COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Fitzpatrick and Overton 

Argued at Richmond, Virginia 

JACINTO MEJIA 

 OPINION BY 

v. Record No. 1366-95-4 JUDGE JERE M. H. WILLIS, JR. 

 SEPTEMBER 10, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Marcus D. Williams, Judge 

 David Bernhard (Bernhard & Gardner, on 

brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from his conviction of operating a motor vehicle 

after illegally consuming alcohol, in violation of Code 

§ 18.2-266.1(A), Jacinto Mejia contends that the trial court 

erred in denying his motion to strike the evidence, which was 

grounded on the Commonwealth's alleged failure to prove that his 

consumption of alcohol was illegal. We find no error and affirm 

the judgment of the trial court. 

 On November 27, 1994, a Fairfax police officer stopped an 

automobile being operated by Mejia, after the officer observed 

that the vehicle was speeding 50 mph in a 35 mph zone and was 

"frequently weaving across the double yellow line." Approaching 

the vehicle, the officer "detected a moderate odor of alcohol." 

At the officer's direction, Mejia satisfactorily performed three 

field sobriety tests. A properly conducted breath alcohol 
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analysis established that his breath alcohol content was 0.03 

grams per 210 liters of breath. Mejia was less than twenty-one 

years of age. 

 At the conclusion of the Commonwealth's evidence, Mejia 

moved to strike the evidence on the ground that the Commonwealth 

had failed to prove that his consumption of alcohol was illegal. 

 The trial court denied the motion. Mejia rested without 

producing evidence and renewed the motion, which the trial court 

again denied. 

 Mejia contends that because Code § 18.2-266.1(A) proscribes 

the operation of a motor vehicle by a person under the age of 

twenty-one "after illegally consuming alcohol," the legislature 

intended to make the illegality of the subject operator's alcohol 

consumption an express element of the offense. He argues that 

because the Commonwealth failed to prove that his consumption of 

alcohol had been illegal, the Commonwealth thereby failed to 

prove an element of the offense charged, rendering the proof 

insufficient to support his conviction. 

 The Commonwealth contends that the word "illegally" is mere 

surplusage which, if read to impose a required element of proof, 

would frustrate the legislature's plain intent and would produce 

inconsistent and often absurd results. The Commonwealth argues 

that the word "illegally" should be construed to describe the 

general illegality of the conduct proscribed by the statute. 

 We find neither position persuasive. 

 Well established "principles of statutory 
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construction require us to ascertain and give 

effect to the legislative intent." Branch v. 

Commonwealth, 14 Va. App. 836, 839, 419 

S.E.2d 422, 424 (1992). "Where the language 

is plain and unambiguous, we are bound by the 

plain statement . . . ." Commonwealth v. 

Meadows, 17 Va. App. 624, 626, 440 S.E.2d 

154, 155 (1994). "[W]ords and phrases used 

in a statute should be given their ordinary 

and usually accepted meaning unless a 

different intention is fairly manifest." 

Woolfolk v. Commonwealth, 18 Va. App. 840, 

847, 447 S.E.2d 530, 534 (1994). "Criminal 

statutes are to be 'strictly construed 

against the Commonwealth and in favor of [a] 

citizen's liberty.'. . . A penal statute must 

be construed so as to proscribe only conduct 

which the legislature clearly intended to be 

within the statute's ambit." King v. 

Commonwealth, 6 Va. App. 351, 354-55, 368 

S.E.2d 704, 706 (1988). 

Brooks v. Commonwealth, 19 Va. App. 563, 566, 454 S.E.2d 3, 4-5 

(1995). If the several provisions of a statute suggest a 

potential for conflict or inconsistency, we construe those 

provisions so as to reconcile them and to give full effect to the 

expressed legislative intent. See Cooper v. Occoquan Land Dev. 

Corp., 8 Va. App. 1, 6, 377 S.E.2d 631, 633 (1989). 

 "Illegally," as used in the first sentence of Code 

§ 18.2-266.1(A), plainly modifies "consuming alcohol." Thus, the 

first sentence of the statute, the general definition of the 

offense, prohibits the operation of a motor vehicle by a person 

under the age of twenty-one who has illegally consumed alcohol. 

The illegality of the alcohol consumption is expressly made an 

element of the general definition of the offense. The wisdom of 

that inclusion is not for us to decide. Our task is to give 
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effect to the legislature's intent. 

 However, the second sentence of the statute must be read in 

conjunction with, and consistently with, the first. That 

sentence provides that "any such person" with a blood alcohol 

concentration of 0.02 grams or more per 210 liters of breath 

"shall be in violation of this section." We construe "any such 

person" to mean "any person under the age of twenty-one." Such a 

person who operates a motor vehicle while having the specified 

blood alcohol concentration is deemed by the provision of the 

second sentence to be in violation of the statute. 

 The Commonwealth argues that consumption of alcohol is a 

type of possession and that because possession of alcohol by a 

person less than twenty-one years of age is generally illegal, 

consumption of alcohol by such a person is correspondingly 

generally illegal. Mejia correctly observes that despite the 

general prohibition against possession and consumption, there 

exist circumstances under which possession and consumption of 

alcohol by a person less than twenty-one years of age may be 

legal. We perceive no need to catalog those circumstances in 

this opinion. However, we note that medicinal and sacramental 

possession and consumption of alcohol are examples. 

