COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia
GREGORY SCOTT NICELY
v. Record No. 1332-95-3
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE JOHANNA L. FITZPATRICK
ANTONIA SCOTT VIA OCTOBER 22, 1996
v. Record No. 1334-95-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
Dabney L. Pasco (Jeanne M. Hepler; Pasco &
Dascher, P.C., on briefs), for appellants.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on briefs), for appellee.
Gregory Scott Nicely and Antonia Scott Via (appellants) were
arrested for driving while intoxicated in violation of Code
§ 18.2-266, and their driver's licenses were suspended for seven
days pursuant to Code § 46.2-391.2. The dispositive issue in
both cases is whether the trial court erred in finding that it
had no jurisdiction to consider an appeal of the seven-day
suspension of each appellant's driver's license under Code
§ 46.2-391.2. 1 Finding no error, we affirm.
1
The Commonwealth argues that these cases should be transferred
to the Supreme Court of Virginia for resolution because this Court
has limited jurisdiction over civil appeals. However, in a case
similar to the instant case, the Virginia Supreme Court recently
held that "because a charge of unreasonably refusing to submit to
a blood or breath test is not criminal but administrative and
Both appellants were arrested for driving while intoxicated
in violation of Code § 18.2-266, Nicely on May 17, 1995 and Via
on June 2, 1995. Each appellant's driver's license was suspended
for seven days pursuant to Code § 46.2-391.2. Both requested the
general district court to review the license suspension and to
issue a witness subpoena for the arresting officer. The general
district court granted the Commonwealth's motion to quash the
subpoena for the arresting officer and affirmed the suspension of
each appellant's license. Appellants then appealed to the
circuit court and moved to dismiss the underlying driving while
intoxicated charges.
The circuit court found that it had no jurisdiction to
consider either appellant's appeal or motion to dismiss.
Appellants argued that the general district court's affirmance of
the seven-day suspension of their drivers' licenses pursuant to
Code § 46.2-391.2 constituted a final, appealable decision. The
circuit court determined that no criminal appellate jurisdiction
existed under Code § 16.1-132 because "none of the appeal
civil in nature, an appeal lies directly to [the Virginia Supreme
Court]." Brame v. Commonwealth, Record No. 952340, slip op. at 3
(Va. September 13, 1996) (emphasis added). The rationale of Brame
is that the underlying charge controls the appeal. In Brame, the
underlying charge was civil. In the instant case, the underlying
charge is criminal and falls under Code § 18.2-266. See Code
§ 17-116.05:1(A) ("Any aggrieved party may present a petition for
appeal to the Court of Appeals from (i) any final conviction in a
circuit court of a traffic infraction or a crime, except where a
sentence of death has been imposed").
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predicates for appeal [were] present." Additionally, the circuit
court found that no civil appellate jurisdiction existed under
Code § 16.1-106 because the general district court's order was
interlocutory in nature and thus not appealable. The court
dismissed both appeals without prejudice and remanded the cases
to the general district court.
Code § 46.2-391.2(A) requires the automatic seven-day
suspension of the driver's license of any person arrested for
driving while intoxicated if the driver fails a breath test
administered pursuant to Code § 18.2-268.2, or any person who
refuses to take a breath test as required by Code § 18.2-268.3.
"[W]hen the driver either fails the breath test or refuses to
take it, he or she is taken before a magistrate and a warrant is
issued for the driver's arrest. Upon issuance of the warrant,
the magistrate automatically suspends the accused's driving
privilege [for seven days] pursuant to Code § 46.2-391.2." Tench
v. Commonwealth, 21 Va. App. 200, 203, 462 S.E.2d 922, 923 (1995)
(en banc). "Any person whose license or privilege to operate a
motor vehicle has been suspended . . . may, during the period of
the suspension, request the general district court of the
jurisdiction in which the arrest was made to review that
suspension." Code § 46.2-391.2(C) (emphasis added).
In Tench, we characterized the automatic seven-day
suspension of a driver's license under Code § 46.2-391.2 as a
"civil license suspension." Id. at 204, 462 S.E.2d at 923. In
3
determining whether the automatic license suspension violated the
double jeopardy clause, we held that an "automatic license
suspension under Code § 46.2-391.2 is a remedial sanction because
its purpose is to protect the public from intoxicated drivers and
to reduce alcohol-related accidents. Therefore, the sanction of
license suspension does not constitute punishment for purposes of
double jeopardy." Id. at 205-06, 462 S.E.2d at 924 (footnote
omitted).
The Supreme Court recently put to rest any remaining
question on the issues of double jeopardy, collateral estoppel,
res judicata, and estoppel by judgment in the context of the
administrative suspension of a driver's license pursuant to Code
§ 46.2-391.2. See Brame v. Commonwealth, Record No. 952340 (Va.
September 13, 1996) and Simmons v. Commonwealth, Record No.
951916 (Va. September 13, 1996). In Brame, the Court held that
"the remedial purpose of Virginia's seven-day administrative
suspension provision is so clear and compelling that it overrides
any incidental punitive effect the provision may have."
Therefore, even where the Court assumed "without deciding that
Brame's two sanctions resulted from the same incident and that
the subsequent sanction was imposed in a separate proceeding
. . . [defendant's] rights under the Double Jeopardy Clause were
not violated by the subsequent judicial suspension of his license
for one year." Brame v. Commonwealth, Record No. 952340, slip
op. 4, 13 (Va. September 13, 1996). Additionally, the Supreme
4
Court of Virginia has recognized that the suspension or
revocation of a license is not "an added punishment for the
offense committed. It is civil and not criminal in nature."
