COURT OF APPEALS OF VIRGINIA

Present: Judges Decker, AtLee and Malveaux Argued at Richmond, Virginia

KATHY LORRAINE STAIGER MEMORANDUM OPINION * BY v. Record No. 0652-15-2 J UDGE RICHARD Y. ATLEE, JR. JANUARY 10, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn, Judge Corinne J. Magee (The Magee Law Firm, PLLC, on brief), for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

The Circuit Court of Mecklenburg County c onvicted Kathy Lorraine Staiger of felony driving under the influence, thir d offense within five years. On appeal, Staiger argues “the Commonwealth had not proven two prior convictions of drivi ng under the influence.” We disagree with Staiger, an d affirm her conviction.

I. B ACKGROUND We view the evidence in the light most fa vorable to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). On April 16, 2014, Staiger left home

in her Mazda Miata to attend an Alcoholics Anonymous meeting. On her way, she drove her car off the public highway and into a roadside em bankment. Although she had a cell phone with her, Staiger did not call anyone to report the accident. Instead, le aving her car with its “back end . . . still sitting in the roadway,” she returned to her house on foot. There, she got in another of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - her cars, a BMW, and set out again. This journe y (on the same public highway) ended no better: she veered “off the roadway to the right, striking a mailbox and going into . . . a slight embankment.” The two accidents happened within thirty minutes of each other, and the crash sites were only two miles apart. At the scene of the second accident, to whic h the Virginia State Police responded first, Staiger admitted crashing both cars. Her eyes we re dilated, her speech was slurred, and she was unsteady on her feet, “staggering back and forth.” Sh e failed four of the five field sobriety tests she performed. The troopers saw no signs that Staiger had been drinking alcohol; however, she said she had taken an antidepres sant earlier. She was transpor ted to a nearby hospital where a nurse drew her blood pursuant to Virginia’s im plied consent law. Because Staiger had a 2013 conviction for driving under th e influence (“DUI”), the Commonw ealth charged her with two additional DUIs for the two separate accidents that occurred on April 16, 2014. One charge was a DUI, second offense within five years (a misd emeanor); the other a DUI, third offense within five years (a felony). The indi ctment by which Staiger was char ged with the felony DUI alleged

that she did: unlawfully and feloniously drive or operate a motor vehicle while under the influence of alcohol or other self-administered intoxicant or drug, such offense being a third offense and having been committed within five years of an offense under Virginia Code § 18.2-266 or a substantially similar law or ordinance, in violation of §§ 18.2-266; 18.2-270 of the C ode of Virginia (1950) as amended. At trial, the Commonwealth introduced a certified copy of Staiger’s 2013 DUI conviction. Additionally, the Commonwealth introdu ced a certificate of analysis prepared by the Virginia Department of Forensic Science. That certificate memorialized the analysis of Staiger’s blood, drawn by the nurse on the night of the tw o accidents, and showed that the analyzed- 3 - sample contained “Lorazepam 0.065 mg/L.” 1 According to the te stifying toxicologist, Lorazepam is a benzodiazepine similar to “X anax, Valium, [and] Klonopin.” As a “central nervous system depressant,” Lorazepam “will slow down or [a]ffect anything that you need your central nervous system to do” and can cause “d izziness, drowsiness, disorientation, and slurred speech.” Lorazepam can also impair bala nce, reaction times, fine motor skills, and decision-making. Staiger argued to the circuit court that th e Commonwealth had “not proven two prior DUI convictions.” The circuit court disagree d, and found her guilty of both DUI charges. 2 The circuit court ultimately sentenced Staiger to five years in the penitentiary on the felony DUI, suspending all of that time except the six-month mandatory minimum. 3 This appeal followed.

II. A NALYSIS Staiger’s assignment of error requires us to interpret the Code, a task we undertake de

novo . Commonwealth v. Herring, 288 Va. 59, 66, 758 S.E.2d 225, 229 (2014). When a statute uses unambiguous language, we accord that lang uage its plain meaning, and “we must give effect to the legislature’s intention as e xpressed by the language used unless a literal interpretation of the language would result in a manifest absurdity.” Bd. of Supervisors of James City Cty. v. Windmill Meadows, LLC, 287 Va. 170, 179-80, 752 S.E.2d 837, 842 (2014) (quoting Commonwealth v. Leone, 286 Va. 147, 150, 747 S.E.2d 809, 811 (2013)). “[T]he

1 A forensic toxicologist employed by the Virginia Department of Forensic Science testified that this meant the sample contai ned “.065 milligrams [of Lorazepam] per liter of blood.”

2 The circuit court also convicted Staiger of driving on a revoked license. She did not appeal that conviction.

3 On the DUI second offense, the circuit court sentenced Staiger to one year in jail with all of that time suspended except the twenty-day mandatory minimum. Her petition for appeal contained several assignments of error related to this conviction, but these assignments of error were denied.- 4 - plain, obvious, and rational meaning of a statute is always to be pr eferred to any curious, narrow,

or strained construction.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). This appeal turns on the meaning of C ode § 18.2-270, which prescribes the punishment for violations of Virginia’s DUI statute, Code § 18.2-266. 4 Code § 18.2-270(C)(1) states: Any person convicted of three offenses of [Code] § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of [Code] § 18.2-266 committed within a 10-y ear period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000. We find this language unambiguous, and thus give it its plain meaning. Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003) . In giving a statute its plain meaning, we “may not assign a construction that amounts to holding that the General Assembly did not mean what it actually has stat ed.” Gunn v. Common wealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006) (quoting Williams, 265 Va. at 271, 576 S.E.2d at 470).

