COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Senior Judge Overton 

Argued at Richmond, Virginia 

OEUP THO 

 MEMORANDUM OPINION* BY 

v. Record No. 2992-98-2 JUDGE JERE M. H. WILLIS, JR. 

 MAY 9, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

T. J. Hauler, Judge 

 Robert P. Geary (Joseph McGrath, on brief), 

for appellant. 

 Christopher G. Hill, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from his convictions of driving under the 

influence, in violation of Code § 18.2-266, and involuntary 

manslaughter, in violation of Code § 18.2-36.1(B), Oeup Tho 

contends that the trial court violated his Fifth Amendment right 

against double jeopardy.1

 On January 1, 1998, Tho's vehicle struck another vehicle, 

killing the other vehicle's passenger. Arrest warrants were 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

1

 The petition was granted solely on the constitutional 

issue. Tho's petition for appeal that assigned error to the 

trial court's alleged violation of Code § 19.2-294 was denied. 

See Phillips v. Commonwealth, 27 Va. App. 674, 677-78, 500 

S.E.2d 848, 850 (1998), aff'd, 257 Va. 548, 514 S.E.2d 340 

(1999). 
issued charging him with driving under the influence of alcohol 

and involuntary manslaughter. The DUI warrant was executed at 

11:08 p.m. on January 1, 1998, and the involuntary manslaughter 

warrant was executed at 2:51 a.m. on January 2, 1998. 

 In a district court hearing on June 2, 1998, Tho was 

convicted of driving under the influence and the involuntary 

manslaughter charge was certified to the circuit court. On July 

20, 1998, the grand jury indicted Tho for involuntary 

manslaughter. Tho moved for dismissal of the charge, asserting 

former jeopardy. The trial court denied the motion, holding 

that the prosecutions for DUI and involuntary manslaughter were 

not successive and that the offenses had no common identity but 

were separate and distinct. Tho then pled guilty, reserving the 

right to appeal the trial court's ruling on the motion. 

 Code § 18.2-266 provides, in pertinent part: 

 It shall be unlawful for any person to 

drive or operate any motor vehicle . . . (i) 

while such person has a blood alcohol 

concentration of 0.08 percent or more by 

weight by volume or 0.08 grams or more per 

210 liters of breath as indicated by a 

chemical test . . . , (ii) while such person 

is under the influence of alcohol, (iii) 

while such person is under the influence of 

any narcotic drug . . ., or (iv) while such 

person is under the combined influence of 

alcohol and any drug . . . . 

 Code § 18.2-36.1(A) provides: 

 Any person who, as a result of driving 

under the influence in violation of 

subdivision (ii), (iii), or (iv) of [Code] 

§ 18.2-266, unintentionally causes the death 

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of another person, shall be guilty of 

involuntary manslaughter. 

 The warrant charging Tho with driving while under the 

influence of alcohol alleged that he did: 

drive or operate a motor vehicle under the 

influence of alcoholic beverages or other 

self-administered intoxicants and/or drugs 

as described in Section 18.2-266(i), (ii), 

(iii) and/or (iv) 1950 CODE OF VIRGINIA AS 

AMENDED. 

 The indictment charging Tho with involuntary manslaughter, 

with reference to Code § 18.2-36.1, alleged that he did: 

kill and slay Joannah Marseille by 

negligence so gross, wanton and culpable as 

to show a reckless disregard of human life, 

and as a result of driving under the 

influence, in violation of subdivision (ii), 

(iii), or (iv) of Section 18.2-266, did kill 

and slay Joannah Marseille, against the 

peace and dignity of the Commonwealth of 

Virginia. 

 Tho contends that his convictions involve successive 

prosecutions for the same offense. However, the prosecutions on 

the two charges were not successive, but were concurrent, 

involving a single evidentiary hearing resulting in conviction 

of the misdemeanor and certification of the felony. See

Phillips v. Commonwealth, 257 Va. 548, 553, 514 S.E.2d 340, 343 

(1999). 

 Noting that the Fifth Amendment protects against multiple 

punishments for the same offense, see Cartwright v. 

Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982), Tho contends 

that his offense of driving while intoxicated was a necessary 

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and included element of the involuntary manslaughter charge and 

that his conviction for driving while under the influence 

precluded re-proof of that offense as proof of the greater, 

inclusive offense of involuntary manslaughter. He argues that 

by including driving under the influence, with specific 

reference to its statutory definition, as a required element of 

proof, Code § 18.2-36.1(A) incorporates all the elements of the 

driving under the influence charge and, thus, cannot be proved 

without proving again the driving under the influence charge. 

We do not reach this issue. 

 To gain the preclusive effect of a double jeopardy plea, 

the proponent of that plea must establish the common identity of 

the relevant charges. See Low v. Commonwealth, 11 Va. App. 48, 

50, 396 S.E.2d 383, 384 (1990). The record in this case fails 

to establish that identity. 

 Code § 18.2-36.1(A) refers only to subdivisions (ii), 

(iii), and (iv) of Code § 18.2-266. The warrant charging Tho 

with driving under the influence alleges violation of those 

three subdivisions, but charged him as well with a violation of 

subdivision (i). The evidence supported conviction under 

subdivision (i). Tho's conviction on the DUI charge was stated 

generally and was not limited to a conviction under subdivisions 

(ii), (iii), or (iv). Thus, his conviction for driving under 

the influence did not necessarily fall within the scope of the 

reference contained in Code § 18.2-36.1(A). 

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 The judgment of the trial court is affirmed. 

 Affirmed.

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