COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Willis and Senior Judge Hodges
Argued at Salem, Virginia
DONALD E. WILLIAMS,
COMMISSIONER OF THE DEPARTMENT
OF MOTOR VEHICLES OF THE
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE JERE M. H. WILLIS, JR.
v. Record No. 0820-94-3 JULY 5, 1995
COOPER BAILEY TERRY
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Eric K. G. Fiske, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
briefs), for appellant.
Ebb H. Williams, III (Ebb H. Williams, III,
P.C., on brief), for appellee.
By Order of Revocation and Suspension dated September 8,
1993, the Department of Motor Vehicles revoked Cooper Bailey
Terry's motor vehicle operator's license on the basis of his July
20, 1993 conviction in South Carolina of "driving while intox,
1st." The order cited as "statutory authority" Code §§ 46.2-389
and 46.2-434, upon which statutes this case focuses. Terry filed
in the trial court a Bill of Complaint for Injunction, praying
that the Commissioner of the Department of Motor Vehicles (the
Commissioner) be enjoined from issuing the Order of Revocation
and Suspension. The trial court ruled that Code § 46.2-389
governed the case and that Terry's South Carolina conviction did
not bring him within the operation of that statute. It decreed
that the Order of Revocation and Suspension be reversed and
vacated and that the Commissioner should remove the September 8,
1993 revocation from Terry's driving record.
On appeal, the Commissioner contends (1) that the trial
court applied the wrong statute in constructing its comparative
analysis of the Virginia and South Carolina driving while
intoxicated statutes, and (2) that the trial court erred in
concluding that the South Carolina statute did not substantially
parallel and conform to the Virginia statute. We conclude that
Code § 46.2-434, not § 46.2-389, controls the case. Therefore,
we reverse the judgment of the trial court and remand the case
for retrial under the provisions of Code § 46.2-434.
On July 2, 1993, Terry was arrested in Marlboro County,
South Carolina and charged with "D.U.I. 1st." The uniform
traffic ticket referenced South Carolina Code § 56-5-1520, but
the parties agree that the correct reference was § 56-5-2930,
which makes it "unlawful for narcotic users or persons under
influence of liquor, drugs or like substances, to drive." The
traffic ticket noted "B.A. level 0-15." The lower left quadrant
of the ticket contains blanks to be filled and blocks to be
checked indicating proceedings and disposition at trial. The
relevant completed portions of this section state that trial was
held July 20, 1993; Terry did not appear; he forfeited his bond;
and a fine of $298.25 was imposed. No plea is noted. No
disposition is set forth. No offense is stated as to which any
presumed disposition might apply.
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Code § 46.2-389 provides, in pertinent part:
The Commissioner shall forthwith revoke . . . the
driver's license of any resident or nonresident on
receiving a record of his conviction . . . of any
of the following crimes, committed in violation of
a state law or a valid county, city or town
ordinance or law of the United States
substantially paralleling and substantially
conforming to a like state law . . . :
* * * * * * *
2. Violation of § 18.2-266, § 18.2-272,
subsection A of § 46.2-341.24 or violation of a
valid local ordinance paralleling and
substantially conforming to § 18.2-266 or § 18.2-
272; . . . .
Code § 46.2-434 provides, in pertinent part:
The Commissioner shall suspend or revoke the
license . . . of any resident of the
Commonwealth upon receiving notice of his
conviction, in a court of competent jurisdiction
of the Commonwealth, any other state of the United
States, the United States, Canada or its provinces
or any territorial subdivision of such state or
country, of an offense therein which, if committed
in the Commonwealth, would be grounds for the
suspension or revocation of the license granted to
him . . . .
Ruling that Code § 46.2-389 controlled the case, the trial
court constructed a five point analysis, comparing South Carolina
Code § 56-5-2930 to Virginia Code § 18.2-266, which, together
with Code § 46.2-341.24(A), proscribes operation of a motor
vehicle while under the influence of alcohol. The trial court
concluded that the South Carolina statute did not substantially
parallel and conform to the Virginia statute. It held that
Terry's South Carolina conviction did not bring him within the
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operation of Code § 46.2-389.
Code § 46.2-389 does not address the case of a Virginia
resident convicted in the court of a foreign state. Rather, this
statute requires the Commissioner to revoke motor vehicle
operating privileges based upon convictions suffered by residents
or nonresidents within Virginia. A careful reading of the
statute requires this holding.
Code § 46.2-389 requires revocation of the driver's license
of "any resident or nonresident." Virginia lacks jurisdiction to
revoke the foreign-issued driver's license of a nonresident
convicted in another state.
Code § 46.2-389 sets forth three jurisdictional categories
of violation: (1) a state law, (2) a valid county, city, or town
ordinance, (3) law of the United States. These three categories
are followed by the modifying clause "substantially paralleling
and substantially conforming to a like state law." This
modifying clause is facially ambiguous. It can be read to modify
only the third category, law of the United States, to which it is
immediately attached. It can be read to modify the entire three
element sequence. However, reading the statute in the context of
its plain purpose resolves that facial ambiguity. If the term "a
like state law" is read to embrace the law of any state, the
statute would operate upon a conviction under a South Carolina
law that substantially paralleled and conformed to the law of any
other state. Plainly, that is not the legislature's purpose. We
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hold, therefore, that the standard defined by the term "state
law" is the standard of Virginia law, and that the term "state
law" means a law of this state. Thus, we construe Code
§ 46.2-389 to control cases involving convictions under (1) a law
of this state, (2) a valid county, city or town ordinance of this
state, or (3) a law of the United States substantially
paralleling and substantially conforming to a like law of this
state. This case involves no such conviction.
Code § 46.2-434 embraces the case of a Virginia resident
convicted in a foreign jurisdiction. If the conviction suffered
is such that it would be ground for suspension or revocation of
license in Virginia, Code § 46.2-434 requires the Commissioner to
impose such a suspension or revocation.
The trial court limited its analysis to the criteria of Code
§ 46.2-389. It made no determination as to the correctness of
the Commissioner's action under Code § 46.2-434, the applicable
statute. Therefore, we remand this case to the trial court for
retrial under Code § 46.2-434.
The judgment of the trial court is reversed and the case is
remanded.
Reversed and remanded.
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