Commonwealth v. Brown

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge Cole

Argued at Richmond, Virginia

COMMONWEALTH OF VIRGINIA

OPINION BY

v. Record No. 2823-97-2 JUDGE LARRY G. ELDER

JANUARY 12, 1999

WALTER ONASSIS BROWN

FROM THE CIRCUIT COURT OF HENRICO COUNTY

Lee A. Harris, Jr., Judge

Jeffrey A. Spencer, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellant.

No brief or argument for appellee.

The Commonwealth appeals from an order entered pursuant to

Code § 46.2-361(B) restoring the driving privileges of Walter

Onassis Brown, previously declared a habitual offender by the

Department of Motor Vehicles pursuant to Code § 46.2-352. The

Commonwealth contends the circuit court lacked authority to order

restoration of Brown's driving privileges under Code

§ 46.2-361(B) because the convictions which led to the habitual

offender determination did not meet the requirements of that code

section. Rather, the predicate convictions were based at least

in part on suspensions for failure to have insurance on a vehicle

and operating a vehicle without insurance, suspensions not set

out in Code § 46.2-361(C). For the reasons that follow, we agree

with the Commonwealth's contentions and reverse the trial court's

restoration of Brown's driver's license.

I.

FACTS

On April 1, 1997, the Department of Motor Vehicles (DMV)

declared Brown a habitual offender (H.O.) and revoked his driving

privileges indefinitely, effective May 4, 1997. That H.O.

declaration was based on Brown's three convictions for driving on

a revoked or suspended license on

(1) November 22, 1995 (convicted February 28, 1996);

(2) January 13, 1996 (convicted March 20, 1996); and

(3) January 2, 1997 (convicted March 13, 1997).

At the time of each of these three driving offenses, three

separate license suspensions were in effect against Brown: 1

(1) 1993 suspension for operating or permitting

operation of an uninsured motor vehicle in

violation of Code § 46.2-707;

(2) 1993 suspension for failure to respond to

insurance monitoring request by providing name of

insurance company after registering a motor

vehicle and not paying the uninsured motor vehicle

fee;

(3) 1994 suspension for failure to pay fine following

conviction for improper exhaust system.

On September 3, 1997, Brown filed a "Petition for

Restoration of Driving Privilege Habitual Offender." He checked

block "D" on that form, requesting restoration pursuant to Code

§ 46.2-361(B) and certifying that he

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Three additional suspensions had been issued by the date

of Brown's January 2, 1997 offense--the final offense providing

the basis for Brown's April 1, 1997 H.O. declaration: two

suspensions for failure to pay fines and one suspension for

failure to attend the interview required for an alcohol safety

action program. The Commonwealth did not rely on any of these

suspensions at trial, and we do not consider them on appeal in

assessing the propriety of the trial court's ruling.

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[had] been determined to be an habitual

offender based entirely upon convictions of

driving while my license or privilege to

drive was suspended or revoked:

(i) for failure to pay fines and costs;

or

(ii) for failure to furnish proof of

financial responsibility; or

(iii) for failure to satisfy a

judgment.

The Commonwealth moved to dismiss the petition on the ground

that Brown was ineligible for restoration under Code

§ 46.2-361(B). Following a hearing on the motion, the trial

court concluded that "there's just no way to tell" on which

license suspension or suspensions each of the three predicate

offenses was based. It said that

[Brown] probably technically does not fall

under the statute. However, it's enough

question in my mind that I'm going to give

him the benefit of the doubt. And one of the

reasons is, if you look at the conviction

from 2/28/96, it actually is not a valid

conviction - I'm not saying it's not a valid

conviction, but if you assume the law was

followed under [Code § 46.2-301], then there

was no license suspension or what have you,

so I don't know what happened in there. In

the scheme of things, I'm going to restore

his privilege to operate if he meets any

other requirements of DMV.

Brown's counsel responded, "Yes, sir," and the trial court

commented further, "But I think your argument, legally speaking,

is a correct one."

II.

ANALYSIS

Code § 46.2-361(B) provides in relevant part as follows:

Any person who has been found to be an

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habitual offender, where the determination or

adjudication was based entirely upon

convictions as set out in subdivision 1 c of

§ 46.2-351, may, after payment in full of all

outstanding fines, costs and judgments

relating to his determination, and furnishing

proof of financial responsibility, if

applicable, petition [a specified] court

. . . for restoration of his privilege to

drive a motor vehicle in the Commonwealth.

Id. (emphasis added). Code § 46.2-361(C) provides the following

additional limitations:

This section shall apply only where the

conviction or convictions as set out in

subdivision 1 c of § 46.2-351 resulted from a

suspension or revocation ordered pursuant to

(i) § 46.2-395 for failure to pay fines and

costs, (ii) § 46.2-459 for failure to furnish

proof of financial responsibility, or (iii)

§ 46.2-417 for failure to satisfy a judgment,

provided [certain conditions have been met].