Prichard v. Battle, 178 Va. 455, 462, 17 S.E.2d 393, 395 (1941).
"'A primary rule of statutory construction is that courts
must first look to the language of the statute. If a statute is
clear and unambiguous, a court will give the statute its plain
meaning.'" Tross v. Commonwealth, 21 Va. App. 362, 377-78, 464
S.E.2d 523, 530 (1995) (quoting Loudoun County Dep't of Social
Servs. v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993)).
Code § 46.2-391.2 provides that, during the period of suspension,
the general district court may review the administrative
suspension of a driver's license. However, Code § 46.2-391.2
does not provide a further right of review in the circuit court.
To resolve whether a driver may appeal that suspension beyond
the general district court, we must decide whether the
administrative suspension of a driver's license pursuant to Code
§ 46.2-391.2 is a final adjudication subject to appeal in the
2
circuit court.
2
Code § 46.2-391.2(C) provides, in relevant part, that "[t]he
court's findings are without prejudice to the person contesting
the suspension or to any other potential party as to any
proceedings, civil or criminal, and shall not be evidence in any
proceedings, civil or criminal." An administrative license
suspension pursuant to Code § 46.2-391.2 may occur as part of a
civil refusal case under Code § 18.2-268.3, or in a criminal
driving while intoxicated case under Code § 18.2-266. If a driver
has his license suspended for refusing to submit to a breath test
in violation of Code § 18.2-268.3, the nature of the underlying
proceeding is civil, and the Supreme Court of Virginia has
jurisdiction over any appeal.
5
"A final order is one that disposes of the whole subject,
gives all the relief contemplated, and leaves nothing to be done
in the cause save to superintend ministerially compliance with
the order." Alexander v. Commonwealth, 19 Va. App. 538, 540, 452
S.E.2d 370, 371 (1995). When a driver's license is suspended
pursuant to Code § 46.2-391.2, the suspension is a temporary
sanction "to protect the public from [an] intoxicated driver[]
and to reduce alcohol-related accidents." Tench, 21 Va. App. at
205, 462 S.E.2d at 924. A driver whose license is suspended
under Code § 46.2-391.2 must still face trial on the underlying
criminal charges and any punishment upon conviction. The
administrative suspension of a driver's license for failing a
breath test or refusing to take one is not a final adjudication
of criminal charges, but merely an administrative civil sanction
designed to remove the driver from the highways of this state.
It is subject only to the administrative review allowed by Code
§ 46.2-391.2 to the general district court. Thus, the circuit
court in these cases properly found that it did not have
jurisdiction to review the seven-day suspension of appellants'
3
licenses.
The Supreme Court's decision in Simmons v. Commonwealth
controls the instant case. The Court declared that "by no
3
Because we hold that the administrative suspension proceeding
is part of the underlying criminal charge, any driver who has his
or her license suspended under Code § 46.2-391.2 has no right to
appeal that determination until after a final adjudication of the
criminal charges.
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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." Simmons v.
Commonwealth, Record No. 951916, slip op. 4 (Va. September 13,
1996). It necessarily follows that the general district court's
affirmance of the administrative suspension is not a judgment of
the general district court.
Additionally, Code §§ 16.1-106 and 16.1-132 set forth the
relevant appellate jurisdiction of the circuit courts. Code
§ 16.1-106 provides the civil appellate jurisdiction of the
circuit courts as follows:
From any order entered or judgment
rendered in a court not of record in a civil
case in which the matter in controversy is of
greater value than fifty dollars, exclusive
of interest, any attorney's fees contracted
for in the instrument, and costs, or when the
case involves the constitutionality or
validity of a statute of the Commonwealth, or
of an ordinance or bylaw of a municipal
corporation, or of the enforcement of rights
and privileges conferred by the Virginia
Freedom of Information Act (§ 2.1-340 et
seq.), there shall be an appeal of right, if
taken within ten days after such order or
judgment, to a court of record. Such appeal
shall be to a court of record having
jurisdiction within the territory of the
court from which the appeal is taken.
Under this provision, appellants do not have a right to appeal to
the circuit court because an administrative license suspension
7
under Code § 46.2-391.2 does not involve a monetary controversy,
or a statute's validity or constitutionality. Code § 16.1-132
defines the criminal appellate jurisdiction of the circuit courts
as follows:
Any person convicted in a district court
of an offense not felonious shall have the
right, at any time within ten days from such
conviction, and whether or not such
conviction was upon a plea of guilty, to
appeal to the circuit court. There shall
also be an appeal of right from any order or
judgment of a district court forfeiting any
recognizance or revoking any suspension of
sentence.
Under this section, appellants also do not have the right to
appeal their administrative license suspensions because: (1) at
the time of their appeal, neither appellant had been "convicted"
of a misdemeanor, and (2) neither case involved the forfeiture of
recognizance or revocation of a suspended sentence. Thus, the
circuit courts have no appellate jurisdiction over a general
district court's review of an administrative license suspension
pursuant to Code § 46.2-391.2.
Accordingly, because neither appellant had a right to appeal
the administrative suspension of his or her driver's license to
the circuit court, the cases are dismissed. The circuit court's
orders are affirmed.
Affirmed.
8