COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued by teleconference 

DENNIS VERNON WHITE 

 OPINION BY 

v. Record No. 0656-97-3 JUDGE SAM W. COLEMAN III 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GILES COUNTY 

Colin R. Gibb, Judge 

 Charles R. Beller, III (Beller & Spence, 

P.C., on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Code § 19.2-294.1 provides that "[w]henever any person is 

charged with [driving under the influence of alcohol] . . . and 

reckless driving growing out of the same act or acts and is 

convicted of one of these charges, the court shall dismiss the 

remaining charge." Dennis Vernon White was convicted in the 

circuit court, following a de novo appeal, of driving while under 

the influence of alcohol (DUI) in violation of Code § 18.2-266. 

White had previously pled guilty in the general district court to 

a speeding charge in violation of Code § 46.2-870 and Narrows 

Town Ordinance § 155-3 for driving at a speed of sixty miles per 

hour in a forty miles per hour zone. The speeding charge arose 

from the same course of driving that gave rise to the DUI 

conviction. 

 On appeal, White asserts that the DUI prosecution and 
- 2 - 

conviction were barred by the speeding conviction because, under 

Code § 46.2-862, the speeding conviction constituted a conviction 

for reckless driving. Code § 46.2-862 provides that "a person 

shall be guilty of reckless driving who drives a motor vehicle 

. . . (iii) at a speed of twenty miles per hour or more in excess 

of . . . the applicable maximum speed limit[] [of] forty miles 

per hour or more." Thus, White contends, the provisions of Code 

§ 19.2-294.1 required the circuit court to dismiss the DUI charge 

because he had already pled guilty and been convicted of an 

offense that is by statute deemed reckless driving. We disagree 

and affirm the DUI conviction. 

 "Where the language of a statute is clear and unambiguous, 

we are bound by the plain statement of legislative intent." 

Commonwealth v. Meadows, 17 Va. App. 624, 626, 440 S.E.2d 154, 

155 (1994); see also Long v. Commonwealth, 7 Va. App. 503, 506, 

375 S.E.2d 368, 369 (1988) ("If the language of a statute is 

plain and unambiguous . . . , effect must be given to it 

regardless of what courts think of its wisdom or policy."). We 

must "take the words as written" in Code § 19.2-294.1 and give 

them their plain meaning. Birdsong Peanut Co. v. Cowling, 8 Va. 

App. 274, 277, 381 S.E.2d 24, 26 (1989). 

 Under the plain and unambiguous terms of Code § 19.2-294.1, 

one may not be "charged" and "convicted" of both DUI and 

"reckless driving." A conviction of either DUI or reckless 

driving, whether in simultaneous or successive prosecutions, 
- 3 - 

requires dismissal of the other charge if the other charge arose 

from the same act or acts. Cf. Hall v. Commonwealth, 14 Va. App. 

892, 900, 421 S.E.2d 455, 461 (1992) (en banc) (holding that 

Virginia's double jeopardy statute, Code § 19.2-294, prohibits 

multiple convictions for separate offenses arising out of same 

act, except where convictions obtained in single prosecution). 

However, reckless driving and speeding are separate and distinct 

offenses. 

 Reckless driving is chargeable and punishable under the 

provisions of Article 7 in the Motor Vehicle Code chapter on the 

regulation of traffic. Reckless driving is a Class 1 

misdemeanor, Code § 46.2-868, carrying with it the potential for 

a twelve month jail sentence and a fine of not more than $2,500. 

See Code § 18.2-1(a). Speeding, on the other hand, is 

chargeable and punishable under the provisions of Article 8 of 

the same chapter and is a traffic infraction punishable merely by 

a fine. See Rule 3B:2.1 Nothing in the language of Code 

§ 19.2-294.1 precludes the Commonwealth or a locality from 

convicting a person for both DUI and "speeding." If the 

legislature had intended to foreclose a person from being 

convicted for both DUI and another offense that might also 

constitute reckless driving, as argued by appellant, it could 

 

 1A conviction for reckless driving based on speeding also 

carries with it the additional sanction that the trial judge may 

suspend an operator's license for a period of not more than six 

months. Code § 46.2-393. 
- 4 - 

have expressed that intent in the language of Code § 19.2-294.1. 

 Under the express provisions of Code § 19.2-294.1, only a 

"conviction" for reckless driving bars a prosecution for DUI; a 

conviction for speeding, even if premised on an underlying act 

that may have warranted a conviction for reckless driving, does 

not implicate the bar of the statute. 

 Under appellant's proposed construction of the statute, a 

person who drives between one and nineteen miles per hour over 

the speed limit while intoxicated could be convicted of both 

speeding and DUI, whereas the same intoxicated person driving 

twenty miles per hour over the speed limit could only be 

convicted of either reckless driving or DUI. Appellant would 

have us construe Code § 19.2-294.1 in a way that would enable the 

intoxicated driver who minimally exceeded the posted speed limit 

to be punished more severely than the intoxicated driver who 

drove at a more excessive rate of speed. We decline to construe 

the statute in a way which would lead to such an anomalous 

result. See Shull v. Commonwealth, 16 Va. App. 667, 670, 431 

S.E.2d 924, 925 (1993) ("A statute should not be construed so 

that it leads to absurd results."). We hold that the provisions 

of Code § 19.2-294.1 do not bar the Commonwealth from convicting 

a person for DUI after the person was convicted of speeding, even 

where the charges arose out of the same course of driving and the 

act of speeding could have given rise to a charge and conviction 

for reckless driving under Code § 46.2-862. 
- 5 - 

 In the present case, appellant was charged and convicted for 

"speeding" under a town ordinance incorporating Code § 46.2-870. 

 He was not "convicted" of reckless driving. Cf. Harris v. City 

of Virginia Beach, 19 Va. App. 214, 217, 450 S.E.2d 401, 403 

(1994) (defendant was charged and convicted of driving under the 

influence and "reckless driving"). Although the Commonwealth 

could have prosecuted appellant for reckless driving under 

Article 7 provisions for that offense, it chose instead to 

prosecute him on the offense of speeding under Article 8. See

Spickard v. City of Lynchburg, 174 Va. 502, 505, 6 S.E.2d 610, 

611 (1940) ("The same facts may constitute two or more distinct 

offenses, different in kind as well as in degree."); see also

Kaufmann v. Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 

284 (1989) ("It is well established that the choice of offenses 

for which a criminal defendant will be charged is within the 

discretion of the [prosecutor]."). Accordingly, the Commonwealth 

was not precluded from convicting appellant for both DUI and 

speeding for driving sixty miles per hour in a forty miles per 

hour zone. We affirm the DUI conviction. 

 Affirmed.