COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Petty and Senior Judge Willis Argued at Chesapeake, Virginia

BERNARD LUTHER DENNIS MEMORANDUM OPINION * BY v. Record No. 2256-07-1 JUDGE JERE M. H. WILLIS, Jr. DECEMBER 9, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS C. Peter Tench, Judge Charles E. Haden for appellant. Virginia B. Theisen, Senior As sistant Attorney General (Robert F. McDonnell, Attorney General, on briefs), for appellee.
Amicus Curiae : The City of Newport News (Collins L. Owens, Jr., Deputy City Attorney, on brief), for appellee.

On appeal from his conviction of driving wh ile under the influence of alcohol (DUI) in violation of Code § 18.2 -266, a second such offe nse committed within five to ten years, Bernard Luther Dennis contends (1) that the trial court er red in denying his motion to dismiss because the charging warrant referenced an invalid local ordinanc e, and (2) that the evidence was insufficient to support his conviction of a second offense. 1 We affirm the judgmen t of the trial court.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The original order of conviction, date d August 24, 2007, captioned the case to show “City of Newport News” as prosecuting au thority and recited the appearance of the Commonwealth’s attorney on be half of the city. By order entered November 12, 2008, nunc pro tunc August 24, 2007, pursuant to Code § 8.01-428(B), the trial court identif ied and corrected a clerical error and modified the order to identif y the Commonwealth as the prosecuting authority, being represented in that regard by the Commonwealth’s attorney.- 2 - Facts “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). About 2:30 a.m. on September 23, 2006, Offi cer A.L. Hoxter stopped Dennis’s vehicle because he was driving without his headlights illum inated. Hoxter noted a strong odor of alcohol about Dennis. Dennis stated he had drunk a beer an hour earlier. Hoxter removed Dennis from the vehicle and administered a series of field sobriety tests, which Dennis failed to complete satisfactorily. When Dennis blew into an “alcosensor” machin e, it gave a reading of .11. Hoxter obtained a warrant ch arging Dennis with DUI, in vi olation of sections “26-8, 18.2-266/18.2-270, Code or Ordinances of this city, county or town[.]” 2 The warrant charged Dennis committed the offense “after having comm itted one prior violation of § 18.2-266 or an offense set forth in subsection E of § 18.2-270 during a period of five to ten years from the date of the current offense.” Describing the charged offense with language near ly identical to that contained in Code § 18.2-266, the Virginia statut e prohibiting DUI, the warrant alleged appellant had

2 Section 26-8(a) of the Code of Ordinan ces of the City of Newport News (Newport News Code) provided in pertinent part: Pursuant to the authority of Sections 46.2-1313 and 1-220 of the Code of Virginia, all of the pr ovisions and requirements of the laws of the state contained in Titl e 46.2 of the Code of Virginia, as amended, except those provisions and requirements the violation of which constitutes a felony, and except those provisions and requirements which, by their very nature, can have no application to or within the cit y, are hereby adopted and incorporated in this chapter by reference and made applicable within the city. The incorporation by reference containe d in this section shall include any future amendments to laws or regulations so referenced.- 3 - drive[n] or operate[d] a motor vehicle while having a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of br eath; or while under the influence of alcohol; or while under the influe nce of a narcotic drug or other self-administered intoxicant or dr ug, or a combination of drugs, to a degree which impaired the accused’s ability to drive or operate a motor vehicle safely; or while under the combined influence of alcohol and a drug or drugs to a degree which impaired the accused’s ability to drive or operate a motor vehicle safely. The Newport News General Di strict Court found Dennis guilty as charged. He appealed to the trial court. In the trial court, Denni s moved to dismiss the charge, contending Newport News Code § 26-8 was invalid as violating Dillo n’s Rule. He argued that Newport News Code § 26-8 did not incorporate by reference Title 18.2 of the Code of Virginia and did not adopt future amendments to the Code of Virginia. The trial court denied the motion to dismiss and amended the warrant to eliminate the re ference to Newport News Code § 26-8. At trial, the Commonwealth introduced a certified copy of Dennis’s 1997 conviction of DUI in the Newport News Gene ral District Court. The wa rrant underlying that conviction charged him with “driv[ing] or operat[ing] a motor vehicle while under the influence of alcohol . . . to a degree which impaired [his] ability to drive or operate a motor vehicle.” The warrant charged he had violated sections “26-72/18.2- 266, Code or Ordinances of this city.” 3 Dennis argued that Newport News Code § 26-8 was i nvalid, rendering his 1997 conviction invalid and insufficient to constitute a prior conviction. 4 The trial court rejected this argument and found Dennis guilty of DUI in violation of Code § 18.2-266, a second offense committed within five to ten years.

