Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
JOHN JAMES VARGA
OPINION BY
v. Record No. 992681 JUSTICE LAWRENCE L. KOONTZ, JR.
November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the trial court in 1998
properly convicted a defendant of driving after being declared
an habitual offender under Code § 46.2-357(A) (formerly Code
§ 46.1-387.8), relying upon a 1984 order by which the defendant
was declared an habitual offender.
BACKGROUND
By order entered on December 13, 1984, the Circuit Court of
Fairfax County, the trial court, declared John James Varga an
habitual offender pursuant to the provisions of former Code
§ 46.1-387.2. 1 The order stated, in pertinent part, that “John
Varga, is hereby DECLARED to be a Habitual Offender and [his]
1
Subsequent to the entry of this order, Title 46.1 was
superseded by Title 46.2. Code § 46.2-351, the successor
statute to former Code § 46.1-387.2, was subsequently repealed
effective July 1, 1999; however, the status of persons declared
habitual offenders prior to that date was not affected by the
repeal. Relevant to the issue raised in this appeal, there is
no material change between the former and current versions of
the statutes we address in this opinion. Accordingly, we will
refer herein to the current version of these statutes.
privilege to operate a motor vehicle in the Commonwealth of
Virginia, BE and is HEREBY REVOKED.”
On June 23, 1986, Varga was convicted of driving after
having been declared an habitual offender. He was next
convicted of driving while intoxicated on June 23, 1988. And
then, on August 29, 1994, Varga was again convicted of driving
after being adjudicated an habitual offender.
Thereafter, Varga took no steps to have his driving
privileges restored, but continued to operate a motor vehicle on
the public highways of the Commonwealth. On January 3, 1998, a
police officer of the Fairfax County police department, on
routine patrol, observed the vehicle operated by Varga drifting
across both northbound lanes of travel. The officer arrested
Varga for driving while intoxicated.
Subsequently, Varga was indicted for driving after being
declared an habitual offender. Approximately four days before
trial, Varga moved to quash the indictment, arguing that the
1984 order declaring him an habitual offender was no longer
effective because that order had been entered more than ten
years previously and it did not state that he would remain an
habitual offender until his privilege to drive was restored.
Varga contended that Code § 46.2-356, which restricts the
issuance of a license to drive motor vehicles to a person
previously declared an habitual offender for a period of ten
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years after being so declared, effectively limits the term of an
habitual offender order to a ten year period unless the express
terms of the order state otherwise. The trial court denied
Varga’s motion.
During a subsequent bench trial, Varga renewed his motion
to quash and, at the close of the Commonwealth’s case, moved to
strike the evidence. 2 In support of his motions, Varga
essentially repeated his prior arguments. The trial court
denied both motions and convicted Varga under Code § 46.2-357(A)
of driving after being adjudicated an habitual offender. By
order entered on June 8, 1998, the court sentenced Varga to
imprisonment for a term of five years.
Varga appealed to the Court of Appeals of Virginia,
contending that the trial court erred in denying his motions to
quash and to strike the Commonwealth’s evidence. The Court of
Appeals rejected Varga’s contentions and affirmed the conviction
in an unpublished memorandum opinion. Varga v. Commonwealth,
Record No. 1490-98-4 (October 19, 1998). We awarded Varga this
appeal.
2
Varga pleaded guilty to the DWI charge and was sentenced to
incarceration for a term of twelve months on that charge.
3
DISCUSSION
Code § 46.2-357(A) defines the felony of driving after
being declared an habitual offender. In pertinent part, Code
§ 46.2-357(A) states that “[i]t shall be unlawful for any person
to drive any motor vehicle . . . on the highways of the
Commonwealth while the revocation of the person’s driving
privilege remains in effect.” Under Code § 46.2-358, any person
declared an habitual offender “five years from the date of any
final order . . . may petition the court . . . for restoration
of his privilege to drive a motor vehicle” at which time the
court may “restore to the person the privilege to drive . . . or
. . . order that the person be issued a restricted license to
drive.” See also Code §§ 46.2-359 to -361 (permitting at any
time the restoration of conditional driving privileges of
certain persons declared habitual offenders). In contrast, Code
§ 46.2-356 states that a person declared an habitual offender
shall not be issued a license to drive “for a period of ten
years from the date of any [such] final order . . . and . . .
until the privilege of the person to drive . . . has been
restored by an order of a court entered in a proceeding as
provided in this article.” (Emphasis added.)
