One trouble with prior convictions is the sentencing risk that those prior convictions will have on enhancing any subsequent sentencing in a criminal case.

A case in point is Virginia’s harsh mandatory minimum sentencing scheme for subsequent DWI convictions. Va Code § 18.2-270.

Part of defending such allegations is not only to challenge the newest DWI charge, but also to attack whether the prosecution has proven the prior convictions, and whether any prior out-of-state DWI conviction are substantially similar to Virginia’s DWI statute. Va Code § 18.2-270(E).

Virginia’s Court of Appeals recently addressed the substantially similar analysis as follows:

Although the General Assembly did not define “substantially similar,” “in the context of determining if another state’s statute is substantially similar to a code section, this Court has previously ‘establish[ed] that two things are “substantially similar” if they have common core characteristics or are largely alike in substance or essentials.’” Mason, 64 Va. App. at 608, 770 S.E.2d at 228 (quoting Johnson v. Commonwealth, 53 Va. App. 608, 613, 674 S.E.2d 541, 543 (2009)). In this analysis, “the Commonwealth bears the burden of proving the out of state conviction was obtained under laws substantially similar to those of the Commonwealth. If the Commonwealth shows substantial similarity, the burden shifts to the defendant to produce ‘evidence of dissimilarity.’” Id. (quoting Dean v. Commonwealth, 61 Va. App. 209, 214, 734 S.E.2d 673, 676 (2012)). Dissimilarity exists, for instance, “if a person may be convicted of an offense under another jurisdiction’s statute for conduct which might not result in a conviction under [Virginia’s statute].” Cox v. Commonwealth, 13 Va. App. 328, 330-31, 411 S.E.2d 444, 446 (1991). Sound policy considerations justify this principle, for “[i]f a conviction in another state is based on conduct which is not a violation of [Virginia law], then to consider it under [a recidivist statute] would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized.” Id. at 331, 411 S.E.2d at 446. Thus, “another state’s law permitting a conviction for an act not constituting an – 5 – offense under Code § 18.2-266 is not substantially” similar under Code § 18.2-270 and cannot be introduced as a prior Code § 18.2-266 conviction for penalty enhancement. Id.

Beckham v. Virginia,  __  Va. App. ___ (May 30, 2017).

Beckham concludes that Florida’s DWI law is substantially similar to Virginia’s, and affirms his conviction.