Present: Carrico, C.J., Compton, Stephenson, Hassell, and Keenan,
JJ., Poff, Senior Justice, and Cochran, Retired Justice
JOSEPH M. SIMMONS
OPINION BY
v. Record No. 951916 CHIEF JUSTICE HARRY L. CARRICO
September 13, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Rudolph Bumgardner, III, Judge
This appeal presents the question whether the trial court
erred in holding that neither res judicata nor collateral estoppel 1
bars a court from suspending a person's operator's license for one
year for his refusal to take a blood or breath alcohol test when
he has already suffered a seven-day administrative suspension for
2
the same refusal. Finding that the trial court did not err, we
will affirm.
The seven-day administrative suspension was made pursuant to
Code § 46.2-391.2, which provides in pertinent part that if a
person refuses to submit to a breath test in violation of Code
§ 18.2-268.3, his license shall be suspended immediately for seven
days. Section 18.2-268.3, referred to in § 46.2-391.2, prescribes
the procedures to be followed if a person, after having been
arrested for driving under the influence, refuses to permit blood
or breath samples to be taken for chemical tests to determine the
1
The defendant in this case uses the term "estoppel by
judgment"; however, we prefer the term "collateral estoppel."
Bates v. Devers, 214 Va. 667, 671 n.5, 202 S.E.2d 917, 921 n.5
(1974).
2
Because a charge of unreasonably refusing to submit to a
blood or breath test is not criminal but administrative and civil
in nature, an appeal lies directly from the trial court to this
Court. Commonwealth v. Rafferty, 241 Va. 319, 323-24, 402 S.E.2d
17, 20 (1991).
alcohol or drug content of his blood. Section 18.2-268.4 provides
that if a person is found guilty of violating § 18.2-268.3, the
court shall suspend his privilege to drive for a period of one
year, in addition to the administrative suspension imposed under
§ 46.2-391.2.
The record shows that on February 16, 1995, the defendant,
Joseph M. Simmons, upon his refusal to submit to a blood or breath
test, was served with a notice of administrative suspension
pursuant to § 46.2-391.2, and his license was "taken" for a period
of seven days. He was also charged in a warrant with refusing to
permit the taking of a breath sample to determine the alcohol
content of his blood. In general district court, the defendant
was found guilty as charged in the warrant, and his operator's
license was suspended for a period of one year. On a de novo
appeal to circuit court, he was again found guilty, and his
license was again suspended for a period of one year.
Citing Wright v. Wright, 164 Va. 245, 252, 178 S.E. 884, 886
(1935), the defendant correctly points out that for res judicata
to bar the prosecution of a second action, the judgment in the
former action must have been rendered on the merits by a court of
competent jurisdiction and the parties and the matters in
controversy must be the same in the two actions. The defendant
also correctly points out that the plea of res judicata and the
plea of collateral estoppel, while not identical, "are based upon
similar principles of law, namely the conclusiveness of judgments
of the Court, and the effect of a judgment as estoppel." The
difference between the two pleas, the defendant notes, lies in
what is concluded by the first judgment. Under res judicata, the
first judgment bars the parties and their privies not only from
relitigating the issues actually determined but also from
litigating those that might have been determined; under collateral
estoppel, only those issues actually litigated and determined are
concluded. Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,
920-21 (1974).
Here, the defendant argues that "the issue is the same,
namely that the defendant refused to take the breath or blood
test." That issue, the defendant opines, "has already been
decided by a Court of competent jurisdiction" in the form of the
administrative suspension of his license for seven days.
Therefore, the defendant concludes, the administrative suspension
"is res judicata and estoppel and the Commonwealth should be
estopped from taking a person's Operator's License for twelve
months for refusing to take a breath or blood test after having
taken the Operator's License administratively for seven days for
the same act."
The difficulty with the defendant's argument is that by his
own statement of the doctrines of res judicata and collateral
estoppel, the establishment of a prior judgment rendered by a
court of competent jurisdiction is a condition precedent to the
allowance of any plea in bar asserting either doctrine. Yet, by
no stretch of the imagination can it be said that an
administrative suspension of an operator's license for failure to
take a blood or breath test is a judgment rendered by a court of
competent jurisdiction. What is involved is neither more nor less
than the term administrative suspension implies, an administrative
act, not a judgment by a court of competent jurisdiction.
Accordingly, we hold that the suspension by the trial court
of the defendant's operator's license for one year was not barred
by the earlier administrative suspension of the license for seven
days, and we will affirm the judgment of the trial court.
Affirmed.