Varga relies primarily on Davis v. Commonwealth, 12 Va.
App. 246, 402 S.E.2d 711 (1991), to support his contention that
the 1984 order declaring him an habitual offender was no longer
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effective. In pertinent part, the order in Davis stated: “The
Court doth ADJUDGE, ORDER, and DECREE that said Calvin Windell
Davis is such an ‘habitual offender’ as is set forth in Section
46.1-387.2 of the Code of Virginia, 1950, as amended, and that
his driving privilege to operate a motor vehicle in this state
is revoked for a period of ten (10) years from the date of this
order.” 12 Va. App. at 247 n.2, 402 S.E.2d at 712 n.2. The
Court of Appeals held that this order “revoked Davis’ license
and prohibited him from driving for a period of ten years.” Id.
at 249, 402 S.E.2d at 713. Varga argues that Davis stands for
the proposition that only in those cases where the order
contains additional language providing that the order remains in
force until the habitual offender’s privilege to drive has been
restored can a person be convicted of driving after having been
declared an habitual offender after the ten-year period has
expired. This is so, Varga asserts, because the ten-year period
in Code § 46.2-356 implicitly restricts the duration of the
effectiveness of an habitual offender order which does not
contain express language extending the effectiveness of the
order until the person’s driving privilege is restored or for
some specific period of time in excess of ten years.
In response, the Commonwealth asserts that the habitual
offender statutes authorize the appropriate courts to revoke
indefinitely the driving privilege of an habitual offender and
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to restore that privilege at certain times and under certain
conditions. The Commonwealth further asserts that the ten-year
limitation for the issuance of an operator’s license to an
habitual offender contained in Code § 46.2-356 does not restrict
that authority. We agree with the Commonwealth.
Reading the habitual offender statutes in pari materia, it
is clear that once a person is declared an habitual offender by
order of a trial court, he retains that status and loses his
driving privilege for so long as the order is effective. Thus,
unless the trial court specifically limits the duration of the
effect of the order, as was the case in Davis, the habitual
offender status of the person so declared continues until that
person successfully petitions the court to have that status
removed and his privilege to drive restored under one of the
code sections permitting such petitions. See Manning v.
Commonwealth, 22 Va. App. 252, 255-56, 468 S.E.2d 705, 707
(1996).
Code § 46.2-356 does not restrict the effectiveness of a
trial court’s order declaring a person an habitual offender to a
period of ten years. To the contrary, by use of the conjunctive
“and,” the statute is clear that both the passage of ten years
from the entry of the order declaring the person an habitual
offender and the restoration of the privilege to drive by the
trial court are prerequisites to the issuance of a new,
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unrestricted license by the Commissioner of the Department of
Motor Vehicles. While a person declared an habitual offender
may successfully petition to have his privilege to drive
restored and obtain a license to drive after this ten-year
period, or sooner under the specific circumstances contemplated
by Code §§ 46.2-358 to –361, the mere passage of the period of
time required before seeking to have that privilege restored
does not act to vitiate the effectiveness of the order which
revoked that privilege initially. Thus, we hold that, in the
absence of express language limiting the duration of the effect
of the order declaring a person an habitual offender, the order
remains in force until that person actually has his privilege to
drive restored. In the present case, Varga had not had his
privilege to drive restored and, thus, the 1984 order remained
in effect. Accordingly, the Court of Appeals correctly held
that Varga was properly convicted for driving after having been
declared an habitual offender when he drove his motor vehicle in
1998.
Our holding today ensures that the policies of the habitual
offender statutes can be effectuated by the orders issued by
Virginia courts. We have explained the purposes behind the
habitual offender statutes as follows:
Virginia’s Habitual Offender Act declared it to
be the policy of the state to provide maximum safety
for all persons using the highways; to deny the
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privilege of operating motor vehicles to persons who
by their record have demonstrated their indifference
to the safety of others and their disrespect for the
laws of the state and the orders of its courts; to
discourage repetition of criminal acts by individuals;
and to impose increased and added deprivation of the
privilege to operate motor vehicles upon habitual
offenders who have been convicted repeatedly of
violations of traffic laws.
Whorley v. Commonwealth, 215 Va. 740, 745-46, 214 S.E.2d 447,
451 (1975).
CONCLUSION
For these reasons, we will affirm the judgment of the Court
of Appeals.
Affirmed.
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