4 Code § 18.2-266 states, in relevant part, that [i]t shall be unlawful for any pers on to drive or operate any motor vehicle . . . (iii) while such pe rson is under the influence of any narcotic drug or any other self-a dministered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle . . . safely . . . .- 5 - Referencing subsection E of Code § 18.2-270, 5 Staiger argues that “there must be a

conviction on the [second] offense before the individua l is charged with a third offense.” The Supreme Court addressed a similar situation in Williams, the only difference being that the appellant in that case argued that “under th e language of Code § 18.2-270, elevation of an offense to a felony and the resulting enhancemen t of punishment can occur only if a defendant has been convicted of two previous offenses under Code § 18.2-266 at the time the third offense is committed.” Williams, 265 Va. at 270, 576 S.E.2d at 469-70. The Court went on to observe that the enhanced punishment is activated, in the language of the statute, by a defendant’s conviction of a third or subsequent “offense committed within ten years.” The General Assembly’s use of the words “offense” and “committed” signals its clear in tent to authorize enhanced punishment for a third DUI offense occurring within the prescribed time period even though the sec ond DUI offense has not resulted in a conviction before the third offense is committed. Id. at 271, 576 S.E.2d at 470. In explaining its reasoning, the Court quoted Code § 18.2-270 as it existed at the time. The General Assembly ha s since altered the wording of Code § 18.2-270 slightly, but the difference is not meaningful to our analysis . See Code § 18.2-270 (making the enhancement applicable to “[a]ny person convi cted of three offenses of [Code] § 18.2-266

5 Code § 18.2-270(E) states: For the purpose of determining the number of offenses committed by, and the punishment appropriate for, a person under this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of [Code] § 18.2-266: (i) the provisions of [Code] § 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of [Code] §§ 18.2-51.4, 18.2-266, former [Code] § 18.1-54 (formerly [Code] § 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of [Code] § 18.2-51.4, or [Code] § 18.2-266, or (iii) the provisions of subsect ion A of [Code] § 46.2-341.24 or the substantially similar laws of any ot her state or of the United States.- 6 - committed within a 10-year period”). In Thomas v. Commonwealth, 25 Va. App. 256, 260, 487 S.E.2d 289, 291 (1997), aff’d, 256 Va. 38, 501 S.E.2d 391 (1998), this Court analyzed another recidivist statute, Code § 46.2-357, the habitual offender statute, and observed that “[a] person of ordinary intelligence would understa nd that any second or subsequent driving in violation of [the statute] would make him eligible for the enhan ced punishment provision, whether or not he had

been convicted of the earlier offense before the occurrence of the second driving offense.” See also Able v. Commonwealth, 16 Va. App. 542, 549, 431 S.E.2d 337, 341 (1993) (interpreting the recidivist portion of Code § 18.2-248, which cr iminalizes distribution of Schedule I or II controlled substances, noting that “[t]he statute does not require that, in order for the enhanced penalty provision to obtain, the defendant must have been convicted of a first offense before committing the second offense”). A “contrary inte rpretation . . . would permit an offender to violate the statute repeatedly w ithout being subjected to a felony charge simply because he could not be tried and convicted in the brief time peri ods separating the several offenses.” Williams, 265 Va. at 271, 576 S.E.2d at 470. Staiger attempts to distinguish her facts from those in Williams. She points out that the question in Williams was whether the Commonwealth could charge a third offense even though Williams had not been convicted of a second offense at the

time the third offense was committed . In Staiger’s case, she frames the question as whether the Commonwealth could charge her with a third offe nse even though she had not been convicted of

a second offense at the time the third offense was charged . We find that distinction inconsequential. Staiger appears to quibble w ith the idea that one can be convicted of both a DUI second offense and a DUI third offense in one proceeding. To the extent she attempts to make this point, her argument is barred both by her failure to object contem poraneously to that procedure at trial, as required by Rule 5A:18, and by her fail ure to assign error to that procedure in her- 7 - petition for appeal, as required by Rule 5A:12( c)(1). Furthermore, nothing prevents the

simultaneous trial of a second DUI and a thir d DUI. In Ansell v. Commonwealth, 219 Va. 759, 250 S.E.2d 760 (1979), Ansell pled gu ilty to three counts of using a firearm in the commission of felony, in violation of Code § 18.2-53.1. Ansell had committed all three crimes “within a period of 45 minutes,” and pled guilty to all three at one hearing. Id. at 759, 250 S.E.2d at 761. The Supreme Court affirmed the trial c ourt’s decision to punish one of th e offenses as a first offense, and the other two as second or subsequent offe nses, under the recidivism provision of Code § 18.2-53.1. See also Mason v. Commonwea lth, 16 Va. App. 260, 262-63, 430 S.E.2d 543, 544 (1993) (reviewing the recidivism portions of Code § 18.2-248(C), noting “an enhanced punishment may be applied where there are multiple convictions for separate offenses in a simultaneous prosecution”). Because precedent fr om this Court and the Supreme Court permits the manner by which the circuit court convic ted Staiger, we affirm her conviction.

III. C ONCLUSION For the reasons stated above, we find the circ uit court did not err in finding Staiger guilty of felony DUI, third offe nse within five years.

Affirmed.