Appeal from the Superior Court of the District of Columbia (CTF1129-05) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge, and REID and THOMPSON, Associate Judges.
Appellant, the District of Columbia, appeals the trial court's judgment in which it declined to enhance appellee Mark L. Fitzgerald's penalty for driving under the influence in the District of Columbia, in violation of D.C. Code § 50-2201.05 (b)(1)(A) (2001). Mr. Fitzgerald previously was convicted of operating a motor vehicle after illegally consuming alcohol, in violation of Va. Code Ann. § 18.2-266.1 (2004). D.C. Code § 50-2201.05 (b)(4) requires a conviction under "substantially similar laws of any other state" to be "considered a conviction" for purposes of the penalty enhancement provision. We hold that D.C. Code § 50-2201.05 (b)(1) (2001) and Va. Code Ann. § 18.2-266.1 (2004) are substantially similar, and thus, the trial court was required to enhance Mr. Fitzgerald's penalty under D.C. Code § 50-2201.05 (b)(1)(B). Accordingly, we vacate Mr. Fitzgerald's sentence and remand this case to the trial court for resentencing.
The record reveals that on June 11, 2003, Mr. Fitzgerald was convicted in the General District Court of Fairfax County, Virginia for the criminal offense of driving after illegally consuming alcohol, in violation of Va. Code Ann. § 18.2-266.1 (A) (2004). The offense occurred on April 25, 2003. At the time of the offense, Mr. Fitzgerald was twenty-years-old. Following his conviction, his license was suspended for six months.
On August 4, 2005, Mr. Fitzgerald, then twenty-two years of age, waived his right to a jury trial and agreed to enter a guilty plea to the charge of driving under the influence per se in the District of Columbia, in violation of D.C. Code § 50-2201.05 (b)(1)(A) (2001). The government's proffer of proof revealed that on February 15, 2005, at approximately 11:50 p.m. in the 2400 block of K Street, Northwest, Officers Proctor and Fair of the Metropolitan Police Department were conducting speeding enforcement when they heard a vehicle engine racing on Washington Circle Bridge. The vehicle was stopped at a red light and when it turned green, the officers "observed a red Ford Mustang speeding toward them at a high rate of speed." The car "came to a hard stop behind the [police] cruiser." Officer Fair approached the driver's side of the car where Mr. Fitzgerald was seated, and detected a strong odor of alcohol. He asked Mr. Fitzgerald "when was the last time he consumed alcohol." Mr. Fitzgerald responded, "45 minutes to an hour ago." Officer Proctor asked Mr. Fitzgerald to step out of the vehicle and conducted three field sobriety tests. Mr. Fitzgerald showed signs of alcohol impairment, and "subsequently stated that he had consumed four beers." Mr. Fitzgerald also consented to the performance of a chemical test, the results of which revealed a blood/alcohol level of .10.
The District noted that Mr. Fitzgerald had a prior conviction in the state of Virginia for driving after illegally consuming alcohol, and that the government had reserved the right to use previously filed enhancement papers.*fn1 The trial court agreed that the enhancement papers were properly filed, but took the position that the Virginia offense was a juvenile matter, that the filing of enhancement papers did not "mean [that the court] ha[d] to enhance [Mr. Fitzgerald's] punishment."*fn2 In light of Mr. Fitzgerald's Virginia conviction, the District recommended that the trial court impose a sentence of "364 days, ESS, all but 5 days with one year of supervised probation," as well as a $1,000.00 fine, a payment of $100.00 to the crime victims compensation fund, conditions relating to the traffic alcohol program, and alcohol treatment. However, the trial judge imposed a sentence of ninety days with execution suspended, six months supervised probation, a $300 fine, a $100 contribution to the Victims of Crime Fund, and completion of the TAP program.
The District of Columbia argues that D.C. Code § 50-2201.05 (b)(1)(B) (2001) required the trial court to impose an enhanced sentence on Mr. Fitzgerald since he was convicted of a second offense of driving under the influence within a fifteen-year period. Thus, the District contends, the trial court erred by not considering Mr. Fitzgerald's prior Virginia conviction when it sentenced him. The District asserts that D.C. Code § 50-2201.05 (b)(1) and Va. Code Ann. § 18.2-266.1 are substantially similar, and hence, the trial judge had no discretion regarding imposition of the enhanced penalty. Mr. Fitzgerald primarily claims that the Virginia and District statutes are not substantially similar, and further argues that the District waived its right to appeal on the ground of the enhancement penalty because it did not follow the dictates of D.C. Code § 23-111 (d) (2) by appealing, prior to sentencing, the trial court's decision not to enhance his penalty.
Our review of this matter is de novo because it involves a question of statutory construction. District of Columbia v. Morrissey, 668 A.2d 792, 796 (D.C. 1995). "We look to the plain meaning of the statute first, construing words according to their ordinary meaning." Boyle v. Giral, 820 A.2d 561, 568 (D.C. 2003) (citing J. Parreco & Son v. Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989)). "The literal words of [a] statute, however, are not the sole index to legislative intent, but rather, are to be read in the light of the statute taken as a whole, and are to be given a sensible construction and one that would not work an obvious injustice." Id. (citing District of Columbia v. Gallagher, 734 A.2d 1087, 1091 (D.C. 1991)) (other citation and internal quotation marks omitted); see also Cass v. District of Columbia, 829 A.2d 480, 482 (D.C. 2003). "We must also be mindful that our interpretation [of a statute] is not at variance with the policy of the legislation as a whole, requiring that we remain more faithful to the purpose than the word." Jeffrey v. United States, 892 A.2d 1122, 1128 (D.C. 2006) (citation and internal quotation marks omitted). We may also look to the legislative history of a statute. Id.
The statute under which Mr. Fitzgerald was convicted in the District is D.C. Code § 50-2201.05 (b)(1) (2001). At the time of his conviction, the relevant portion of the statute, § 50-2201.05 (b)(1)(A) (Supp. 2006), specified:
No individual shall, when the individual's blood contains .08% or more, by weight, of alcohol (or when .38 micrograms or more of alcohol are contained in 1 milliliter of his breath, consisting of substantially alveolar air), or the individual's urine contains .10% or more, by weight, of alcohol, or under the influence of intoxicating liquor or any drug or any combination thereof, operate or be in physical control of any vehicle in the District.
No individual under 21 years of age shall, when the individual's blood, breath, or urine contains any measurable amount of alcohol, operate or be in physical control of any vehicle in the District. Any individual violating any provision of this paragraph, upon conviction for the first offense, unless the individual has previously been convicted for a violation of paragraph (2) of this subsection, shall be fined $300 and may be imprisoned for not more than 90 days. In addition, if the individual's blood contains at least .20%, but not more than .25%, by weight, of alcohol, the individual shall be imprisoned for an additional mandatory minimum period of 5 days, or if the level is more than ...