COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MOTOR VEHICLES
OPINION BY
v. Record No. 0195-98-1 JUDGE RICHARD S. BRAY
MARCH 2, 1999
KEITH WALLACE
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Joseph M. DuRant (Cumming, Hatchett & Jordan,
on brief), for appellee.
Keith Wallace (Wallace) was administratively declared an
habitual offender by the Commissioner (Commissioner) of the
Department of Motor Vehicles (DMV) in accordance with Code
§ 46.2-352(A), and his privilege to operate motor vehicles was
revoked by attendant order. Upon notification of the order,
Wallace petitioned the trial court pursuant to Code
§ 46.2-352(B), seeking a "judicial hearing and determination
. . . that [he] is not an habitual offender."
Following an ore tenus hearing, the court found that one
among the three predicate convictions necessary to Wallace's
∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
habitual offender determination "arose out of a suspension for
nonpayment of costs and fines" and that "payment had been made."
Relying upon Code § 46.2-355(iii), the court concluded that
Wallace was "not an habitual offender" and restored his
privileges. DMV appeals, arguing that Code § 46.2-355(iii)
permits such relief only when "all of the convictions . . . used
as 'qualifying offenses' to determine the individual an habitual
offender" are exempted from consideration by the statute. We
agree and reverse the disputed order of the trial court.
It is uncontroverted that Wallace had previously been
convicted of three separate offenses which, together, facially
identified him as an habitual offender in accordance with Code
§ 46.2-351. 1 As a result, Code § 46.2-352 directed the
Commissioner to "cause the [DMV] records to indicate that
[Wallace had] been determined to be an habitual offender and
________________
1
In pertinent part, Code § 46.2-351 defines an habitual
offender as
any resident or nonresident person whose
record . . . shows that he has accumulated
. . . convictions . . . for separate
offenses, committed within a ten-year period,
. . . as follows:
1. Three or more convictions, . . .
singularly or in combination of the following
separate offenses arising out of separate
acts:
* * * * * * *
c. Driving a motor vehicle while his
license, permit, or privilege to drive . . .
has been suspended or revoked . . . .
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. . . revoke [his] driver's license for the period of time
specified in § 46.2-356." Code § 46.2-352(A). In further
compliance with the statute, the Commissioner was required to
"immediately notify [Wallace] of the revocation and of his right
to file a petition and request a hearing" before "the circuit
court . . . for . . . determination by the court that [Wallace]
is not an habitual offender." Code § 46.2-352.
Wallace elected to pursue judicial review and initiated the
instant proceeding by petition in the trial court. Evidence at
the related hearing disclosed a conviction in the New Kent County
General District Court for "Driving Under Revocation Or
Suspension," a violation of Code § 46.2-395, as one of the three
offenses indispensable to the Commissioner's determination that
Wallace was an habitual offender. See Code § 46.2-351(1)(c).
The evidence further established that the New Kent County
conviction was "based on a suspension that occurred for failing
to pay fines and costs, . . . now paid."
Relying upon Code § 46.2-355(iii), 2 Wallace argued before
the trial court that a person is not an habitual offender if one
2
Code § 46.2-355 provides, in pertinent part, that
[i]f . . . the court finds that the person
. . . (iii) has qualifying offenses based
solely upon convictions as set out in
subdivision 1 c of § 46.2-351 resulting from
a suspension or revocation ordered pursuant
to § 46.2-395 for failure to pay fines and
costs . . . and has paid in full all
outstanding fines, costs and judgments, . . .
relating to such convictions, the court shall
enter an order finding that the person is not
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of the "qualifying offenses" specified by Code § 46.2-351(1)(c)
was predicated upon a conviction which arose from a suspension or
revocation exempted by statute. The trial court agreed, finding
Code § 46.2-355(iii) "ambiguous as to whether [it] applied to all
qualifying offenses or any one of the qualifying offenses," and
restored Wallace's privilege to drive as a result of the single
New Kent County conviction. On appeal, DMV asserts that Code
§ 46.2-355(iii) clearly provides relief from an habitual offender
determination only when all "qualifying offenses" were
convictions dependent upon those suspensions or revocations
specifically embraced by the statute.
Assuming, without deciding, that Code § 46.2-355(iii) is
ambiguous, the basic tenets of statutory construction require us
to "ascertain and give effect to legislative intent." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)
(citations omitted). A statute must be construed "to give
reasonable effect to the words used" and to further its remedial
purposes. Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458
S.E.2d 305, 307 (1995) (citation omitted). Proper construction
seeks to harmonize the provisions of a statute both internally,
see Mejia v. Commonwealth, 23 Va. App. 173, 176-77, 474 S.E.2d
866, 868 (1996) (en banc), and in relation to other statutes.
________________
an habitual offender and, unless otherwise
prohibited, restoring his privilege to drive.
(Emphasis added).
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See Newton v. Commonwealth, 21 Va. App. 86, 90, 462 S.E.2d 117,
119 (1995).
