Carl Dorman v. Commonwealth of VA, Dept. of Motor Vehicles & Richard D. Holcomb, Commissioner

• Court: Court of Appeals of Virginia
• Decided: September 24, 2019
• Docket: 0170192
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Petty and Huff Argued at Richmond, Virginia UNPUBLISHED

CARL DORMAN MEMORANDUM OPINION* BY v. Record No. 0170-19-2 JUDGE GLEN A. HUFF SEPTEMBER 24, 2019 COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES AND RICHARD D. HOLCOMB, COMMISSIONER

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge

Rob Starnes (Starnes Law Office, on brief), for appellant.

Christian A. Parrish, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Jeffrey R. Allen, Senior Assistant Attorney General/Chief, on brief), for appellees.

Carl Dorman (“appellant”) appeals the Virginia Department of Motor Vehicles’ (“DMV”

or “agency”) informal conference decision denying his application for renewal of his Virginia

driver’s license. Appellant first appealed the agency decision to the Circuit Court for the City of

Richmond, which affirmed. Appellant raises two assignments of error to this Court:

1. The Circuit Court erred in affirming the agency decision where the record showed the agency did not consider Mr. Dorman’s Due Process Arguments, substantive nor procedural, unilaterally dismissing them out of hand.

2. The Circuit Court erred in finding substantial evidence in the agency record to support the agency decision where it was undisputed that Florida provided a release letter and Georgia’s punishment for Driving Suspended was dissimilar to Virginia’s proscribed punishment.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Although not included in these assignments of error, appellant also contends that the DMV’s

decision violates his right to interstate travel under the Commerce Clause, the Privileges and

Immunities Clause of Article Four, and the Equal Protection Clause of the United States

Constitution.

Because the agency’s factual findings are supported by evidence in the record and

appellant’s legal arguments are without merit, this Court affirms the circuit court decision

affirming the informal conference decision of the DMV.

I. BACKGROUND

On August 23, 1987, appellant was arrested for driving under the influence of alcohol in

Tennessee. At the time, appellant was licensed in Florida. On October 23, 1987, appellant was

convicted in Tennessee for driving under the influence of alcohol in violation of former

Tennessee Code § 55-10-40. The same day, Florida revoked appellant’s driving privileges

because of that conviction.

On September 10, 1990, appellant was again convicted for driving under the influence of

alcohol—this time in Georgia. Appellant was licensed in Georgia at the time of this conviction.

The same day he was convicted, Georgia suspended his driving privileges. On May 24, 1991,

appellant was arrested for driving on a suspended license. Meanwhile, appellant’s driving

privileges were reinstated by Georgia on September 10, 1991. Yet, on December 4, 1991,

appellant was convicted on the pending charge of driving on a suspended license in violation of

former Georgia Code § 40-5-121. As a result, Georgia re-suspended appellant’s license.

By 1995, appellant had relocated to Virginia. Appellant applied for and was issued a

Virginia driver’s license. In the years since, the Commonwealth has renewed his driver’s license

multiple times, with the two most recent occasions being November 3, 2005, and October 5,

2009. On October 24, 2017, appellant went to the Gate City DMV to renew his driver’s license.

-2- The DMV employee assisting appellant queried the National Driver Registry (“NDR”) to

determine his eligibility. The NDR report listed appellant as “not eligible” for a Virginia driver’s

license. The DMV employee denied appellant’s request to renew his driver’s license and voided

a temporary license that had been issued to him.

On December 13, 2017, appellant’s counsel received a letter from the Florida Department

of Highway Safety and Motor Vehicles which stated that appellant’s revocation based on a 1983

conviction for driving under the influence was closed and that he was eligible to receive a

driver’s license. The letter did not mention the 1987 conviction from Tennessee. Subsequently,

appellant’s counsel wrote to the DMV requesting a new license be issued to his client. On

January 28, the DMV obtained a new NDR report which contained two entries from Florida.

The first listed the name “Dorman, Carl, E” and reported him as “not eligible” due to the 1987

revocation resulting from his Tennessee conviction for driving under the influence of alcohol.