Because habitual offender proceedings are civil in nature and

Brown petitioned the court for restoration of his license

following proceedings declaring him a H.O., he bore the burden of

proving by a preponderance of the evidence that he met the

statutory conditions for restoration. See Dicker v.

Commonwealth, 22 Va. App. 658, 661, 472 S.E.2d 655, 657 (1996)

(citing Moffitt v. Commonwealth, 16 Va. App. 983, 986, 434 S.E.2d

684, 687 (1993)). Under the statute, if any one of Brown's

predicate convictions did not meet the requirements of subsection

(C), he was not entitled to restoration of his driver's license.

We hold that at least one of Brown's convictions for driving

on a revoked or suspended license did not meet the requirements

of subsection (C) in that it was based on both (1) his October

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19, 1993 license suspension under Code § 46.2-707 for operating

an uninsured motor vehicle without first having paid the

uninsured motor vehicle fee and (2) his December 9, 1993 license

suspension under Code § 46.2-706 for failure to respond to an

insurance monitoring request by furnishing proof of liability

insurance.

We reject the argument Brown made in the trial court that

the uninsured motorist fee is a fine or cost such that his

suspensions under Code §§ 46.2-706 and 46.2-707 were for failure

to pay fines or costs. Code § 46.2-361(C) specifically

references a suspension "for failure to pay fines and costs" as

occurring pursuant to "§ 46.2-395." Code § 46.2-395 specifically

references "lawful fines, court costs, forfeitures, restitution

and penalties," and it specifically includes "any fee assessed

. . . under . . . § 18.2-271.1." It does not, however,

incorporate §§ 46.2-706 or 46.2-707. Absent specific

incorporation, we decline to hold that the uninsured motorist

"fee of $500" is a "fine" or "court cost." Viewing the

provisions of Code §§ 46.2-706 and 46.2-707 in context makes

clear that the $500 is a "fee" payable in lieu of liability

insurance and does not constitute a fine or court cost.

Because conviction for violation of a license suspension

issued pursuant to Code §§ 46.2-706 or 46.2-707 is not one of the

bases enumerated in Code § 46.2-361(C), Brown's H.O.

determination was not based "entirely" upon convictions of the

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type enumerated in subsection (B). That Brown was under one or

more concurrent license suspensions which would qualify under

Code § 46.2-361 did not negate the existence of the two

indefinite license suspensions under Code §§ 46.2-706 and

46.2-707, non-qualifying statutes. Code § 46.2-395(E), which

permits suspension for failure to pay enumerated fines and court

costs, specifically provides that

[i]f the court has suspended or revoked the

driver's license for any lawful reason other

than [failure to pay fines or costs under]

this section, or the conviction is one for

which revocation or suspension is required

under any provision of this title [other

than] this section, then the suspension

permitted under this section shall be in

addition to, and run consecutively with, the

revocation or suspension [imposed pursuant to

court order or any other provision].

Id. Therefore, the logical conclusion under these facts is that

each of Brown's predicate convictions was for violating all three

suspensions--his October 19, 1993 suspension for operating or

permitting the operation of an uninsured motor vehicle; his

December 9, 1993 suspension for failing to provide the name of

his liability insurance company after registering a motor vehicle

and not paying the uninsured motor vehicle fee; and his August 5,

1994 suspension for failing to pay a fine. As discussed above,

Brown, as the petitioner, bore the burden of proving by a

preponderance of the evidence that his predicate convictions met

the requirements for restoration. Because Brown presented no

evidence on this point, he failed to meet his burden of proof.

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We also conclude that where a conviction for driving on a

revoked or suspended license is based on an offense committed

when the driver is under more than one suspension or revocation,

it is rendered under all such suspensions and revocations.

Although only a single conviction results from the act of

driving, the statutory scheme does not permit a court to choose a

particular suspension or revocation upon which to base a

conviction. To hold otherwise would allow a court to give

preferential treatment to people with suspensions or revocations

both for violations that do not qualify for restoration under

Code § 46.2-361(C) and for violations that do qualify under that

statute. We conclude that the legislature could not have

intended such a result. See, e.g., Branch v. Commonwealth, 14

Va. App. 836, 839, 419 S.E.2d 422, 424 (1992) (holding that "a

statute should never be construed so that it leads to absurd

results").

Under these standards, any one of the three predicate

convictions upon which Brown's H.O. declaration was based could

have been rendered against Brown if the only reason for

suspension of his license had been his non-compliance under Code

§§ 46.2-706 or 46.2-707. Therefore, Brown failed to prove that

his H.O. adjudication was based entirely upon convictions

permitting restoration under Code § 46.2-361.