 We conclude that the offense defined by the first sentence 

of Code § 18.2-266.1(A) is proved if the Commonwealth proves that 

a person under the age of twenty-one years operates a motor 

vehicle after consuming alcohol, in any amount, and that the 
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consumption was illegal. We construe the second sentence to 

provide the establishment of a prima facie case upon proof that a 

person under twenty-one years of age operates a motor vehicle 

while having the prescribed level of blood alcohol concentration, 

casting upon the accused against whom such a prima facie case is 

established the burden of going forward with evidence raising a 

reasonable doubt as to the illegality of his alcohol consumption. 

 At the time of his arrest, Mejia was under twenty-one years 

of age and he operated a motor vehicle while having a blood 

alcohol concentration of 0.02 grams or more per 210 liters of 

breath. He produced no evidence suggesting that his consumption 

of alcohol had not been illegal. Thus, the prima facie case 

raised by the Commonwealth's proof sufficiently supports Mejia's 

conviction, and the trial court did not err in denying his motion 

to strike the evidence. 

 The judgment of the trial court is affirmed. 

 Affirmed. 
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Benton, J., dissenting. 

 In pertinent part, Code § 18.2-266.1(A) provides as follows: 

 It shall be unlawful for any person under 

the age of twenty-one to operate any motor 

vehicle after illegally consuming alcohol. 

Any such person with a blood alcohol 

concentration of 0.02 percent or more by 

weight by volume or 0.02 grams or more per 

210 liters of breath but less than 0.08 by 

weight by volume or less than 0.08 grams per 

210 liters of breath as indicated by a 

chemical test administered as provided in 

this article shall be in violation of this 

section. 

The Commonwealth proved that Jacinto Mejia, who was under the age 

of twenty-one, operated a motor vehicle with a breath alcohol 

content of .03 grams per 210 liters of breath. Because this 

conduct alone does not fulfill all the elements necessary to 

support a conviction under Code § 18.2-266.1(A), I dissent. 

 Mejia contends that the statute required the Commonwealth to 

prove that he "illegally" consumed alcohol. The Commonwealth 

contends that "the word 'illegally' is surplusage." Although the 

majority disagrees with the Commonwealth, the majority upholds 

the conviction by constructing an analysis not argued by either 

party and finding that under the second sentence of the statute 

Mejia had the burden of proving "a reasonable doubt as to the 

illegality of his alcohol consumption." I believe the majority 

incorrectly reads and applies the statute. 

 In Virginia, statutory interpretation is governed by the 

following well established principles: 
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 If [a statute's] language is clear and 

unambiguous, there is no need for 

construction by the court; the plain meaning 

and intent of the enactment will be given it. 

 When an enactment is clear and unequivocal, 

general rules for construction of statutes of 

doubtful meaning do not apply. Therefore, 

when the language of an enactment is free 

from ambiguity, resort to legislative history 

and extrinsic facts is not permitted because 

we take the words as written to determine 

their meaning. And, when an enactment is 

unambiguous, extrinsic legislative history 

may not be used to create an ambiguity, and 

then remove it, where none otherwise exists. 

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) 

(citations omitted). An equally well established principle 

mandates that when "the statute in question is penal in nature, 

it must be strictly construed against the state and limited in 

application to cases falling clearly within the language of the 

statute." Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 

337, 338 (1983). 

 To reach the result the Commonwealth urges, the word 

"illegally" must be read out of the statute. Words in a statute 

"cannot be ignored" merely to reach a desired result. Board of 

Supervisors v. Wood, 213 Va. 545, 548, 193 S.E.2d 671, 674 

(1973). The use of the word "illegally" in the statute adds 

content and imparts meaning to the statute and its use does not 

lead to an "absurd result." Norfolk Airport Authority v. 

Nordwall, 246 Va. 391, 395, 436 S.E.2d 436, 438 (1993). 

 I agree with the majority that "illegally" modifies 

"consuming alcohol." This reading of the statute does not lead 
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to an absurd result because a person under twenty-one years of 

age may legally consume alcohol in various circumstances. For 

example, persons under the age of twenty-one may lawfully consume 

alcohol through medicine intake or during religious sacrament, 

such as the Eucharist or the Seder. See 42 U.S.C. § 2000 bb, et

seq. (The "Religious Freedom Restoration Act"). Also, many 

states, including states that border Virginia, allow minors to 

lawfully consume alcohol in their homes under various 

circumstances. See, e.g., State v. Mihm, 634 N.E.2d 703 (Ohio 

Ct. App. 1994); Md. Ann. Code art. 27, § 401A; W. Va. Code 

§ 60-3-22a; Colo. Rev. Stat. Ann. § 18-13-122; Or. Rev. Stat. 

§§ 471.410 and 471.430; Wash. Rev. Code Ann. § 66.44.270. 