The second listed the name “DORMAN@CARLE” and reported him as “eligible.” This entry

did not mention the 1987 revocation. The NDR report also listed appellant as “not eligible” in

Georgia because of the suspension resulting from his 1991 conviction for driving on a suspended

license.

On February 1, 2018, Richard Holcomb, the Commissioner of the DMV

(“Commissioner”), denied appellant’s request to renew his license. The Commissioner stated

that Code § 46.2-316 prohibits issuance of a license to appellant. The decision explained that the

DMV had contacted Florida and Georgia, and it relayed what steps appellant must take to resolve

the revocation and suspension in those states. The next day, appellant requested a hearing.

The DMV obtained an additional NDR report on April 16, 2018, which confirmed the

same information as the previous reports, but appeared to consolidate the two Florida profiles. A

hearing was held on May 24, 2018, and the Commissioner issued an informal conference

-3- decision on June 27, 2018, holding that the DMV was prohibited from issuing or renewing

appellant’s license. Appellant appealed to the Circuit Court for the City of Richmond pursuant

to the Virginia Administrative Process Act (“VAPA”). That court affirmed the agency decision

by final order entered January 2, 2019. This appeal followed.

II. STANDARD OF REVIEW

Agency actions are presumed valid on review. Env. Def. Fund, Inc. v. Va. State Water

Control Bd., 15 Va. App. 271, 277 (1992). The appellant bears the burden of overcoming this

presumption. Id. Judicial review is limited to examining the agency decision for:

“(i) accordance with constitutional right[s], (ii) compliance with statutory authority,

(iii) observance of required procedures where any failure therein is not mere harmless error, and

(iv) the substantiality of the evidentiary support for findings of fact.” Virginia Bd. of Med. v.

Hagmann, 67 Va. App. 488, 500 (2017) (citations omitted).

The deference accorded to an agency’s determination of law depends on the law being

interpreted. Commonwealth ex rel. Va. State Water Control Bd. v. Blue Ridge Env. Def.

League, Inc, 56 Va. App. 469, 480 (2010). If the law falls within that agency’s “specialized

competence,” the agency decision is “entitled to special weight” and will be overturned only if it

“constitutes a clear abuse of the delegated discretion.” Id. (quoting Johnston-Willis, Ltd. v.

Kenley, 6 Va. App. 231, 243-44 (1988)). “However, courts do not defer to an agency’s

interpretation ‘[i]f the issue falls outside the area generally entrusted to the agency, and is one in

which the courts have a special competence, i.e., the common law or constitutional law . . . .’”

Id. at 481 (quoting Johnston-Willis, 6 Va. App. at 243) (alteration in original). Accordingly, an

agency’s “‘legal interpretations of statutes’ is accorded no deference because ‘[w]e have long

held that pure statutory interpretation is the prerogative of the judiciary.’” Id. (quoting The

-4- Mattaponi Indian Tribe v. Commonwealth, Dep’t of Envt’l Quality, 43 Va. App. 690, 707

(2004)).

“We review an administrative agency’s factual decisions only for whether they have

support in substantial evidence.” Mazloumi v. Dep’t of Envtl. Quality, 55 Va. App. 204, 208

(2009). “This Court may reverse an agency’s factual conclusions only where ‘a reasonable mind

would necessarily reach a different conclusion.’” Id. at 208-09 (quoting Alliance to Save the

Mattaponi v. Commonwealth, 270 Va. 423, 441 (2005)).

III. ANALYSIS

A. Appellant’s Alleged Due Process Violations

Appellant asserts a single, but layered, due process violation. Appellant contended below

that the imposition of any additional requirements to renew his license based on old convictions

violates his due process rights. To this Court, appellant avers only that the DMV failed to afford

him due process of law by refusing to consider his underlying due process argument. Appellant

contends that this effectively denied him a hearing.

A person’s right to operate a motor vehicle cannot be taken away without the protections

of procedural due process. Commonwealth v. Shaffer, 263 Va. 428, 431-32 (2002).

