COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES MEMORANDUM OPINION* v. Record No. 2012-96-1 BY JUDGE JOSEPH E. BAKER JULY 15, 1997 GARY WAYNE STAFFORD
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE V. Thomas Forehand, Jr., Judge Eric K. G. Fiske, Assistant Attorney General (James S. Gilmore, III, Attorney General, on briefs), for appellant.
Allen J. Gordon for appellee.
On May 24, 1995, Gary Wayne Stafford (Stafford) was declared
an habitual offender by the Circuit Court of the City of
Chesapeake (trial court) and ordered not to operate a motor
vehicle for a period of ten years from the date of the order or
until his privilege to drive "has been restored by Order of a
Court of record entered in a proceeding in accordance with law
pursuant to the statutes made and provided." On July 31, 1996,
the trial court issued Stafford a restricted license to drive to
his place of employment and substance abuse program. In this
appeal from the July 31, 1996 order, the Commonwealth of
Virginia, Department of Motor Vehicles (DMV) contends that the
trial court was without legal authority to grant a restricted
____________________
*Pursuant to Code § 17-116.010 this opinion is not designated for publication. license to Stafford because neither the ten-year prohibition
period nor the requirements of Code § 46.2-360 1 had been met.
Stafford asserts that we should not consider the issue
presented by this appeal because the DMV (1) did not preserve the
issue for appeal and (2) failed to provide this Court with a
transcript of the proceedings below, or a written statement of
facts in lieu thereof. We have reviewed the record and find that
the issue presented here was contained in the DMV's motion to
dismiss made in the trial court and there denied. Stafford further contends that because of the DMV's failure
to timely file a transcript or written statement of facts, this
matter should be dismissed without further consideration. See
Rule 5A:8; Barrett v. Barrett, 1 Va. App. 378, 339 S.E.2d 208
(1986). The filing of a transcript is not mandatory, and the
failure to file a transcript does not per se foreclose our
consideration of an appeal. Wolfe v. Commonwealth, 6 Va. App.
640, 643, 371 S.E.2d 314, 315 (1988). "If the record on appeal
is sufficient in the absence of the transcript to determine the
1 Code § 46.2-360 sets forth the requirements for restoration of
the privilege of operating a motor vehicle to a person who has
been adjudicated an habitual offender where the adjudication was
based in part and dependent on a conviction for driving or
operating a motor vehicle while under the influence of
intoxicants.
- 2 - merits of the appellant's allegation, we are free to proceed to
hear the case." Turner v. Commonwealth, 2 Va. App. 96, 99, 341
S.E.2d 400, 402 (1986).
In the case before us, the record contains Stafford's DMV
driver history record, correspondence from the DMV regarding his
status as a possible habitual offender, correspondence from the
DMV regarding the suspension of his license, the order declaring
Stafford to be an habitual offender, and the trial court order
restoring to Stafford the privilege to drive under a restricted
license. We hold that the record is sufficient in the absence of
a transcript or written statement to determine the merits of the
DMV's case. A DMV Transcript of Stafford's Driver History Record, duly
certified in accordance with Code § 46.2-215, is contained in the
record. The transcript, among other things, discloses the
following relevant entries: CONVICTED ON 10/02/84 DRIVING WHILE INTOX, 1ST
CONVICTED ON 05/01/88 DRIVING UNDER REVOCATION/SUSPENSION
CONVICTED ON 12/30/92 DRIVING WHILE INTOX, 1ST
CERTIFIED ON: 01/27/93 AS A POSSIBLE HABITUAL OFFENDER CHESAPEAKE CITY DISPOSITION: UNABLE TO SERVE
CERTIFIED ON: 04/13/94 AS A POSSIBLE HABITUAL OFFENDER VIRGINIA BEACH CITY DISPOSITION: DISREGARD/NEW ADDRESS
CERTIFIED ON: 01/30/95 AS A POSSIBLE HABITUAL OFFENDER
- 3 - CHESAPEAKE CITY DISPOSITION: LIC DENIAL PENDING
Following the receipt by the DMV of notice from the
Chesapeake General District Court that Stafford had been
convicted of driving while intoxicated, the DMV issued
certifications that Stafford's driving record indicated he was
possibly an habitual offender pursuant to Code § 46.2-352. The
January 27, 1993 certification could not be served. The April
13, 1994 certification was abandoned due to address problems.
The January 30, 1995 certification was served, a hearing was held
pursuant thereto, and Stafford was declared an habitual offender
on May 24, 1995. When validly issued, such certification requires that the
DMV deny Stafford issuance of a driver's license until the DMV
receives one of the following: (1) documentation from the
prosecutor's office stating that there is a valid reason not to
make a determination that the person is an habitual offender; (2)
a court order reversing the DMV certification; or (3) an order of
license restoration.