We recognize that, "[a]lthough [an habitual offender
determination] is a civil proceeding, its effect is to impose a
forfeiture . . . [and,] [t]herefore, the operative statute must
be strictly construed against the Commonwealth." Hoye v.
Commonwealth, 12 Va. App. 587, 589, 405 S.E.2d 628, 629 (1991).
However, strict construction cannot thwart clear legislative
intent or justify an absurd result. See Gwaltney v.
Commonwealth, 19 Va. App. 468, 475, 452 S.E.2d 687, 691 (1995).
The words chosen by the legislature in drafting a statute
derive meaning from both definition and context and, therefore,
we divine legislative intent by construing an enactment as a
whole, together with companion statutes, if any. The legal
maxim, noscitur a sociis, instructs that "a word takes color and
expression from the purport of the entire phrase of which it is a
part, and . . . must be read in harmony with its context."
Turner v. Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337, 339
(1983). Similarly, legislative purpose can best be "'ascertained
from the act itself when read in the light of other statutes
relating to the same subject matter.'" Moreno v. Moreno, 24 Va.
App. 190, 197, 480 S.E.2d 792, 796 (1997) (citation omitted).
The doctrine of pari materia teaches that "'statutes are not to
be considered as isolated fragments of law, but as a whole, or as
parts of a great, connected homogenous system, or a simple and
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complete statutory arrangement.'" Id. at 198, 480 S.E.2d at 796
(citation omitted).
Code § 46.2-355 is an integral component to a legislative
scheme intended
to provide maximum safety for all persons
using the highways; to deny the privilege of
operating motor vehicles to persons who by
their record have demonstrated their
indifference to the safety of others and
their disrespect for the laws of the state
and the orders of its courts; to discourage
repetition of criminal acts by individuals;
and to impose increased and added deprivation
of the privilege to operate motor vehicles
upon habitual offenders who have been
convicted repeatedly of violations of traffic
laws.
Whorley v. Commonwealth, 215 Va. 740, 745-46, 214 S.E.2d 447, 451
(1975). Code § 46.2-351 identifies those convictions arising
from unlawful conduct deemed inconsistent with this legislative
purpose. Thus, Code § 46.2-355 is properly read only when
juxtaposed with Code § 46.2-351 and companion enactments.
Accordingly, the parties acknowledge that the "qualifying
offenses" contemplated by Code § 46.2-355(iii) are those
violations specified in Code § 46.2-351 which define the putative
habitual offender then before the court. By describing such
"qualifying offenses" plurally, the legislature clearly intended
to include all predicate offenses which brought the person within
the purview of Code § 46.2-351. In this context, we consider the
entire statutory phrase, "has qualifying offenses based solely
upon convictions as set out in subdivision 1 c of § 46.2-351
resulting from a suspension or revocation ordered pursuant to
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§ 46.2-395 for failure to pay fines and costs . . . ." Code
§ 46.2-355(iii) (emphasis added). Thus, properly construed, the
statute provides that no person may be declared an habitual
offender when all "qualifying offenses" resulted from convictions
specified in Code § 46.2-351(1)(c), provided the underlying
suspension or revocation in each instance resulted from
nonpayment of fines and costs, now fully satisfied. 3
This construction of Code § 46.2-355(iii) is made more
apparent by Code § 46.2-361(B), a companion statute which
provides that "[a]ny person who has been found to be an habitual
offender . . . based entirely upon convictions as set out in
[Code § 46.2-351(1)(c)], may, after payment in full of all
outstanding fines [and] costs relating to his determination,
. . . petition the court" for restoration of privileges. Code
§ 46.2-361(B) (emphasis added). In contrast, "[a]ny person who
has been found . . . an habitual offender . . . based in part and
dependent on a conviction as set out in [Code § 46.2-351(1)(c)]"
may not petition for restoration for three years from the final
order. Code § 46.2-361(A) (emphasis added); see Commonwealth v.
Lynn, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1999);
Commonwealth v. Brown, 28 Va. App. 781, 787, 508 S.E.2d 916, 919
(1999). Thus, consonant with Code § 46.2-355(iii), Code
§ 46.2-361(B) provides a procedure to immediately restore the
3
"[F]ailure to furnish proof of financial responsibility,"
additional conduct embraced by Code § 46.2-355(iii), is not in
issue.
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privileges of any person already declared an habitual offender
whenever all "qualifying convictions" resulted from a failure to
pay fines and costs and such obligations are subsequently paid
and satisfied. 4
The trial court, therefore, erroneously determined that
Wallace, a person with only one "qualifying offense" contemplated
by Code § 46.2-355(iii), was not an habitual offender.
Accordingly, we reverse the order and remand the proceedings to
the trial court for disposition consistent with this opinion.
Reversed and remanded.
4
Under Wallace's construction of Code § 46.2-355(iii), Code
§ 46.2-361(A) would require a person wrongfully determined an
habitual offender to wait three years for restoration, an absurd
result.
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