COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Fitzpatrick 

Argued at Alexandria, Virginia 

VALERIE CUMMINGS 

 OPINION BY 

v. Record No. 0286-96-4 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Jr., Judge 

 Robert E. Battle (Robert E. Battle, P.C., on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from her conviction for driving while intoxicated, 

a third offense within five years, Valerie Cummings contends (1) 

that her conviction violated the prohibition against double 

jeopardy, and (2) that the Commonwealth was collaterally estopped 

from prosecuting her for driving while intoxicated (DWI) because 

at an administrative license suspension hearing, the district 

court found no probable cause for her arrest. We disagree and 

affirm the judgment of the trial court. 

 On August 7, 1995, Ms. Cummings was arrested for driving 

while intoxicated "2nd or subsequent offense," in violation of 

Fairfax County Code § 82-1-6. Pursuant to the administrative 

license suspension (ALS) provisions, Code § 46.2-391.2, her 

driver's license was suspended for seven days. She challenged 

the seven-day suspension in Fairfax General District Court and on 
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August 11, 1995, the district court rescinded the suspension and 

wrote "No PC held" on the warrant. See Code § 46.2-391.2(C). 

 On November 3, 1995, Ms. Cummings appeared for trial on both 

charges in the Fairfax General District Court. The Commonwealth 

moved to amend the warrant to allege a violation of the state 

code and to allege that the DWI charge was for a third or 

subsequent offense within five years. Counsel for Ms. Cummings 

stated that he had no objection to the amendments, and said, 

"I'll stipulate to the prior convictions." 

 Ms. Cummings then moved in limine that the arresting officer 

be prohibited from testifying about the arrest because the 

probable cause issue had been decided at the ALS hearing. The 

district court granted this motion. Before the case proceeded 

further, the Commonwealth's Attorney moved to nolle prosequi both 

charges. The district court granted this motion over Ms. 

Cummings' objection. 

 On November 29, 1995, Ms. Cummings was indicted for driving 

while intoxicated, a third offense within five years. She was 

convicted on this indictment in the trial court. 

I. DOUBLE JEOPARDY

 Ms. Cummings contends that jeopardy attached when she 

stipulated in general district court to her two prior DWI 

convictions. 

 "'In a trial before a court without a jury the danger of 

conviction or jeopardy of an accused begins when the trial has 
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reached the stage where the Commonwealth begins to introduce its 

testimony.'" Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 

S.E.2d 709, 710 (1982) (quoting Rosser v. Commonwealth, 159 Va. 

1028, 1036, 167 S.E. 257, 259 (1933)). "'It is generally 

recognized that a nolle prosequi, if entered before jeopardy 

attached, does not bar further prosecution for the offense.'" 

Cantrell v. Commonwealth, 7 Va. App. 269, 281, 373 S.E.2d 328, 

333 (1988) (citation omitted). 

 When the district court granted the Commonwealth's pretrial 

motion to nolle prosequi the charges, no witness had been sworn 

and the Commonwealth had introduced no evidence. The pretrial 

discussion between the district court judge and counsel was in 

the nature of an opening statement. See Fields v. Commonwealth, 

2 Va. App. 300, 307, 343 S.E.2d 379, 382-83 (1986). Because the 

opening statement represents merely counsel's expectation as to 

the evidence to be presented and is not testimony, it is not 

evidence. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 

361 S.E.2d 436, 441 (1987). Similarly, resolution of preliminary 

matters prior to trial, before witnesses are sworn or testimony 

taken, does not place the defendant in jeopardy. 

 In Martin v. Commonwealth, 242 Va. 1, 406 S.E.2d 15 (1991), 

the defendant argued that the trial court's pretrial dismissal of 

an attempted capital murder charge, due to his earlier conviction 

for a lesser included offense, barred his subsequent prosecution 

for attempted murder. The Supreme Court noted that "jeopardy 
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attaches only after a jury is empaneled and sworn in a jury trial 

or the first witness is sworn in a bench trial." Id. at 8, 406 

S.E.2d at 18. The Supreme Court ruled that because the dismissal 

occurred before the swearing of any witness or the empaneling of 

jurors, it "[could not] form the basis of a double jeopardy bar 

to the prosecution for attempted murder." Id.

 In this case, the district court's pretrial granting of the 

Commonwealth's motion to nolle prosequi the charges occurred 

before the Commonwealth presented any evidence, before any 

witness was sworn, and therefore, before jeopardy attached. 

 Ms. Cummings' mere offer to stipulate the prior convictions 

was not the equivalent of the Commonwealth's introduction of 

testimony. The record manifests neither that the offer was 

accepted nor that the prior convictions were proffered as 

evidence. See Low v. Commonwealth, 11 Va. App. 48, 50, 396 

S.E.2d 383, 384 (1990); Hudson v. Commonwealth, 9 Va. App. 110, 

112, 383 S.E.2d 767, 768-69 (1989) (noting that the Commonwealth 

is not required to accept a defendant's stipulation and is 

entitled to prove the indictment). Thus, the trial court 

correctly ruled that the double jeopardy prohibition did not bar 

the prosecution. 

II. COLLATERAL ESTOPPEL

 Ms. Cummings next contends that the Commonwealth was 

collaterally estopped from prosecuting her for DWI following the 

district court's finding at the ALS hearing that no probable 
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cause supported Cummings' arrest. We disagree. 

 Our decision is controlled by Jones v. City of Lynchburg, 23 

Va. App. 167, 474 S.E.2d 863 (1996). Jones was arrested for DWI 

 and his driver's license was suspended administratively for 

seven days. See Code § 46.2-391.2. In an ALS hearing, the 

district court found that the police lacked probable cause to 

arrest Jones and rescinded the license suspension. Affirming 

Jones' DWI conviction, we said: 

 Because the license suspension hearing was a 

civil proceeding, "[a]pplication of the 

doctrine of collateral estoppel is not 

constitutionally mandated" [and] . . . 

"[b]ecause the 'issues of ultimate fact' in 

an administrative hearing held pursuant to 

[Code § 46.2-391.2] are different from those 

in a prosecution for the offense of driving 

while intoxicated, the doctrine of collateral 

estoppel does not bar . . . [a] subsequent 

prosecution for driving while intoxicated." 

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

omitted). 

 The judgment of the trial court is affirmed. 

 Affirmed.