Commonwealth of Virginia, DMV v. Arthles H. Lynn

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Overton *
Argued at Norfolk, Virginia

COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MOTOR VEHICLES
OPINION BY
v. Record No. 0427-98-1 JUDGE JAMES W. BENTON, JR.
FEBRUARY 2, 1999
ARTHLES HASKER LYNN

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
S. Bernard Goodwyn, Judge
Eric K. G. Fiske, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.

No brief or argument for appellee.

The issue presented in this appeal is whether the trial

judge possessed authority pursuant to Code § 46.2-361(B) to order

the restoration of a driver's license to Arthles Hasker Lynn, an

habitual offender. Because several convictions which led to the

habitual offender determination were based, in part, on

suspensions not specified in Code § 46.2-361(C), we hold that the

trial judge lacked authority to order the restoration of Lynn's

driver's license.

I.

Acting pursuant to the authority granted in Code § 46.2-352,

the Commissioner of the Department of Motor Vehicles reviewed the
*
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.
Department's records and determined on May 23, 1997 that Arthles

Hasker Lynn qualified as an habitual offender. The Commissioner

notified Lynn that the Department had determined Lynn to be an

habitual offender, that the Department had revoked Lynn's

driver's license, and that to regain his driver's license Lynn

was required to file a petition in the appropriate circuit court.

In his letter to Lynn, the Commissioner also informed Lynn of

the three convictions that supported the habitual offender

determination. See Code § 46.2-351(1)(c).

Six months after the Commissioner determined that Lynn was

an habitual offender, Lynn filed a petition in the circuit court

for the restoration of his driving privileges. His petition, a

pre-prepared form, referred to Code § 46.2-361(A) and alleged

that Lynn had "been determined to be an habitual offender based

in part and dependent upon convictions of driving while [his]

license or privilege to drive was suspended or revoked . . . for

failure to pay fines and costs." In its response to Lynn's

petition, the Department asserted that Lynn could not petition

for restoration under Code § 46.2-361(A) until three years from

the date of his habitual offender determination. The Department

also asserted that even though Lynn was not seeking restoration

under Code § 46.2-361(B), Lynn was not eligible under that

provision because all the convictions did not result from

suspensions ordered pursuant to (1) Code § 46.2-395, for failure

to pay fines or costs; (2) Code § 46.2-459, for failure to

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furnish proof of financial responsibility; or (3) Code

§ 46.2-417, for failure to satisfy a judgment. See Code

§ 46.2-361(C).

The evidence at trial established that on May 6, 1997, a

judge of the General District Court of the City of Norfolk

convicted Lynn of driving on March 12, 1997, while his driver's

license had been suspended. Lynn was also convicted in the

General District Court of Southampton County on January 21, 1997,

and in the General District Court of the City of Chesapeake on

October 21, 1996, on charges of driving while his driver's

license had been suspended. See Code § 46.2-301.

The record further established that when Lynn was stopped on

March 12, 1997, and charged with driving while his license was

suspended (the charge that led to the conviction in Norfolk on

May 6, 1997), the following suspension orders were then in

effect:
1. suspension issued February 7, 1997, for
violation of probation under Code § 46.2-499
of the Driver Improvement Program;

2. suspension issued February 7, 1997, for a
conviction of driving while Lynn's license
was suspended (see Southampton conviction on
January 21, 1997 for driving while a prior
suspension order was in effect);

3. suspension issued November 7, 1996, for
violation of probation under Code § 46.2-499
of the Driver Improvement Program;

4. suspension issued November 7, 1996, for
failure to pay fines imposed upon convictions
in Chesapeake for driving while his license
was suspended and for speeding;

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 5. suspension issued October 10, 1996, for
failure to pay fines and costs imposed upon
convictions in Chesapeake for speeding,
safety belt violation, and no driver's
license; and

6. suspension issued July 1, 1996, for
failure to pay fines and costs imposed upon
conviction in Chesapeake for speeding.

