COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
JOHN JAMES VARGA
MEMORANDUM OPINION * BY
v. Record No. 1490-98-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Kimberly J. Phillips (Office of the Public
Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Following a bench trial, John James Varga ("appellant") was
convicted under Code § 46.2-357 of operating a motor vehicle after
having been adjudicated an habitual offender. On appeal, he
contends the trial court committed reversible error by denying his
motion to quash the indictment and his motion to strike. We
disagree and affirm his conviction.
I.
FACTUAL BACKGROUND
The facts are not in dispute. By order of December 13, 1984,
the Circuit Court of Fairfax County declared appellant an habitual
offender. The order provided in pertinent part:
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
[T]he said Habitual Offender as defined in
§ 46.1-387.2 of the Code of Virginia, . . .
is hereby declared to be a Habitual Offender
and this his/her privilege to operate a motor
vehicle in the Commonwealth of Virginia, BE
and is HEREBY REVOKED.
Over thirteen years later, on January 3, 1998, Officer M.R.
Anderson of the Fairfax County Police Department observed
appellant's vehicle drifting outside its lane on Route 1 in
Fairfax County. After making a traffic stop, Officer Anderson
arrested appellant for driving while intoxicated. Appellant had
not taken any steps to have his privilege to drive a motor vehicle
restored.
A grand jury subsequently indicted appellant for driving
while intoxicated and for driving after having been adjudicated an
habitual offender. Before trial, appellant moved to quash the
latter charge, contending the circuit court's December, 1984 order
was no longer effective as it was more than ten years old and did
not state that he would remain an habitual offender until his
privileges were restored by the court. The trial court denied
appellant's motion.
At trial, the Commonwealth introduced the December, 1984
order. 1 At the close of the Commonwealth's case, appellant moved
to strike the evidence, renewing his arguments as to the
1
The Commonwealth also introduced orders showing that
appellant had been convicted on three occasions since 1984 for
driving after having been adjudicated an habitual offender.
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ineffectiveness of the December, 1984 order. The trial court
denied appellant’s motion and convicted appellant under Code
§ 46.2-357 of driving after having been declared an habitual
offender.
II.
ANALYSIS
The disposition of this case turns on principles established
by previous decisions of this Court. Code § 46.2-357, the statute
under which appellant was convicted, provides that "[i]t shall be
unlawful for any person to drive any motor vehicle or
self-propelled machinery or equipment on the highways of the
Commonwealth while the revocation of the person's driving
privilege remains in effect." In 1984, the circuit court revoked
appellant's privilege to operate a motor vehicle pursuant to the
authority of Code § 46.1-387.6, which provided that:
[i]f the court finds that the person is . . .
an habitual offender, the court shall . . .
by appropriate order direct such person not
to operate a motor vehicle on the highways of
the Commonwealth of Virginia and to surrender
to the court all licenses or permits to
operate a motor vehicle on the highways of
this State for disposal in the manner
provided in § 46.1-125.
Code § 46.1-387.6 (Supp. 1968).2
2
The statute under which appellant was prosecuted was
re-codified in substantially the same form at Code § 46.2-355.
This statute was repealed in 1999.
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Appellant contends that this order establishing his status as
an habitual offender and declaring his operator's license revoked
became ineffective with the passage of ten years, citing in
support Code § 46.2-356. Reliance on Code § 46.2-356 for the
proposition stated is misplaced. That code section, entitled
"Period during which habitual offender not to be licensed to drive
motor vehicle," does not address the effectiveness of the court's
order; it simply prohibits the issuance of a driver's license to
an habitual offender:
(i) For a period of ten years from the date
of any final order of a court entered under
[the habitual offender statutes] . . . and
(ii) until the privilege of the person to
drive a motor vehicle in the Commonwealth has
been restored by an order of a court entered
in a proceeding as provided in this article.
This statute defines the period during which an habitual offender
may not be issued a license and has no bearing on the court's
precedent finding, memorialized in its final order, viz., that
appellant was an habitual offender and that his operator's license
was revoked.
As we noted in Davis v. Commonwealth, 12 Va. App. 246, 248,
402 S.E.2d 711, 712 (1991), Code § 46.2-356 is unrelated to the
definition of the elements of the crime. We observed further in
Anderson v. Commonwealth, 25 Va. App. 26, 32, 486 S.E.2d 115, 117
(1997), that Code § 46.2-356 directs the Department of Motor
Vehicles in the issuance of driver's licenses to individuals found
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to be habitual offenders; it does not serve as a jurisdictional
limitation on the circuit courts, as the appellant there
contended. Also, in Long v. Commonwealth, 23 Va. App. 537, 545,
478 S.E.2d 324, 327 (1996), we held, on facts substantially
similar to those presented here, that "under the terms of the
order, which were not limited as to time frame, the prohibition
against driving was in effect when appellant was stopped."
Based upon the foregoing reasons, we find no error in the
circuit court’s ruling that the December, 1984 order was effective
at the time of the present offense. By its terms, the order's
prohibition against driving remained in effect when appellant was
stopped. Compare Anderson, 25 Va. App. at 32, 486 S.E.2d at 117;
Long, 23 Va. App. at 544-45, 478 S.E.2d at 327-28. Furthermore,
we note that the order's prohibition was not modified by any
petition for restoration of appellant's privilege to drive
pursuant to Code § 46.2-358.
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
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