COURT OF APPEALS OF VIRGINIA
Present: Judges Barrow, * Koontz and Elder
Argued at Richmond, Virginia
EDWIN JOSEPH TRAVIS
OPINION BY
v. Record No. 2465-93-1 JUDGE LARRY G. ELDER
MAY 23, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
Jeffrey C. Flax (Kelberg, Childress and Flax,
on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General; Margaret
Ann B. Walker, Assistant Attorney General, on
brief), for appellee.
Edwin Joseph Travis (appellant) appeals his felony
conviction for driving a motor vehicle after having been
adjudicated an habitual offender in violation of Code § 46.2-357.
Appellant contends: (1) an habitual offender who is granted a
restricted privilege to drive pursuant to Code § 46.2-360(2) does
not remain an habitual offender subject to prosecution under Code
§ 46.2-357 for driving in violation of the restrictions; and
(2) there was insufficient evidence to prove that appellant's
driving "of itself" endangered the life, limb, or property of
another in violation of Code § 46.2-357(B)(2). Because the trial
court committed no error, we affirm the conviction.
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and joined in the opinion prior to his
death.
I.
FACTS
On January 9, 1989, appellant was declared an habitual
offender by the Circuit Court of Northampton County, pursuant to
Code § 46.2-351 (formerly Code § 46.1-387.2). As a result,
appellant's driving privileges were revoked for ten years. In
1992, appellant petitioned the same court for restoration of his
driving privileges pursuant to Code § 46.2-360. The court
entered an order on September 18, 1992, specifically finding that
appellant met the criteria of Code § 46.2-360(2). Pursuant to
this section, the court determined that appellant no longer
constituted a safety threat to himself and others with regard to
the driving of a motor vehicle. The court thereafter allowed
appellant to operate a vehicle to and from his place of
employment and to and from the mandatory Virginia Alcohol Safety
Action Program (ASAP).
On April 22, 1993, Virginia State Trooper Alan Gladden
observed appellant's vehicle parked at a restaurant at
approximately 11:15 p.m. Gladden knew not only appellant's
status as an habitual offender but also the restrictions on
appellant's driving privileges. After Gladden observed appellant
leave the restaurant and enter his car, he followed appellant for
approximately one mile. Gladden testified that appellant weaved
within his lane of travel and over the left line of the lane.
Because he suspected appellant of driving under the influence of
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alcohol, Gladden pulled appellant's vehicle over to the roadside
and administered field sobriety tests. Gladden also administered
a blood alcohol test, which revealed that appellant was driving
with a blood alcohol level of .14. Appellant was arrested at
11:47 p.m.
Appellant was indicted upon a charge of operating a motor
vehicle after having been declared an habitual offender in
violation of Code § 46.2-357. He was also charged with operating
a motor vehicle while under the influence of alcohol in violation
of Code § 18.2-266. A jury trial held on November 15, 1993
resulted in a mistrial on the charge of driving under the
influence, but resulted in a felony conviction on the habitual
offender charge of Code § 46.2-357. Appellant was sentenced to
twelve months in jail.
II.
HABITUAL OFFENDER STATUS
The facts show that appellant was an habitual offender as
defined in Code § 46.2-351 and that his driving privileges had
been revoked for a period of ten years. Despite his status, the
trial court, on September 18, 1992, entered an order finding that
appellant met the criteria of Code § 46.2-360(2) 1 and allowed
1
This statutory section states that a court may grant an
habitual offender a restricted driving permit if the court is
satisfied that (1) at the time of the previous convictions, the
offender was addicted to or psychologically dependent on the use
of alcohol or other drugs; (2) at the time of the hearing on the
petition the offender is no longer addicted to or psychologically
dependent on the use of alcohol or other drugs; and (3) the
offender does not constitute a threat to the safety and welfare
3
appellant to operate a vehicle for limited purposes on a
restricted license 2 in accordance with the procedures of Code
§ 18.2-271.1(E). As Code § 46.2-360(2) states, "[a]ny violation
of the restrictions shall be reported to the court, and the court
may then modify the restrictions or revoke the license."
We affirm the trial court's ruling that the Commonwealth
properly charged appellant with a felony violation of Code
§ 46.2-357(B)(2) after arresting him for driving while
intoxicated on April 22, 1993. According to Code § 46.2-357, it
is unlawful for an habitual offender to drive a motor vehicle
"while the order of the court prohibiting such operation remains
in effect." An habitual offender who is found operating a
vehicle on the Commonwealth's roadways shall be guilty of either
a misdemeanor or a felony. A misdemeanor charge is appropriate
where the habitual offender's driving, "does not, of itself,
endanger the life, limb, or property of another." Code
§ 46.2-357(B)(1) (emphasis added). On the other hand, the
habitual offender may be charged with a felony if his or her
driving, "of itself, does endanger the life, limb, or property of
of himself and others with regard to the driving of a motor
vehicle.
2
The limited privileges granted in this case conform to
the privileges enumerated in Code § 18.2-271.1(E), which include
limited privileges such as driving to and from work and to and
from an alcohol treatment program. Code § 46.2-360 also gives a
court the option of restoring full driving privileges to an
habitual offender. Code § 46.2-360(1).