After consideration of this evidence, the trial judge

granted Lynn's petition and awarded Lynn restricted driving

privileges to drive to and from work. The final order contained

findings that (1) Lynn "was determined to be an habitual offender

based on convictions set out in [Code § 46.2-351(1)(c)]," (2) "at

least one of the convictions considered by the [Department] in

determining [Lynn] to be an habitual offender resulted from a

suspension or revocation ordered pursuant to [Code §] 46.2-395

for failure to pay fines and costs," (3) Lynn "has paid in full

all outstanding fines, costs and judgments relating to his

determinations as an habitual offender," and (4) Lynn "does not

constitute a threat to the safety and welfare of himself and

others with respect to the operation of a motor vehicle." The

Department appeals from that order.
II.

Lynn's petition for restoration of his driver's license

indicated that it was filed pursuant to Code § 46.2-361(A). That

part of the statute provides that an habitual offender whose

status "was based in part and dependent on a conviction as set

out in subdivision 1 c of [Code] § 46.2-351, may, after three

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years from the date of the . . . notice of determination . . . by

the Commissioner, petition . . . the circuit court . . . for

restoration of his privilege to drive a motor vehicle." Code

§ 46.2-361(A). Lynn was not eligible for restoration under that

section because his petition was filed after the passage of only

six months from the Commissioner's notice of the determination

that Lynn was an habitual offender. The trial judge ruled,

instead, under Code § 46.2-361(B).
Code § 46.2-361(B) provides as follows:
Any person who has been found to be an
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 the court in which he
was found to be an habitual offender, or the
circuit court in the political subdivision in
which he then resides, for restoration of his
privilege to drive a motor vehicle in the
Commonwealth.

(Emphasis added). The relief provided in that part of the

statute is further limited by the following provision of the

statute:
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 the judgment has been paid in full
prior to the time of filing the petition or
was a conviction under § 46.2-302 or former
§ 46.1-351.

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Code § 46.2-361(C).

The effect of Code § 46.2-361(B) and (C) and, thus, the

resolution of the issue presented by this appeal are controlled

by our recent decision in Commonwealth v. Brown, ___ Va. App.

___, ___ S.E.2d ___ (1999). Interpreting Code § 46.2-361(B), a

panel of this Court ruled in Brown that "[u]nder [the language

of] the statute, if any one of [the] predicate convictions did

not meet the requirements of subsection (C), [the petitioner] was

not entitled to restoration of his driver's license." ___ Va.

App. at ___, ___ S.E.2d at ___. See also Loflin v. Commonwealth,

27 Va. App. 626, 630-31, 500 S.E.2d 826, 828 (1998) (noting that

the requirements of sections (C) and (D) of the statute must be

satisfied before driving privileges may be restored under section

(B)).

The record clearly establishes that when Lynn was convicted

in Norfolk on May 6, 1997, of driving while his driver's license

had been suspended, six different suspension orders were in

effect. In Brown, we held "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, [the conviction] is rendered under all such

suspensions and revocations." Id. at ___, ___ S.E.2d at ___. We

noted that "[a]lthough only a single conviction results from the

act of driving, the statutory scheme does not permit a [judge] to

choose a particular suspension or revocation upon which to base a

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conviction." Id.

Of the six suspensions in effect when Lynn was convicted on

May 6, 1997, only three were for Lynn's failure to pay fines and

costs. The remaining suspension orders were issued for reasons

not covered by Code § 46.2-361(C). Two of the suspensions were

the result of violations of probation under the Driver

Improvement Program, see Code § 46.2-499, and the other was based

on Lynn's conviction for driving while his driver's license had

been suspended. See Code § 46.2-301(B) and (C).

Thus, the evidence proved that the Commissioner's

determination that Lynn was an habitual offender "was based

entirely upon convictions as set out in subdivision 1 c of [Code]

§ 46.2-351." Code § 46.2-361(B). However, the evidence also

proved that Lynn's conviction in the General District Court of

the City of Norfolk was based in part on suspensions not

specified in Code § 46.2-361(C).

For these reasons, we hold that the trial judge erred in

restoring Lynn's driver's license under Code § 46.2-361(B), and

we reverse the order.
Reversed.

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