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Iinvoluntary Manslaughter Virginia Code § 18.2-36.1(A) DUI City Virginia Beach Fairfax County Loudoun Lynchburg
MARIO UDASCO DALO v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
November 20, 2001
On the evening of October 5, 1999, appellant was driving on Shore Drive in the City of Virginia Beach when he struck James Cone and Kathy Phelan. Cone was injured, but not fatally. Phelan was alive at the scene, but later died from her injuries. When Virginia Beach Police Officer Scott Bishop arrived at the scene, he found appellant's speech was slurred, his eyes were glassy, and he swayed as he stood. Appellant also smelled of alcohol and could not pass a number of field sobriety tests. Appellant admitted he had consumed alcohol that evening. A breath test revealed his blood alcohol level was .11. Appellant was charged with involuntary manslaughter under Code § 18.2-36.1(A) and with DUI. The DUI warrant originally recited a violation of the Virginia Beach City Code. The prosecutor amended the warrant to reflect a violation of Code § 18.2-266(ii), (iii), or (iv). The language on the DUI warrant that referred to Code § 18.2-266(i), allowing convictions based on a blood alcohol concentration of .08 or more, was struck by the prosecutor. The district court convicted appellant of the amended DUI charge and certified the manslaughter charge to the grand jury. In the circuit court, appellant moved to dismiss the indictment on double jeopardy grounds. After both parties briefed the issue, the trial court heard argument and denied the motion to dismiss.
Whether double jeopardy prevented defendant's conviction of both crimes required examining if the legislature intended to impose multiple punishments for these crimes?
The court finds that the defendant who was convicted of DUI under Code § 18.2-266(i) clearly can be convicted of involuntary manslaughter in violation of Code § 18.2-36.1 without violating double jeopardy principles. Further the two statutes proscribed the same conduct did not mean the double jeopardy clause precluded the imposition of cumulative punishments. A comparison of § 18.2-36.1 and several murder statutes indicated the general assembly's intention to allow multiple punishments, similar to allowing conviction for both felony murder and the underlying felony. Defendant could clearly be convicted of both driving under the influence under Va. Code Ann. § 18.2-266(i) and violating § 18.2-36.1, and there was no indication the legislature did not intend to treat violations of Va. Code Ann. § 18.2-266(ii), (iii), and (iv) similarly.
Conclusion:
The General Assembly clearly intended to allow multiple punishments in this case. For the reasons stated above, we affirm the conviction.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
About the Author
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Lynchburg City, Loudoun County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge.
Mr. Sriskandarajah is a Virginia lawyer who primarily focuses his practice on defending complex criminal cases in federal and state courts, handling complex divorce cases & immigration cases before the federal courts. He is the owner and CEO of the SRIS Law Group. The law firm has more than 11 offices to serve the clients of the SRIS Law Group. If you wish to contact the SRIS Law Group, please contact us at 888-437-7747. We look forward to helping you.
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