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. 
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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.
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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 
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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 
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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.