Post-deprivation procedures are sufficient to satisfy the requirements of procedural due process.

Id. at 433-34. To comport with constitutional guarantees of procedural due process, any

post-deprivation hearing must provide certain minimum requirements including timely and

adequate notice; the right to present evidence and confront adverse witnesses; the right to

assistance of retained counsel; and the right to an impartial decision maker. Hagman, 67

Va. App. at 501.

Appellant does not assert that any of the above minimum requirements were absent.

Appellant contends only that the DMV effectively denied him a hearing when it refused to

-5- consider his underlying due process arguments. But, the record belies appellant’s assertion. The

Commissioner did determine that the agency was “not the proper forum to determine whether a

statute or the application of a statute is constitutional.”1 However, the Commissioner went on to

reject appellant’s argument by holding that “Virginia is not the proper jurisdiction to raise this

argument since it is not imposing [the] requirements.”

In sum, appellant received an adequate post-deprivation hearing in which he presented

his due process arguments. The Commissioner considered those arguments and rejected them.

These actions were sufficient to satisfy the constitutional guarantees of due process with regard

to any actions taken by the Commonwealth.2

B. Appellant’s Other Constitutional Arguments

Appellant argues that the DMV’s refusal to renew his license violates his right to

interstate travel under various provisions of the United States Constitution. This argument is

procedurally defaulted for two reasons. First, it was not presented to the circuit court. See Rule

5A:18. Second, appellant failed to assign this argument as an error. See Karr v. Va. Dep’t of

Envtl. Quality, 66 Va. App. 507, 521 (2016) (“If a party fails to assign a specific error in its

petition, this Court will not reach the merits of that assignment.”). Furthermore, appellant does

not raise either the good cause or ends of justice exceptions, and this Court may not invoke such

exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 766 (2003) (en banc).

Therefore, this Court declines to address these arguments.

1 Whether the Commissioner can determine the constitutionality of a statute in the first instance is not before the Court. Accordingly, this Court takes no position on that issue. 2 Appellant did not assign error to the Commissioner’s substantive ruling. Therefore, this Court does not address whether Georgia or Florida’s imposition of certain requirements to reinstate appellant’s eligibility for a driver’s license violates his right to due process; nor does this Court express any opinion on whether those arguments could be properly raised in a Virginia court. -6- C. Appellant’s State Specific Arguments

Appellant’s second assignment of error challenges the DMV’s substantive decision that

he is ineligible for a driver’s license because of both his prior suspension in Georgia and his prior

revocation in Florida. Regarding Georgia, appellant contends that its laws are dissimilar to those

of this Commonwealth because of differing punishment and therefore may not bar issuance of a

Virginia license. As to Florida, appellant argues that there is not substantial evidence in the

record to support the DMV’s decision because he received a release letter from Florida.

In order to overturn the agency decision denying his license renewal, appellant must

prevail on both issues. Because prevailing on one issue would affect the remaining requirements

for licensure, however, the Court addresses both issues in turn.

1. Similarity of the Laws of Georgia and the Commonwealth

Appellant contends that the applicable laws of Georgia and the Commonwealth are not

similar for purposes of Code § 46.2-316(A)(4). Specifically, appellant avers that Georgia’s

prescription of attending DUI school as punishment for a violation of Georgia law is not a

punishment that would be available under the applicable Virginia law. Appellant asserts that this

difference in potential punishments renders the statutes dissimilar. Appellant does not, however,

allege that the conduct prohibited by the two statutes is dissimilar.

The DMV is prohibited from issuing a driver’s license to any individual who has been

convicted in another state of a charge similar to Code §§ 18.2-266 or 18.2-272. Code

§ 46.2-316(A)(4). At the time of his conviction, the applicable Georgia statute provided that

“[e]xcept when his license has been revoked as a habitual offender . . . any person who drives a

motor vehicle on any public highway of [the State of Georgia] at a time when his privilege to do

so is suspended, disqualified, or revoked shall be guilty of a misdemeanor . . . .” Ga. Code

§ 40-5-121(a) (1991). The corresponding Virginia statute provided that “[if] any person so

-7- convicted [of driving while intoxicated] shall, during the time for which he is deprived of his

right so to do, drive or operate any motor vehicle . . . in this Commonwealth, he shall be guilty of

a Class 1 misdemeanor . . . .” Code § 18.2-272 (1991).

