Felony Driving Under Influence DUI Third Subsequent Offense Virginia DMV 18.2-266 18.2-270

Felony Driving Under Influence DUI Third Subsequent Offense Virginia DMV 18.2-266 18.2-270

KEVIN RAY MITCHEM v. COMMONWEALTH OF VIRGINIA

COURT OF APPEALS OF VIRGINIA

January 12, 2010, Decided

Issues:

Whether the trial court erred in admitting his Department of Motor Vehicles (DMV) driving transcript as proof of a prior conviction?

Whether the burden on defendant to rebut the presumption, violated the right to due process and the rights under the Confrontation Clause, U.S. Const. amend. VI?

Whether the trial court erred in admitting his Department of Motor Vehicles (DMV) driving transcript as proof of a prior conviction?

The court held that "In enacting Code 46.2-384, the legislature, in its wisdom, determined that a DMV transcript, certified pursuant to Code 46.2-215, "shall be prima facie evidence of the facts stated therein with respect to the prior offense." "Prima facie evidence is 'sufficient to raise a presumption of fact or establish the fact in question unless rebutted.'" 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."

Whether the burden on defendant to rebut the presumption violated the right to due process and the rights under the Confrontation Clause, U.S. Const. amend. VI?

The court held that "the appellant failed to make these arguments before the trial court, the issues are not properly preserved for appeal, and appellant is procedurally barred from making these arguments for the first time on appeal.

For these reasons, Rule 5A:18 bars the appellant's argument that Code 46.2-384 is unconstitutional and also 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 affirmed appellant's conviction.

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