On April 25, 1996, Stafford petitioned the trial court to
"restore to him the privilege to operate a motor vehicle upon
such terms and conditions as the Court may prescribe." The trial
court granted him a restricted license to drive to and from his
place of employment and a substance abuse program in an order
dated July 31, 1996. The DMV contends that the trial court's
order was entered contrary to and not in accord with statutes
- 4 - permitting such relief. We agree.
Stafford contends that subparagraph 2 of Code § 46.2-360
authorized the trial court to grant the relief contained in its
July 31, 1996 order. Code § 46.2-360(2) provides, in relevant
part, that after three years from the date a person has been
declared an habitual offender such person may be granted a
restricted license upon a showing that at the time of the
declaration he was addicted to alcohol, that "he is no longer
addicted to or psychologically dependent on the use of alcohol . . .," and that "the defendant does not constitute a threat to
the safety and welfare of himself and others with regard to the
driving of a motor vehicle." Simply put, the DMV contends that
three years have not passed since the entry of the habitual
offender order 2 and, therefore, the trial court did not have
legal authority to issue a restricted license.
Stafford responds that he was eligible for restoration of
his license by the trial court because the last paragraph of Code
§ 46.2-360 contains the following provision: In the computation of the . . . three-year period[ ] under subdivision[ ] . . . 2 of this section, such person shall be given credit for any period his driver's license was administratively revoked under § 46.2-391 prior to the final order or notification by the Commissioner of the habitual offender
2 The habitual offender declaration was made on May 24, 1995.
The trial court's order from which this appeal emanates was
entered on July 31, 1996.
- 5 - determination.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES MEMORANDUM OPINION* v. Record No. 2012-96-1 BY JUDGE JOSEPH E. BAKER JULY 15, 1997 GARY WAYNE STAFFORD
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE V. Thomas Forehand, Jr., Judge Eric K. G. Fiske, Assistant Attorney General (James S. Gilmore, III, Attorney General, on briefs), for appellant.
Allen J. Gordon for appellee.
On May 24, 1995, Gary Wayne Stafford (Stafford) was declared
an habitual offender by the Circuit Court of the City of
Chesapeake (trial court) and ordered not to operate a motor
vehicle for a period of ten years from the date of the order or
until his privilege to drive "has been restored by Order of a
Court of record entered in a proceeding in accordance with law
pursuant to the statutes made and provided." On July 31, 1996,
the trial court issued Stafford a restricted license to drive to
his place of employment and substance abuse program. In this
appeal from the July 31, 1996 order, the Commonwealth of
Virginia, Department of Motor Vehicles (DMV) contends that the
trial court was without legal authority to grant a restricted
____________________
*Pursuant to Code § 17-116.010 this opinion is not designated for publication. license to Stafford because neither the ten-year prohibition
period nor the requirements of Code § 46.2-360 1 had been met.
Stafford asserts that we should not consider the issue
presented by this appeal because the DMV (1) did not preserve the
issue for appeal and (2) failed to provide this Court with a
transcript of the proceedings below, or a written statement of
facts in lieu thereof. We have reviewed the record and find that
the issue presented here was contained in the DMV's motion to
dismiss made in the trial court and there denied. Stafford further contends that because of the DMV's failure
to timely file a transcript or written statement of facts, this
matter should be dismissed without further consideration. See
Rule 5A:8; Barrett v. Barrett, 1 Va. App. 378, 339 S.E.2d 208
(1986). The filing of a transcript is not mandatory, and the
failure to file a transcript does not per se foreclose our
consideration of an appeal. Wolfe v. Commonwealth, 6 Va. App.
640, 643, 371 S.E.2d 314, 315 (1988). "If the record on appeal
is sufficient in the absence of the transcript to determine the
1 Code § 46.2-360 sets forth the requirements for restoration of
the privilege of operating a motor vehicle to a person who has
been adjudicated an habitual offender where the adjudication was
based in part and dependent on a conviction for driving or
operating a motor vehicle while under the influence of
intoxicants.
- 2 - merits of the appellant's allegation, we are free to proceed to
hear the case." Turner v. Commonwealth, 2 Va. App. 96, 99, 341
S.E.2d 400, 402 (1986).
