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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.
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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).
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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.
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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.
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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.
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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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