Virginia police and prosecutors love seeking mandatory minimum sentencing in DWI cases for blood/breath alcohol levels allegedly at 0.15 or higher, and for repeat DWI offenses. Mandatory minimum sentencing efforts must always be thoroughly challenged.

Thankfully, Virginia DWI law makes clear that mandatory minimum sentencing for repeat offenses only applies to substantially similar offenses. Because a Virginia DWI conviction is only available for operating a motor vehicle — Virginia Code § 18.2-266 (limiting DWI prosecutions to motor vehicles) &  Va. Code  § 46.2-100 (defining “motor vehicle” ) — a defendant charged as a DWI repeat offender needs to attack any non-Virginia state statute that permits a DWI conviction for operating a non-motorized vehicle.

Consequently, this week the Virginia Court of Appeals in an unpublished opinion found that California’s DWI statute is not substantially similar to Virginia’s, because California’s DWI statute applies to “vehicles” whereas Virginia’s DWI law is narrowed to covering the operation of “motor vehicles”. Patterson v. Virginia, Record No. 0821-16-1 (Va. App., July 25, 2017) (unpub’d).

Where another state’s DWI statute is broader than Virginia’s, Patterson does still allow for an out-of-state prior DWI conviction to qualify as substantially similar to a Virginia DWI conviction if the record of the out-of-state case sufficiently establishes that the conviction involved operating a motorized vehicle.

Clearly, Patterson’s Virginia trial judge never in the first place should have allowed his prior California DWI conviction to qualify for mandatory minimum sentencing. At the same time, Virginia judges are generalists dealing not only with DWI law, but also all other criminal cases, and a wide range of civil cases. The trial lawyer needs to be ready to clearly, quickly, and persuasively convince the judge of the correct state of the relevant law so that an appeal is not necessary in the first place.

The law can be very nuanced in arguing lack of substantial similarity between other state’s laws and Virginia’s. For instance, although neighboring Maryland’s DWI law purports to cover vehicles rather than only motor vehicles, Virginia’s Court of Appeals in 2000 took the unfortunate leap of concluding that somehow the interstate Driver License Compact followed by Maryland and Virginia meant that Maryland DWI law would only apply to motor vehicles. Lowe v. Virginia, 31 Va. App. 806 (2000). Tell that to the trial judge whom I heard many years ago accept a DWI guilty plea for DWI while riding a bicycle.

Of course, substantial similarity or lack thereof among state DWI laws can be argued not only in considering the state’s definition of a vehicle for DWI cases, but also in challenging the state code’s very definition of DWI. For that reason, for instance, I argue that the District of Columbia’s DWI law is not substantially similar to Virginia’s, because the D.C. DWI law includes defining DWI as having a 0.08 or higher breath alcohol level at the time of breath testing, whereas the Virginia DWI law looks at the breath alcohol level at the time of driving, at least for alleged breath alcohol levels under 0.15. Yap v. Virginia., 49 Va. App. 622, 631 (2007); Wimbish v. Virginia, 51 Va. App. 474, 658 S.E.2d 715 (2008).

When mandatory minimum sentencing is threatened for a criminal defendant’s being charged as a repeat offender, it is the defense lawyer’s job to pursue a meticulous, and sometimes laborious, process of carefully reviewing the evidence of the prior convictions, the admissibility of that evidence, and the substantial similarity or not of the prior conviction in the light of the relevant statutory law and caselaw. If the defense lawyer does not pursue that process, nobody else will.