In the case before us, the record contains Stafford's DMV
driver history record, correspondence from the DMV regarding his
status as a possible habitual offender, correspondence from the
DMV regarding the suspension of his license, the order declaring
Stafford to be an habitual offender, and the trial court order
restoring to Stafford the privilege to drive under a restricted
license. We hold that the record is sufficient in the absence of
a transcript or written statement to determine the merits of the
DMV's case. A DMV Transcript of Stafford's Driver History Record, duly
certified in accordance with Code § 46.2-215, is contained in the
record. The transcript, among other things, discloses the
following relevant entries: CONVICTED ON 10/02/84 DRIVING WHILE INTOX, 1ST
CONVICTED ON 05/01/88 DRIVING UNDER REVOCATION/SUSPENSION
CONVICTED ON 12/30/92 DRIVING WHILE INTOX, 1ST
CERTIFIED ON: 01/27/93 AS A POSSIBLE HABITUAL OFFENDER CHESAPEAKE CITY DISPOSITION: UNABLE TO SERVE
CERTIFIED ON: 04/13/94 AS A POSSIBLE HABITUAL OFFENDER VIRGINIA BEACH CITY DISPOSITION: DISREGARD/NEW ADDRESS
CERTIFIED ON: 01/30/95 AS A POSSIBLE HABITUAL OFFENDER
- 3 - CHESAPEAKE CITY DISPOSITION: LIC DENIAL PENDING
Following the receipt by the DMV of notice from the
Chesapeake General District Court that Stafford had been
convicted of driving while intoxicated, the DMV issued
certifications that Stafford's driving record indicated he was
possibly an habitual offender pursuant to Code § 46.2-352. The
January 27, 1993 certification could not be served. The April
13, 1994 certification was abandoned due to address problems.
The January 30, 1995 certification was served, a hearing was held
pursuant thereto, and Stafford was declared an habitual offender
on May 24, 1995. When validly issued, such certification requires that the
DMV deny Stafford issuance of a driver's license until the DMV
receives one of the following: (1) documentation from the
prosecutor's office stating that there is a valid reason not to
make a determination that the person is an habitual offender; (2)
a court order reversing the DMV certification; or (3) an order of
license restoration.
On April 25, 1996, Stafford petitioned the trial court to
"restore to him the privilege to operate a motor vehicle upon
such terms and conditions as the Court may prescribe." The trial
court granted him a restricted license to drive to and from his
place of employment and a substance abuse program in an order
dated July 31, 1996. The DMV contends that the trial court's
order was entered contrary to and not in accord with statutes
- 4 - permitting such relief. We agree.
Stafford contends that subparagraph 2 of Code § 46.2-360
authorized the trial court to grant the relief contained in its
July 31, 1996 order. Code § 46.2-360(2) provides, in relevant
part, that after three years from the date a person has been
declared an habitual offender such person may be granted a
restricted license upon a showing that at the time of the
declaration he was addicted to alcohol, that "he is no longer
addicted to or psychologically dependent on the use of alcohol . . .," and that "the defendant does not constitute a threat to
the safety and welfare of himself and others with regard to the
driving of a motor vehicle." Simply put, the DMV contends that
three years have not passed since the entry of the habitual
offender order 2 and, therefore, the trial court did not have
legal authority to issue a restricted license.
Stafford responds that he was eligible for restoration of
his license by the trial court because the last paragraph of Code
§ 46.2-360 contains the following provision: In the computation of the . . . three-year period[ ] under subdivision[ ] . . . 2 of this section, such person shall be given credit for any period his driver's license was administratively revoked under § 46.2-391 prior to the final order or notification by the Commissioner of the habitual offender
2 The habitual offender declaration was made on May 24, 1995.
The trial court's order from which this appeal emanates was
entered on July 31, 1996.
- 5 - determination.
Stafford asserts that when the DMV, on January 27, 1993,
certified him as "a possible habitual offender," it thereby
"administratively suspended [Stafford's] driver's license."
Therefore, pursuant to Code § 46.2-360, Stafford contends he
- 6 - should be given credit for the time elapsed between January 27,
1993 and the May 24, 1995 habitual offender order. We disagree.
Code § 46.2-391, referenced in the last paragraph of Code
§ 46.2-360, applies to an administrative revocation where a
person "is adjudged to be a second offender in violation of . . .
§ 18.2-266 pertaining to driving under the influence of . . .
intoxicants." Code § 46.2-391 (emphasis added). Although the
DMV transcript shows that Stafford was twice convicted for
driving while intoxicated, it does not disclose that he has been
charged or "adjudged to be a second offender" as provided in the
Virginia Code. See Code §§ 46.2-391, 18.2-270, 18.2-271.
Therefore, he is not entitled to the credit in the last paragraph
of Code § 46.2-360.
The trial court's restoration of Stafford's license was not
in accord with the specific language and requirements of the code
provisions applicable to this case. Because Stafford has failed
to show that three years have elapsed since the date the habitual
offender order was entered, the trial court was without legal
authority to issue a restricted driver's license to him.
Accordingly, for the reasons stated, we reverse the judgment
of the trial court and dismiss Stafford's petition. Reversed and dismissed.
- 7 -