COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Elder and Fitzpatrick 

Argued at Salem, Virginia 

DENNIS JEREMIAH LAWRENCE 

v. Record No. 0598-94-3 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA AUGUST 15, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Jack B. Coulter, Judge Designate 

 Steven P. Milani (Office of the Public Defender, 

on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Dennis Jeremiah Lawrence (appellant) was convicted in a 

bench trial of driving after having been adjudicated an habitual 

offender in violation of Code § 46.2-357. On appeal, he argues 

that the trial court erred in finding the evidence sufficient to 

support a felony conviction under Code § 46.2-357(B)(2). Finding 

no error, we affirm the trial court. 

 On December 10, 1993 at 2:40 a.m., Officer M. C. Wrisborne 

(Wrisborne) of the Roanoke City Police Department saw appellant 

driving a jeep that was weaving and five times crossed the double 

yellow line into the on-coming lane. Wrisborne stopped the 

vehicle. He detected the odor of alcohol on appellant, saw that 

his eyes were bloodshot, and noticed that he was unsteady on his 

feet. Appellant failed several field sobriety tests. Appellant 

pled guilty to driving under the influence as a result of this 

incident. 
 2 

 At the trial on the habitual offender charge, the 

Commonwealth introduced into evidence appellant's guilty plea and 

conviction on the DWI charge, and his December 8, 1992 

adjudication as an habitual offender.1

 In a motion to strike, appellant argued that the evidence 

was insufficient to establish that his driving "of itself . . . 

endanger[ed] the life, limb, or property of another" and was thus 

a felony under Code § 46.2-357(B)(2). The trial court denied the 

motion but refused to adopt a per se rule that drunk driving 

"endanger[s] the life, limb, or property of another." The trial 

court held: 

 I don't have any problem with [convicting] 

anybody who gets behind the wheel of an 

automobile as drunk as he was and [is] unable 

to keep his automobile in the line of 

traffic, not once or twice but four . . . or 

five . . . times. 

 When the sufficiency of the evidence is challenged on 

appeal, we view the evidence "in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 

 

 1The Commonwealth elected to treat this habitual offender 

charge as a first offense. Code § 46.2-357(B)(3) provides for 

automatic felony punishment if the violation is a second offense: 

 If the offense of driving while an order 

of adjudication 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 section, 

irrespective of whether the offense, of 

itself, endangers the life, limb, or property 

of another. 
 3 

443, 358 S.E.2d 415, 418 (1987). 

 Code § 46.2-357(B)(2) provides as follows: 

 If such driving, of itself, does 

endanger the life, limb, or property of 

another, such person shall be guilty of a 

felony punishable by confinement in the state 

correctional facility for not less than one 

year nor more than five years or, in the 

discretion of the jury or the court trying 

the case without a jury, by confinement in 

jail for twelve months . . . . 

(Emphasis added). This Court recently held in Bishop v. 

Commonwealth, 20 Va. App. 206, 455 S.E.2d 765 (1995), as follows: 

 The distinction between negligent 

driving and reckless driving is the critical 

element in determining punishment under Code 

§ 46.2-357. In defining the conduct that 

gives rise to felony punishment under Code 

 § 46.2-357(B)(2), the legislature used the 

phrase, "driving [that] . . . endanger[s] the 

life, limb, or property of another," language 

virtually identical to that found in the 

statute defining reckless driving. 

Id. at 210-11, 455 S.E.2d at 767. The Court rejected a per se

rule that drunk driving deserves felony treatment under Code 

§ 46.2-357 and held that, "while evidence of intoxication is a 

factor that might bear upon proof of dangerous or reckless 

driving in a given case, it does not, of itself, prove reckless 

driving." Id. at 210, 455 S.E.2d at 767. "'The essence of the 

offense of reckless driving lies not in the act of operating a 

vehicle, but in the manner and circumstances of its operation.'" 

Kennedy v. Commonwealth, 1 Va. App. 469, 472-73, 339 S.E.2d 905, 

907 (1986) (quoting Powers v. Commonwealth, 211 Va. 386, 388, 177 

S.E.2d 628, 630 (1970)). 
 4 

 In Bishop, this Court determined that Bishop's conduct did 

not rise to the level required for felony punishment because 

"[n]o evidence proved that [he] drove the vehicle in a dangerous 

manner." 20 Va. App. at 211, 455 S.E.2d at 767. Bishop was 

arrested when he stopped at a toll booth and asked whether he 

could turn around because he was lost. Id. at 208, 455 S.E.2d at 

766. In Travis v. Commonwealth, 20 Va. App. 410, 457 S.E.2d 420 

(1995), this Court held in a case similar to the instant case 

that, "[b]ecause appellant was weaving within in his own lane and 

into the other lane, the circumstances support a finding that his 

driving 'of itself . . . endanger[ed] the life, limb, or property 

of another.'" Id. at 417, 457 S.E.2d at 423 (quoting Code 

§ 46.2-357(B)(2)). 

 The record in this case established that appellant's jeep 

was weaving and crossed the double yellow line into the on-coming 

lane several times, driving behavior that clearly rises to the 

level of reckless and that could "endanger the life, limb, or 

property of another." Additionally, appellant was intoxicated, a 

fact admitted by his guilty plea to driving under the influence. 

 The trial judge correctly found that: (1) appellant's 

intoxication alone was not enough to show that his driving "of 

itself . . . endanger[ed] the life, limb, or property of 

another," and (2) his intoxication when combined with the 

evidence of weaving was sufficient to prove a violation of Code 

§ 46.2-357(B)(2). 
 5 

 Appellant argues that, for the felony provision of Code 

§ 46.2-357(B)(2) to apply, the driving behavior must actually 

harm another person or his property or must require another 

person to take evasive action to avoid injury or damage to his 

property. We disagree. The purpose of the felony habitual 

offender statute is to deter reckless driving behavior by those 

already deemed to be a danger on the road by increasing the 

punishment for those whose driving behavior endangers the public. 

 The mitigated, misdemeanor punishment was a legislative attempt 

to distinguish between those situations in which a barred driver 

continues to put the public at risk by driving in a reckless 

manner from those where the driving behavior is less culpable. 

See, e.g., Bishop, 20 Va. App. at 211, 455 S.E.2d at 767. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.