Indeed, no Virginia law bars a person under the age of twenty-one 

from consuming an alcoholic beverage at home under the 

supervision of his or her parent. Cf. Code §§ 4.1-200 and 

4.1-305. 

 Because the legislature created a specific statutory offense 

for a person under the age of twenty-one who has driven after 

illegally consuming alcohol, we cannot say that such a statute 

reaches an absurd result. We cannot rewrite the statute by 

judicial fiat. Without proof that a person under twenty-one 

years of age illegally consumed alcohol, that person cannot be 

convicted under Code § 18.2-266.1(A). Virginia has other 

statutes that prohibit driving while intoxicated. See Code 

§ 18.2-266. 
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 The Commonwealth argues that the legislature did not intend 

to impose liability only for illegal consumption. Nothing in the 

statute supports that assertion. The plain language of Code 

§ 18.2-266.1(A) imposes liability only for "illegally consuming 

alcohol." Even though the result of a statute may not be what 

the Commonwealth believes the legislature intended, a court 

cannot distort or rewrite the statute. See Smith v. Richmond 

Memorial Hospital, 243 Va. 445, 454, 416 S.E.2d 689, 694, cert.

denied, 506 U.S. 967 (1992). The word, "illegally," itself and 

its placement in the statute are "clear and unambiguous." 

Nordwall, 246 Va. at 395, 436 S.E.2d at 438. Thus, we must 

presume that effect was intended to be given to that word as well 

as each of the words in the statute. Rockingham Cooperative Farm 

Bureau v. City of Harrisonburg, 171 Va. 339, 344, 198 S.E. 908, 

910 (1938); King v. Empire Collieries Co., 148 Va. 585, 590, 139 

S.E. 478, 479 (1927). If there is any doubt concerning the 

meaning of a statute, "we are guided by the fundamental principle 

of statutory construction that penal statutes '"must be strictly 

construed against the state and limited in application to cases 

falling clearly within the language of the statute."'" Simmons 

v. Commonwealth, 16 Va. App. 621, 624, 431 S.E.2d 335, 336 

(1993)(citations omitted). 

 In order to uphold what it deems to be the intent of the 

legislature, the majority concludes that the term "any such 

person" at the beginning of the second sentence modifies only the 
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words "any person under the age of twenty-one" in the first 

sentence. In adopting this interpretation, the majority provides 

no explanation as to why "any such person" refers only to a 

portion of the first sentence. I believe this reading of the 

statute to be flawed. 

 "Any such person" can only logically refer to a person under 

age twenty-one who operates a vehicle after illegally consuming 

alcohol, the subject person specified in the first sentence. 

Following immediately upon the first sentence, the phrase, "any 

such person," can only logically refer to a person fulfilling the 

entire proscription upon persons described in the first sentence. 

 Contrary to the implication in the majority opinion, the second 

sentence of the statute is read consistent with the first 

sentence when "any such person" is read to refer to "any person 

under the age of twenty-one [who] operate[s] a motor vehicle 

after illegally consuming alcohol." 

 The majority interpretation creates an ambiguity where none 

exists. Only by truncating the descriptive reference of the 

first sentence of the statute does the majority achieve the 

ambiguity that is necessary to its analysis. That unnecessary 

ambiguity then provides the foundation for the majority's 

conclusion that the legislature constructed a statute that 

requires interpretation by reference to legislative intent. 

 Even if the statute contained such an ambiguity, the 

majority's ultimate conclusion does not follow. Penal statutes 
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"should be construed strictly against the Commonwealth and in 

favor of the accused." Frere v. Commonwealth, 19 Va. App. 460, 

464, 452 S.E.2d 682, 685 (1995). Thus, if the statute contains 

two equally likely interpretations, the statute must always be 

interpreted to favor a citizen's liberty. Brooks v. 

Commonwealth, 19 Va. App. 563, 566, 454 S.E.2d 3, 5 (1995). The 

majority's interpretation of Code § 18.2-266.1(A) contains fewer 

elements and imposes a lesser burden on the Commonwealth than the 

equally reasonable alternative interpretation of the statute I 

have described. Thus, I believe that the majority's holding also 

violates this basic rule of statutory construction. 

 Furthermore, only a strained interpretation of the statute 

shifts to the accused the burden of proving, as the majority 

terms it, "reasonable doubt as to the illegality of his alcohol 

consumption." That interpretation removes from the Commonwealth 

its constitutionally imposed burden of proving beyond a 

reasonable doubt every element of the offense. In re Winship, 

397 U.S. 358, 364 (1970); Clemmer v. Commonwealth, 208 Va. 661, 

666, 159 S.E.2d 664, 667 (1968). It also unlawfully permits a 

conviction to be had based upon a presumption rather than proof 

and upon unlawfully shifting the burden of proof to an accused. 

See Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979). We cannot 

presume that an element of an offense has been proven beyond a 

reasonable doubt when no evidence regarding the "illegal" 

consumption has been introduced. 
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 Because the evidence contains no evidence regarding Mejia's 

consumption of alcohol, I would hold that the Commonwealth failed 

to prove beyond a reasonable doubt that Mejia illegally consumed 

alcohol. Accordingly, I would reverse the conviction.