COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Cole and Overton 

Argued at Richmond, Virginia 

JAMES EASTER, S/K/A 

 JAMES L. EASTER 

 OPINION BY 

v. Record No. 0428-99-2 JUDGE MARVIN F. COLE 

 MARCH 7, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LUNENBURG COUNTY 

William L. Wellons, Judge 

L.F. Tyler III (Pettus & Tyler, P.C., on 

brief), for appellant. 

H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 James L. Easter, appellant, appeals his conviction of driving 

under the influence of alcohol (DUI), third offense, in violation 

of Code § 18.2-266. Appellant contends: (1) the conviction 

violated his right against double jeopardy because he suffered an 

improper seven day license suspension when the officer failed to 

file the required incident report, and (2) the Commonwealth 

improperly amended the warrant to charge a third offense on de 

novo appeal in circuit court, when, pursuant to a plea agreement, 

he had already pled guilty to, and was convicted of, DUI, second 

offense, in general district court. Finding no error, we affirm 

the conviction. 
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FACTS

 On June 2, 1998, Officer Sterner arrested appellant for 

DUI. Although Sterner failed to file the statutorily required 

sworn incident report with the magistrate, he appeared before 

the magistrate to swear to the grounds for arrest. Appellant's 

operator's license was administratively suspended for seven 

days, pursuant to Code § 46.2-391.2. Appellant did not appeal 

the administrative suspension during the suspension period. 

 In general district court, although the Commonwealth had 

evidence of sufficient convictions to amend the charge to a 

third offense, it agreed to amend the warrant to DUI, second 

offense, in exchange for a guilty plea. Appellant pled guilty 

to, and the court convicted him of, DUI, second offense. 

Appellant later noted his appeal to the circuit court. 

 In circuit court, the court amended the charge to DUI, 

third offense, over appellant's objection that the amendment 

violated his double jeopardy and due process rights. Appellant 

stipulated that he entered into the plea agreement for the 

lesser offense in consideration of the Commonwealth's agreement 

not to amend the charge to the greater offense. 

ANALYSIS 

I. 

Code § 46.2-391.2(B) requires that 

[p]romptly after arrest and service of the 

notice of suspension, the arresting officer 
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shall forward to the magistrate a sworn 

report of the arrest that shall include 

. . . a statement setting forth the 

arresting officer's grounds for belief that 

the person violated . . . § 18.2-266 . . . . 

Appellant contends that because the officer failed to file this 

report, the administrative suspension was improper and penal in 

nature. Therefore, he claims he twice suffered punishment for 

the same offense in violation of his right against double 

jeopardy. 

 We have held that the administrative suspension is civil 

and remedial, not penal, in nature, for double jeopardy 

purposes. See Ingram v. Commonwealth, 29 Va. App. 759, 762-63, 

514 S.E.2d 792, 794 (1999) (citing Tench v. Commonwealth, 21 Va. 

App. 200, 208, 462 S.E.2d 922, 925 (1995), and Brame v. 

Commonwealth, 252 Va. 122, 130-32, 476 S.E.2d 177, 182-83 

(1996)). We have also held that "[a]ny deviation from proper 

procedure does not change the fundamental character of the 

sanction, which is civil and remedial." Id. at 768, 514 S.E.2d 

at 797. The failure of the officer to comply with the statute 

did not transform the suspension into punishment for double 

jeopardy purposes. 

 Appellant claims, however, that he did not have an adequate 

remedy to challenge the non-compliance and, therefore, the 

failure to follow the statute should render the suspension 

punishment. He contends the statute only allows review for 

probable cause. Code § 46.2-391.2(C) provides: 
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Any person whose license or privilege to 

operate a motor vehicle has been suspended 

under subsection A may, during the period of 

the suspension, request the general district 

court . . . to review that suspension 

. . . . If the person proves to the court 

by a preponderance of the evidence that the 

arresting officer did not have probable 

cause for the arrest, that the magistrate 

did not have probable cause to issue the 

warrant, or that there was not probable 

cause for issuance of the petition, the 

court shall rescind the suspension . . . . 

Otherwise the court shall affirm the 

suspension. 

 The statute allows the accused to request review of the 

suspension, during the period of the suspension, but does not 

limit the permissible grounds of review. The statute mandates 

that the court shall rescind the suspension for lack of probable 

cause but does not state that this is the only ground for 

rescission. The ground specified in the statute does not 

preclude review on other grounds. 

 In Ingram, we held that review of the suspension had to be 

heard during the suspension period. The issue was whether the 

suspension provision applied when the accused could not take the 

breath test. Probable cause was clearly not an issue. 

"Appellant's remedy was to challenge the suspension as provided 

in the statute . . . ." Ingram, 29 Va. App. at 768, 514 S.E.2d 

at 797. As in Ingram, appellant failed to exercise this 

statutory right to challenge the administrative suspension 

during the period of suspension. 
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 The statute allows the accused to immediately challenge the 

administrative suspension in a civil proceeding. The findings 

of that proceeding are not binding on the criminal prosecution. 