3 Newport News Code § 26-72 incorporated by reference “Article 2 (Section 18.2-266 et seq.) of Chapter 7 of Title 18.2, Code of Virginia , as amended and as they shall be amended in the future . . . .”

4 Appellant’s argument in the trial court, and on appeal, seemingly ignores the fact that the 1997 conviction order refers to Newport News Code § 26-72, not Newport News Code § 26-8.- 4 - I. Dennis contends the trial court erred in ame nding the warrant to eliminate reference to Newport News Code § 26-8. Under Rule 3A:4, an arrest warrant must describe the offense charged. This description must comply with Rule 3A:7(a), which deals with the description of the charge that must be contained in an indictment. We ha ve held under this rule that an indictment must give an accused no tice of the nature and character of the offense. Wilder v. Commonwealth , 217 Va. 145, 225 S.E.2d 411 (1976). The same, therefore, is true of warrants. Greenwalt v. Commonwealth , 224 Va. 498, 501, 297 S.E.2d 709, 710-11 (1982). Notice ensures that the accused “can adequately prep are to defend against his accuser.” Willis v. Commonwealth , 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409 (1990). “[T]rial courts have substantia l discretion to amend warrants.” Rawls v. Commonwealth , 272 Va. 334, 344, 634 S.E.2d 697, 702 (2006). Code § 16.1-137 provides that “[u]pon the trial of the warrant on appeal the [circuit] court may, upon its own motion or upon the request either of the attorney for the prosecution or for the accused, amend the form of the warrant in any respect in which it appears to be defective.” Moreover, if a warrant charges a defendant under an improper or invalid county or municipal ordinanc e, the circuit court may amend it to charge the defendant under the rele vant state statute. See Robinson v. Commonwealth , 206 Va. 766, 769, 146 S.E.2d 197, 200 (1966). Prior to the amendment, the warrant, by its reference to Code § 18.2-266, provided Dennis with notice of the nature and character of the offense w ith which he was charged. The description of the offense contained language identical in all pertin ent respects to Code § 18.2-266. The amendment of the warrant did not change the nature and character of the offense charged. Dennis claimed no surprise re garding the charge he was facing, nor did he- 5 - request a continuance to prepare for trial. Thus, the tria l court did not err in amending the warrant and in denying Denni s’s motion to dismiss.
II. Dennis contends the trial court erred in permitting the Commonwealth to establish his prior DUI conviction with the 1997 order. He ar gues the prior judgment was void because of the alleged invalidity of Newport News Code § 26-8. 5 Notwithstanding the inclusion of a reference to a Newport News ordinance, the warrant upon which Dennis pled guilty and was convicted in 1997 charged him with committing DUI in violation of Code § 18.2-266. He raises no chal lenge to the validity of Code § 18.2-266. “By the citation of the statute in the [warrant] [Dennis] was informed of the essential elements of the case against him.” Reed v. Commonwealth , 3 Va. App. 665, 667, 353 S.E.2d 166, 168 (1987). The citation to the Newport News ordinance was mere surplusage, neither adding to nor subtracting from the sufficiency of the charge. Code § 19.2-226 provides that “[n]o indictment or other accusation shall be quashed or deemed invalid” due to “omission or insertion of any other words of mere form or surplusage[.]” Accordingly, the trial court di d not err in admitting the 1997 or der and finding it sufficient to prove the prior offense. Conclusion The judgment of the tr ial court is affirmed. Affirmed

.

5 Appellant’s argument does not challenge the validity of Newport News Code § 26-72, the ordinance cited in the 1997 conviction.