Mark Andrew Lankford, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
MARK ANDREW LANKFORD, S/K/A
ANDREW MARK LANKFORD MEMORANDUM OPINION* BY
v. 	Record No. 0581-95-2 	JUDGE RICHARD S. BRAY
MARCH 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Andrea C. Long (Charles C. Cosby, Jr.; Boone,
Beale, Carpenter & Cosby, on brief), for
appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Mark Andrew Lankford (defendant) was convicted by the trial
court of driving under the influence of alcohol (DUI), third
offense. 	On appeal, defendant complains that this conviction was
barred by a related conviction for reckless driving. 	We agree
and reverse the conviction.
The pertinent facts are uncontroverted. 	At approximately
11:00 p.m. on the evening of March 19, 1994, Trooper D. J. Cline
observed a Toyota being driven erratically at a "high rate of
speed." 	Cline pursued the vehicle in his police cruiser and
signaled the driver to "pull . . . over." 	When the Toyota only
"slowed down," Cline "pulled up beside" the car, and the driver
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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then stopped along a dirt road. 	However, as Cline walked toward
the vehicle, it "took off," and Cline quickly resumed the chase,
during which the Toyota again stopped and sped away. 	Following a
final pursuit at speeds in excess of eighty miles per hour, the
Toyota was trapped by a "rolling roadblock," and the operator,
defendant, was arrested for reckless driving, DUI, and other
offenses. 	The entire incident spanned approximately twenty
minutes. 	Defendant admitted that he attempted to escape because
he was intoxicated1
and an habitual offender.
At trial in the general district court, defendant pled
guilty to reckless driving and not guilty to DUI, but was
convicted of both offenses. 	On appeal of the DUI to the trial
court, defendant unsuccessfully argued that Code § 19.2-294.1
required dismissal of that charge following the reckless driving
conviction.
Code § 19.2-294.1 provides that
[w]henever any person is charged with a violation of
§ 18.2-266 or any similar ordinances of any county,
city, or town and reckless driving growing out of the
same act or acts and is convicted of one of these
charges, the court shall dismiss the remaining charge.
(Emphasis added). 	Thus, although DUI and reckless driving are
"separate and distinct" violations, Padgett v. Commonwealth, 220
Va. 758, 760, 263 S.E.2d 388, 389 (1980), a "conviction of one
offense . . . preclude[s] conviction of the other, whenever both
1The sufficiency of evidence to sustain the DUI conviction
is not in issue.

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'gr[o]w' from the same 'continuous, uninterrupted course of
operation of a motor vehicle.'" 	Harris v. City of Virginia
Beach, 19 Va. App. 214, 216, 450 S.E.2d 401, 402 (1994) (quoting
Padgett, 220 Va. at 760-61, 263 S.E.2d at 389-90). 	"It is the
commonality of the underlying offending conduct, the continuous,
uninterrupted operation of a motor vehicle, that invokes the
preclusive effect of the statute." 	Id. at 216-17, 450 S.E.2d at
402.
Here, defendant was charged and convicted of both offenses
resulting from the continuous operation of a motor vehicle,
recklessly and while intoxicated, during an uninterrupted police
pursuit. 	The charges were, therefore, "intimately related in
time and distance, arising from and connected by one continuous,
uninterrupted operation of defendant's motor vehicle," thereby
constituting a single offense within the intendment of Code
§ 19.2-294.1. 	Id. at 217, 450 S.E.2d at 402.
Accordingly, we reverse the DUI conviction.
Reversed and final judgment.