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Iinvoluntary Manslaughter Virginia Code ยง 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.
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