In Virginia, a third offense driving while intoxicated within a 10 year period is punishable as a felony. In a recent decision, Stewart v. Commonwealth, the Court of Appeals reversed a Winchester Circuit Court's guilty finding on a felony DWI because the Commonwealth failed to prove that the instant offense was actually a third within 10 years. The Court of Appeals stressed that the timing element of prior convictions must also be proven beyond a reasonable doubt in order for a felony DWI conviction to stand.
In the Stewart case, the Commonwealth introduced evidence of an arrest warrant for a second offense DWI within 5 years, as well as a circuit dispositional order for a second offense DWI. However, no evidence was presented that the second offense DWI conviction in circuit court occurred within 5 years of the defendant's first offense DWI. The problem belying the Commonwealth in this situation was that after a conviction of second offense in general district court, the defendant appealed his case to circuit court. As a result of this de novo appeal, the defendant was entitled to a brand new trial as if nothing had happened in general district court. Consequently, the defendant was also required to be rearraigned by the Court on the charge, meaning the official reading of the charge and entry of a plea. The circuit court dispositional order only reflected a guilty plea to "DWI, 2nd offense" - it did not specify that it had occurred within 5 years of the first conviction.
Because the Commonwealth failed to introduce any other evidence that the defendant pled guilty to and was found guilty of a second offense DWI within 5 years (e.g., DMV record, transcript of circuit court arraignment, etc.), the Court of Appeals determined that the trial court erred in convictin and sentencing the defendant to a third offense (felony) DWI.
The defendant also alleged that the Commonwealth failed to prove her first conviction occurred in Virginia, and if it did not, that the foreign statute under which she was convicted was substantially similar to Virginia's DWI statute. The Court of Appeals, though, reaffirmed that a presumption exists in the favor of the Commonwealth that prior convictions are consistent with the Virginia DWI statute. The defendant therefore bears the burden of proving that a prior conviction is inconsistent with Virginia the Virginia statute. In the absence of any rebutting evidence, the trial court must presume that prior convictions are admissible for purposes of enhancing DWI penalties.