrest warrant referencing the ordinance and the

statute makes manifest that they are substantially similar.      The

language in the warrant charged that Webb,

          in violation of Section 9-3, Code or
          Ordinance of this city, county, or town
          operate[d] a motor vehicle (engine or train)
          while such person had a blood alcohol
          concentration of 0.10% or more by weight by
          volume and/or while such person was under
          the influence of alcoholic beverages or
          other self-administered intoxicants or drugs
          of whatsoever nature.

The language tracks that of Code § 18.2-266, which states, "It

shall be unlawful for any person to drive or operate any motor


                               - 7 -
vehicle, engine or train (i) while such person has a blood

alcohol concentration of 0.08 percent or more . . . ."

     In addition to the plain language setting forth the

elements of the offense under the County ordinance, the

classification of the offense under the County ordinance as a

Class 1 misdemeanor supports the trial judge's conclusion that a

prima facie case of substantial similarity was made.     The trial

court could properly conclude that the ordinance's sentencing

provision was valid and in conformance with the law of the

Commonwealth, thus carrying with it the same penalty for a Class 1

misdemeanor set forth in Code § 18.2-11, viz., "confinement in

jail for not more than 12 months and a fine of not more than

$2500, either or both." 5   See Narrows v. Clear-View Cable TV, 227

Va. 272, 280, 315 S.E.2d 835, 840 (1984) ("Every intendment will

be made in favor of lawfulness of the exercise of municipal

power."); see also King v. County of Arlington, 195 Va. 1084,

1090, 81 S.E.2d 587, 591 (1954) ("It is . . . fundamental that

local ordinances must conform to and not be in conflict with the

public policy of the State as embodied in its statutes . . . .




     5
       Indeed, the punishment imposed on Webb under the
Southhampton County ordinance was consistent with the penalties
provided under the state statutes. For his 1992 conviction, Webb
was sentenced to pay a $200 fine and his license was suspended for
6 months. The fine and license revocation are within the
permissible limits for a Class 1 misdemeanor. See Code
§§ 18.2-11, 18.2-270.
                               - 8 -
[T]hat principle is embodied in our statutes which require that

local ordinances must 'not be inconsistent with' the state law."

(quoting Code § 1-13.17))). 6   The presumption that the

Southhampton ordinance was valid and in conformance with Virginia

law was not rebutted by Webb at trial.   The court thus could

properly base its analysis of substantial similarity on the

sentence provisions as well as on the elements of the offense,

enunciated in the warrant's reference to the county ordinance.

     In conclusion, in light of the plain language of the arrest

warrant setting forth both the elements of the offense and the

penalty that could be imposed under the Southhampton County

ordinance, we find that an unrebutted prima facie showing was made

that the ordinance and the statute were substantially similar.    We

accordingly find that the trial court did not err in so

concluding, and we affirm Webb's conviction.

                                                           Affirmed.




     6
        Code § 1-13.17 provides: "When the council or
authorities of any city of town . . . are authorized to make
ordinances . . . it shall be understood that the same must not
be inconsistent with the Constitution and law of the United
States or of this Commonwealth."

                                - 9 -