This approach also finds support in a 1985 opinion issued by

the Attorney General. See 1984-85 Va. Att'y Gen. Rep. 212. That

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opinion interpreted an earlier version of Code § 46.2-361, Code

§ 46.1-387.9:3, which permitted a habitual offender to petition

for restoration of his license after five years but only where at

least one of the predicate convictions resulted from violation of

an order of suspension for failure to pay a fine. 2 Petitioner

asserted that his third conviction was for the offense of driving

while his license was suspended for failure to pay a fine. Rep.

at 212. The Attorney General noted, however, that at the time of

petitioner's third conviction, his license was under suspension

"for two separate and independent reasons, each of which,

standing alone, had resulted in suspension." Id. One of these

suspensions was for failure to pay a fine, and the other was for

failure to pay a judgment. Id. The Attorney General noted that

petitioner bore the burden of proof and that, because of the dual

suspensions, only one of which qualified for early restoration,

2

The version of Code § 46.1-387.9:3 applicable to the facts

upon which the Attorney General issued an opinion provided:

Any person who has been found to be an

habitual offender, where such adjudication

was based in part and dependent upon a

conviction as set out in § 46.1-387.2(a)(4),

may, after the expiration of five years from

the date of such adjudication, petition [a

specified court] . . . for restoration of his

privilege to operate a motor vehicle in this

Commonwealth. However, this section shall

apply only where the conviction set out in

§ 46.1-387.2(a)(4) resulted from a suspension

or revocation ordered pursuant to

§ 46.1-423.3 for failure to pay fines and

costs.

1984 Va. Acts, ch. 660.

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"it could not be said that the third conviction was for the

offense of driving while the license was suspended merely for

failure to pay a fine." Id. at 213.

After the Attorney General issued this opinion, the

legislature expanded the scope of Code § 46.1-387.9:3 also to

permit a habitual offender to petition for early restoration of

his or her license where at least one of the predicate

convictions involved failure to pay a judgment, see 1987 Va.

Acts, ch. 334, or failure to furnish proof of financial

responsibility, see 1985 Va. Acts, ch. 292. However, neither of

these amendments nor any subsequent amendments to this code

section resulted in abrogation of the underlying principle in the

Attorney General's opinion that conviction during a period of

suspension on both a qualifying and a non-qualifying basis is

insufficient to permit early restoration. See 1989 Va. Acts, ch.

727 (recodifying § 46.1-387.9:3 at § 46.2-361); 1992 Va. Acts,

ch. 568; 1993 Va. Acts, chs. 291, 518, 687; 1995 Va. Acts, ch.

799.

"The legislature is presumed to have had knowledge of the

Attorney General's interpretation of the statute[], and its

failure to make corrective amendments evinces legislative

acquiescence in the Attorney General's view." Deal v.

Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983).

Therefore, "we conclude that the General Assembly approves [the

relevant portion of] the Attorney General's construction."

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Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161, 300

S.E.2d 603, 605 (1983). Under the facts of this case, Brown is

not eligible for restoration under Code § 46.2-361 because, at

the time of each of his convictions, he was under two suspensions

for offenses other than failure to pay fines or costs, failure to

furnish proof of financial responsibility or failure to satisfy a

judgment.

Furthermore, we find no other statutory basis supporting the

trial court's restoration of Brown's license. The trial court

appears to have based its decision to restore Brown's license in

part on its belief that the validity of Brown's conviction for

driving on a revoked or suspended license on November 22, 1995

was suspect because no license suspension was imposed. Assuming

without deciding that the court's conviction of Brown for

violating Code § 46.2-301 required the court to suspend his

license, the court's failure to do so rendered the H.O.

determination--based in part on the suspect conviction--voidable

only and, therefore, not subject to collateral attack. Where a

habitual offender adjudication rests upon valid subject matter

and personal jurisdiction and is not appealed, that adjudication

becomes final and neither the adjudication nor the underlying

convictions can be collaterally attacked. See Eagleston v.

Commonwealth, 18 Va. App. 469, 471-72, 445 S.E.2d 161, 163 (1994)

(in proceeding against accused for driving after being declared a

habitual offender, rejecting collateral attack on validity of

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habitual offender adjudication which rested in part on predicate

conviction rendered under ordinance later declared invalid in

unrelated proceeding). Therefore, even assuming a defect existed

in the first predicate conviction supporting Brown's H.O.

determination, no evidence indicates that Brown challenged the

H.O. declaration on direct appeal or that the court rendering the

H.O. determination lacked subject matter or personal

jurisdiction. Therefore, the trial court lacked authority to

revisit the validity of the underlying H.O. determination in the

restoration proceedings.

The evidence proved affirmatively that Brown did not meet

the requirements for restoration of his driving privileges under

Code § 46.2-361, and the trial court was without jurisdiction to

revisit the validity of the H.O. determination. Therefore, we

hold that the trial court erred in granting Brown's petition for

restoration of his driver's license.

Reversed.

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