COURT OF APPEALS OF VIRGINIA 

Present: Judges Barrow,* Coleman and Koontz 

Argued at Salem, Virginia 

JIMMY ELDRIDGE DOSS 

v. Record No. 2003-93-3 MEMORANDUM OPINION** BY 

 JUDGE BERNARD G. BARROW 

COMMONWEALTH OF VIRGINIA MAY 9, 1995 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

David V. Williams, Judge 

 Wayne T. Baucino (Office of the Public Defender, on 

 briefs), for appellant. 

 G. Russell Stone, Jr., Assistant Attorney General 

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

 for appellee. 

 In this criminal appeal, we hold that the record is 

insufficient to conclude that the defendant was subjected to 

double jeopardy when he was convicted of involuntary 

manslaughter, Code § 18.2-36.1, following conviction for driving 

under the influence of alcohol, Code § 18.2-266. Further, we 

hold that the provisions of Code § 19.2-294 and the defendant's 

conviction for driving under the influence did not bar his 

subsequent conviction in a separate prosecution for involuntary 

manslaughter. 

 Driving while intoxicated, the defendant lost control of his 

 

 *Judge Bernard G. Barrow participated in the hearing and 

decision of this case and prepared the opinion prior to his 

death, and the other panel members joined in the opinion. 

 **Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

automobile, ran off of the road, and overturned. The accident 

caused the death of his daughter, a passenger in the car. Arrest 

warrants, issued that day, charged him with homicide and driving 

under the influence. On November 18, 1992, in general district 

court, the defendant pleaded guilty and was convicted of driving 

under the influence in violation of Code § 18.2-266. On 

January 18, 1993, he was indicted for involuntary manslaughter 

under Code § 18.2-36.1. On July 9, 1993, he entered a 

conditional guilty plea and was convicted of involuntary 

manslaughter in circuit court. 

 A person violates Code § 18.2-36.1 if, "as a result of 

driving under the influence in violation of subdivision (ii), 

(iii), or (iv) of § 18.2-266," he or she "unintentionally causes 

the death of another person." The defendant argues that in order 

for the Commonwealth to establish a violation of Code 

§ 18.2-36.1, it had to prove a violation of Code § 18.2-266, an 

offense for which he had already been convicted by the general 

district court. Thus, he contends, trying him for violation of 

Code § 18.2-36.1 subjected him to double jeopardy. See

Blockburger v. United States, 284 U.S. 299, 304 (1932). 

 We reject this contention because we cannot determine on the 

record before us that the defendant had been convicted previously 

of violating subdivision (ii), (iii), or (iv) of Code § 18.2-266, 

rather than subdivision (i). The record reflects only that he 

was convicted in the general district court of "unlawfully 
- 3 - 

operat[ing] a motor vehicle while intoxicated," a "violation of 

Section 18.2-266, Code of Virginia." The record does not prove 

that he was convicted of violating subdivision (ii), (iii), or 

(iv) of Code § 18.2-266, as opposed to subdivision (i) of that 

section. 

 When asserting a defense of double jeopardy, a defendant 

must substantiate his allegation and "establish the identity of 

the offenses" material to his plea. Low v. Commonwealth, 11 Va. 

App. 48, 50, 396 S.E.2d 383, 384 (1990). Usually a defendant 

accomplishes this "by production of the record or transcript of 

the initial trial." Id. The record in this case does not 

establish that the offense for which the defendant was convicted 

in the general district court was the same offense which had to 

be proved to convict him later of having violated Code 

§ 18.2-36.1. Furthermore, the record contains no stipulation or 

concession by the prosecution upon which we can rely. See Cooper 

v. Commonwealth, 13 Va. App. 642, 644, 414 S.E.2d 435, 436 

(1992). Therefore, the record on appeal fails to support the 

defendant's claim that his conviction for driving under the 

influence barred his conviction for involuntary manslaughter on 

double jeopardy principles. Id. 

 However, the record is sufficient for us to address the 

issue raised under Code § 19.2-294. "If the same act be a 

violation of two or more statutes, . . . conviction under one of 

such statutes . . . shall be a bar to a prosecution or proceeding 
- 4 - 

under the other." Code § 19.2-294. 

 The applicability of Code § 19.2-294 depends on "the 

identity of the act." Jones v. Commonwealth, 218 Va. 757, 760, 

240 S.E.2d 658, 661, cert. denied, 439 U.S. 892 (1978). In this 

case, the two convictions arose out of the "same act." See Lash 

v. Commonwealth, 14 Va. App. 926, 930-31, 421 S.E.2d 851, 854 

(1992) (en banc). At trial, the prosecution agreed that these 

two charges arose from "an accident on October 30, 1992 which 

resulted in the death of the defendant's four year old daughter." 

 Unlike Lash, this defendant's conduct -- driving while 

intoxicated -- was not separable into different acts giving rise 

to multiple offenses. Here, one act gave rise to both charges. 

 However, Code § 19.2-294 does not bar multiple convictions 

arising out of the same act if they are prosecuted 

simultaneously. Slater v. Commonwealth, 15 Va. App. 593, 595, 

425 S.E.2d 816, 817 (1993). When charges are brought at the same 

time, "the amenability of one to early conclusion while the other 

requires further proceedings, does not alter the fact that the 

proceedings are concurrent, not successive, prosecutions." Id.

 In this case, the warrants were issued at the same time, 

although the charges were heard at different times in different 

courts. Because the charges were initiated simultaneously, the 

proceedings are concurrent, not successive, and thus, both 

convictions are permitted under Code § 19.2-294. Id. But see

Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d 277 (1990) 
- 5 - 

(holding Code § 19.2-294 barred conviction for attempted capital 

murder after conviction for obstructing justice based on "same 

act," although both charges brought simultaneously).1

 Accordingly, we affirm the conviction for involuntary 

manslaughter under Code § 18.2-266. 

Affirmed. 

 

 1We find we are bound by Slater, which squarely addressed 

the question of concurrent prosecutions. However, we note an 

apparent conflict with Wade, which did not directly address the 

question. Further, we note that the rationale of Slater is 

borrowed from Freeman v. Commonwealth, 14 Va. App. 126, 129, 414 

S.E.2d 871, 873 (1992), a double jeopardy case which relied on 

the recently overruled Grady v. Corbin, 495 U.S. 508 (1990), 

overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).