DUI Attorney Virginia

KEVIN RAY MITCHEM v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
January 12, 2010, Decided

On October 27, 2007, appellant was arrested for DUI, having been convicted of DUI on two previous occasions within the past ten years.  As a result, appellant was charged with DUI as a third or subsequent offense committed within a ten-year period, in violation of Code §§ 18.2-266 and 18.2-270.  At trial, the Commonwealth admitted into evidence, without objection, a certified conviction order of appellant’s DUI in Fauquier County. In addition, the Commonwealth sought admission of a portion of appellant’s DMV transcript to establish appellant’s DUI conviction in Prince William County.  Appellant objected to the admission of the DMV transcript on several grounds.  The trial court admitted the transcript over appellant’s objections.  At the close of evidence, appellant moved to strike the evidence, again arguing that without a conviction order, the DMV transcript was insufficient to show appellant’s prior DUI conviction. The trial court denied appellant’s motion to strike and found appellant guilty of DUI, third or subsequent offense, in violation of Code §§ 18.2-266 and 18.2-270.  Appellant Appealed.

Issues:

Whether the trial court erred in admitting his Department of Motor Vehicles (DMV) driving transcript as proof of a prior conviction?
Whether the trial court erred in denying his motion to strike the evidence?
Whether the Commonwealth’s use of the DMV transcript to establish its prima facie case violates the Confrontation Clause of the Sixth Amendment to the United States Constitution?

Discussion:

In this case appellant argues that applying Melendez-Diaz, this Court should find the trial court erred in admitting the DMV transcript without subjecting the preparer of the DMV transcript to cross-examination. Without deciding whether DMV transcripts are testimonial under the framework of Melendez-Diaz, we find appellant failed to make this argument in the trial court.  The trial court was not given any indication that appellant sought to cross-examine the DMV Commissioner regarding the accuracy of the transcript.  In fact, appellant’s argument at trial was that the Commonwealth did not lay a proper foundation for admission of the transcript as a business record and that “generally speaking, it’s not good enough.” Rule 5A:18 requires that objections to a trial court’s action or ruling be made with specificity in order to preserve an issue for appeal.  Appellant’s objection, by its very wording, is a “general” objection and thus does not come close to the specificity required to preserve an issue for appeal.

Accordingly, this Court need not decide whether Melendez-Diaz applies to the facts of this case because appellant did not properly preserve the issue for appeal.  Because the requirements of Rule 5A:18 have not been met, we will not consider appellant’s constitutional arguments.  Moreover, because appellant does not ask us to do so, and we may not invoke the ends of justice exception to Rule 5A:18 sua sponte, we hold that appellant waived his constitutional arguments and decline to consider them on appeal.  In this case, once the DMV transcript was admitted, the Commonwealth presented a prima facie case sufficient to prove appellant’s prior DUI convictions. Appellant presented no evidence to rebut that presumption.  Accordingly, the evidence was sufficient to prove the instant offense was appellant’s third DUI within a ten-year period.

Conclusion:

For the above said reasons, this Court finds Rule 5A:18 bars our consideration of appellant’s argument that Code § 46.2-384 is unconstitutional.  This Court further finds the evidence was sufficient to convict appellant of driving under the influence, third or subsequent offense within a ten-year period, in violation of Code §§ 18.2-266 and 18.2-270.  Accordingly, this Court affirms appellant’s conviction.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.

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