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another." Code § 46.2-357(B)(2) (emphasis added). 3
In reaching our conclusion, we reject two contentions
proposed by appellant. First, we do not believe that because the
trial court found that appellant no longer constituted a threat
to himself or others with regard to operating a motor vehicle,
appellant was no longer an habitual offender. Code § 46.2-360(2)
specifically states that any violation of driving privileges may
lead to a modification of the court order or a subsequent
revocation of the habitual offender's driver's license. The
continuing authority of the court to modify or revoke the license
belie appellant's assertion that his adjudication as an habitual
offender was no longer valid. As the Commonwealth contends, the
trial court granted a restricted license under subsection (2) of
Code § 46.2-360, not subsection (1), the subsection granting a
full restoration of driving privileges. Appellant's status as an
habitual offender continued despite his limited driving
privileges, and he was properly charged under Code § 46.2-357
because he operated a motor vehicle during times not authorized
3
Code § 46.2-357(B)(2) added the language "If such
driving, of itself, does endanger the life, limb, or property of
another, such person shall be guilty of a felony" effective July
of 1993. Before this time, there was no misdemeanor-felony
classification; a violation of this section resulted in a felony
conviction.
This amended section became effective over two months after
the offense was committed but before appellant went to trial.
However, the issue over which version of the statute to proceed
under was not preserved on appeal, nor does it appear in the
parties' briefs. It appears from the Commonwealth's brief that
the Commonwealth acquiesced in proceeding under the 1993 amended
version.
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by the trial court.
Second, we reject appellant's assertion that prosecution for
a violation of his driving privileges must be pursuant to Code
§ 46.2-301, an alternate section, dealing with unlicensed
driving, which provides for a misdemeanor conviction instead of a
felony conviction. Appellant contends that Code § 46.2-360(2),
the section allowing the grant of a restricted license, states
that a restricted license is issued pursuant to Code
§ 18.2-271.1(E), which in turn provides that "[a]ny person who
operates a motor vehicle in violation of any restrictions imposed
pursuant to this section shall be guilty of a violation of Code
§ 46.2-301," 4 which is a Class 2 misdemeanor.
While Code § 46.2-360(2) references Code § 18.2-271.1, this
reference is for the limited purpose of using the latter's
procedures for issuing a restricted permit, not for using its
punishment provisions, which are part of the Code sections
dealing with DUI offenders, not habitual offenders. 5 In our
view, appellant was violating restrictions imposed pursuant to
Code §§ 46.2-360 and 46.2-357, not Code § 18.2-271.1. "[W]hen
one statute speaks to a subject in a general way and another
deals with a part of the same subject in a more specific manner,
4
This section was amended in July 1993 and substituted
"Code § 18.2-272" for "Code § 46.2-301."
5
Furthermore, Code § 18.2-271.1 states, if the offender
"operates a motor vehicle in violation of any of the restrictions
imposed pursuant to this section," he or she shall be guilty of
violating Code § 46.2-301 (emphasis added).
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the two should be harmonized, if possible, and where they
conflict, the latter prevails." Virginia Nat'l Bank v. Harris,
220 Va. 336, 340, 257 S.E.2d 867, 870 (1979) (emphasis added);
see also Penton v. City of Norfolk, 16 Va. App. 141, 428 S.E.2d
309 (1993). Thus, the punishment provisions of Code § 18.2-272
are superseded by provisions directly related to cases involving
habitual offenders--the provisions contained in Code § 46.2-357
under which appellant was charged.
III.
SUFFICIENCY OF THE EVIDENCE
We also hold that sufficient evidence proved that appellant
was driving in violation of Code § 46.2-357(B)(2). The standard
for appellate review of criminal convictions is well-established.
"When a defendant challenges the sufficiency of the evidence, we
are required to review the evidence 'in the light most favorable
to the Commonwealth and give it all reasonable inferences fairly
deducible therefrom.'" Collins v. Commonwealth, 13 Va. App. 177,
179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
"The conviction will not be reversed unless it is plainly wrong
or without evidence to support it." Id.; see Code § 8.01-680.
The evidence shows that Trooper Gladden, who was following
appellant in a police car, observed appellant weaving within his
lane of traffic and even "over the left line." As we recently
stated in Bishop v. Commonwealth, 20 Va. App. 206, ___, 455
7
S.E.2d 765, 767 (1995):
The distinction between negligent
driving and reckless driving is the critical
element in determining punishment under Code
§ 46.2-357. In defining the conduct that
gives rise to felony punishment under Code
§ 46.2-357(B)(2), the legislature used the
phrase, "driving [that] . . . endanger[s] the
life, limb, or property of another," language
virtually identical to that found in the
statute defining reckless driving. See Code
§ 46.2-852 ("driving . . . at a speed or in a
manner so as to endanger the life, limb, or
property of any person shall be . . .
reckless driving.").
Because appellant was weaving within his own lane and into the
other lane, the circumstances support a finding that his driving
"of itself . . . endanger[ed] the life, limb, or property of
another." Code § 46.2-357(B)(2).
The facts of this case are unlike Bishop, where no evidence
proved that the actual manner in which Bishop drove his vehicle
endangered the life, limb, or property of another. In Bishop,
this Court held that the driver's intoxication does not
constitute per se proof that the driver endangered life, limb, or
property, and "the inference drawn solely from Bishop's
intoxication, without more, was insufficient to support
imposition of felony punishment." Id. at ___, 455 S.E.2d at 766.
In this case, sufficient evidence proved that appellant's
driving was dangerous to the life, limb, or property of another.
For these reasons, we affirm appellant's conviction.
Affirmed.
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