This Court has not yet had occasion to address the standard for identifying whether two

statutes are similar for purposes of Code § 46.2-316(A). In other contexts, the Court has noted

that the “word similar ‘is generally interpreted to mean that one thing has a resemblance in many

respects, nearly corresponds, is somewhat like, or has a general likeness to some other thing but

is not identical in form and substance . . . .’” Cty. of Frederick Fire and Rescue v. Dodson, 20

Va. App. 440, 446 (1995) (quoting Black’s Law Dictionary 1383 (6th ed. 1990)); see also Stroud

v. Stroud, 49 Va. App. 142, 151 (2007). This Court’s jurisprudence concerning when two

statutes substantially conform for purposes of the former habitual offender statute is also

instructive. See Code § 46.2-351 (repealed 1999). In that context, the two statutes did not need

to “conform in every aspect.” Cox v. Commonwealth, 13 Va. App. 328, 331 (1991). “Only that

prohibition of the other state’s law under which the person was convicted [had to] substantially

conform.” Id.

Appellant relies solely on the assertion that a difference in punishment renders them

dissimilar. However, the potential punishment for a given offense is not applicable when

determining substantial similarity or conformity. See id. Therefore, these laws are similar3 for

purposes of Code § 46.2-316(A).

3 The appellant does not argue that the conduct prohibited by these two statutes is dissimilar. Therefore, the Court does not address the question of whether any differences in their prohibited conduct would, in fact, render them dissimilar. See, e.g., Shinault v. Commonwealth, 228 Va. 269 (1984); Cox, 13 Va. App. 328; West v. Commonwealth, 14 Va. App. 350 (1992). -8- 2. Substantial Evidence of Ineligibility

Lastly, appellant contends that the agency acted arbitrarily and capriciously when it

refused to renew his license despite receiving a release letter from Florida. Appellant does not

challenge whether the applicable law of Florida is similar to the applicable law of this

Commonwealth. Accordingly, this assignment of error presents only the factual question of

whether there was a predicate conviction and suspension under Florida law. As such, this Court

reviews the agency decision only for whether its factual finding was supported by substantial

evidence. Mazloumi, 55 Va. App. at 208.

The DMV received and reviewed both the release letter submitted by Florida and the

NDR report of appellant. The Florida release letter stated that appellant’s revocation case

relating to a 1983 Florida conviction for driving under the influence had been closed and that he

was eligible for a license. The letter did not mention the 1987 Tennessee conviction and

subsequent revocation in Florida. The record also reflects that this letter was later revealed to be

sent in error because appellant mistakenly had two Florida NDR profiles. Indeed, this is

reflected in the NDR reports themselves. The January 23, 2018 NDR report lists one profile for

the name “Dorman, Carl, E” and one for the name “DORMAN@CARLE.” Meanwhile, the

April 16, 2018 NDR report lists only the name “Dorman, Carl, E” and lists

“DORMAN@CARLE” as a known alias. Although the January 23, 2018 NDR report for

“DORMAN@CARLE” lists him as eligible, both the January 23 and April 16, 2018 NDR

reports for “Dorman, Carl, E” listed him as ineligible.

In light of this evidence, this Court cannot say that a “reasonable mind would necessarily

reach a different conclusion.” Id. Therefore, the factual determination of the agency is binding.

-9- IV. CONCLUSION

This Court affirms the circuit court’s ruling which affirmed the DMV’s decision to deny

appellant’s request to renew his driver’s license. The DMV did not violate appellant’s due

process rights, and appellant waived his other constitutional arguments. Appellant failed to meet

his burden to demonstrate that the agency action was invalid, and the DMV’s ultimate decision is

supported by the evidence.

Affirmed.

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