"The court's findings are without prejudice to the person 

contesting the suspension or to any other potential party as to 

any proceedings, civil or criminal, and shall not be evidence in 

any proceedings, civil or criminal." Code § 46.2-391.2(C); see

also Jones, 23 Va. App. at 171-72, 474 S.E.2d at 865. 

 The administrative suspension was civil and remedial, not 

penal, in nature. Appellant's remedy was to challenge the 

non-compliance in the general district court during the period 

of the suspension. Therefore, appellant's subsequent conviction 

for DUI, third offense, did not violate his double jeopardy 

rights. 

II. 

 Appellant contends the trial court erred in allowing the 

Commonwealth to amend the warrant to charge DUI, third offense, 

in circuit court, after he already pled guilty to, and was found 

guilty of, DUI, second offense, in the general district court. 

He claims the amendment violated his double jeopardy and due 

process rights. 

A. Double Jeopardy 

 Code § 18.2-270 prescribes the punishment for DUI and 

increases the minimum jail sentence when the offense is a 

second, third, or subsequent offense. When the Commonwealth 
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amended the warrant to allege a third offense, appellant faced a 

longer period of mandatory incarceration. Therefore, the 

amended charge was a greater offense than that heard in the 

general district court. 

 The Fifth Amendment of the United States Constitution and 

Article I, Section 8 of the Virginia Constitution grant the 

accused protection against prosecution for the same offense 

after acquittal. Appellant asserts that by pleading guilty to 

DUI, second offense, the general district court in effect 

acquitted him of the greater offense of DUI, third offense. 

 Appellant relies on Buck v. City of Danville, 213 Va. 387, 

192 S.E.2d 758 (1972), in support of his position that, at trial 

de novo, the Commonwealth may not amend a warrant to charge a 

greater offense than that heard in general district court. 

However, Buck pled not guilty to DUI and the lower court 

acquitted him of DUI, but convicted him of a lesser-included 

offense of impaired driving. On appeal, the Commonwealth 

indicted Buck for DUI, and the circuit court convicted him of 

DUI. The Court stated, "'[T]here cannot be a trial de novo, or 

otherwise for the same offense after an acquittal by a court 

having authority and jurisdiction to try the offense.'" Id. at 

388, 192 S.E.2d at 759 (quoting Peak v. Commonwealth, 171 Va. 

535, 541, 199 S.E. 473, 476 (1938)). Therefore, Buck's double 

jeopardy rights were violated when he twice stood trial for a 

charge for which he had been acquitted. 
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 Here, the general district court did not acquit appellant 

of any offense. Acceptance of a guilty plea to a 

lesser-included offense does not constitute an acquittal of a 

greater offense. See Peterson v. Commonwealth, 5 Va. App. 389, 

400, 363 S.E.2d 440, 445 (1987). Appellant avoided prosecution 

for the greater offense by pleading guilty to a lesser offense, 

pursuant to a plea agreement. He then breached that agreement 

by appealing the conviction. "Where a defendant pleads guilty 

pursuant to a plea agreement and receives the agreed upon 

sentence, an implied term of the agreement is that the defendant 

will not appeal what he has bargained for and received." Id. at 

400, 363 S.E.2d at 447. Jeopardy did not attach because he did 

not stand trial for and was not acquitted of DUI, third offense. 

He did not suffer prosecution after acquittal and, therefore, 

his double jeopardy rights were not violated. 

B. Due Process 

 "A person convicted of an offense is entitled to pursue his 

statutory right to a trial de novo, without apprehension that 

the State will retaliate by substituting a more serious charge 

for the original one, thus subjecting him to a significantly 

increased potential period of incarceration." Duck v. 

Commonwealth, 8 Va. App. 567, 572, 383 S.E.2d 746, 749 (1989) 

(citation omitted). "'There is no appearance of retaliation 

when a defendant is placed in the same position he was in before 

he accepted the plea bargain.'" Peterson, 5 Va. App. at 401, 
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363 S.E.2d at 447 (quoting United States v. Anderson, 514 F.2d 

583, 588 (7th Cir. 1975)). Where there is no retaliation or 

vindictiveness in reinstating charges or amending charges to 

greater offenses, there is no due process violation. See id. at 

400-01, 383 S.E.2d at 447. The purpose of the trial de novo is 

to return the parties to the same position in which they found 

themselves in the lower court. See Buck, 213 Va. at 388, 192 

S.E.2d at 759. 

 When appellant appealed to the circuit court, he placed 

himself in the same position as he was prior to the plea 

agreement in the general district court. Appellant stipulated 

that the Commonwealth intended to amend the warrant to charge 

DUI, third offense, in the general district court. By appealing 

the lower court conviction, appellant found himself without the 

benefit of his bargain, without acquittal on any greater 

offense, and with the possibility and reality of being tried for 

the greater offense of DUI, third offense. Amending the warrant 

did not violate appellant's due process rights. 

 For the above stated reasons, we affirm the conviction of 

driving under the influence, third offense. 

 Affirmed.