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
1
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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