CW, DMV v. Keith Wallace

• Court: Court of Appeals of Virginia
• Decided: March 2, 1999
• Docket: 0195981
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and Senior Judge Overton ∗ Argued at Norfolk, Virginia

COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES OPINION BY v. Record No. 0195-98-1 JUDGE RICHARD S. BRAY MARCH 2, 1999 KEITH WALLACE

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge

Jeffrey A. Spencer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.

Joseph M. DuRant (Cumming, Hatchett & Jordan, on brief), for appellee.

Keith Wallace (Wallace) was administratively declared an

habitual offender by the Commissioner (Commissioner) of the

Department of Motor Vehicles (DMV) in accordance with Code

§ 46.2-352(A), and his privilege to operate motor vehicles was

revoked by attendant order. Upon notification of the order,

Wallace petitioned the trial court pursuant to Code

§ 46.2-352(B), seeking a "judicial hearing and determination

. . . that [he] is not an habitual offender."

Following an ore tenus hearing, the court found that one among the three predicate convictions necessary to Wallace's

∗ Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1. habitual offender determination "arose out of a suspension for

nonpayment of costs and fines" and that "payment had been made."

Relying upon Code § 46.2-355(iii), the court concluded that

Wallace was "not an habitual offender" and restored his

privileges. DMV appeals, arguing that Code § 46.2-355(iii)

permits such relief only when "all of the convictions . . . used

as 'qualifying offenses' to determine the individual an habitual

offender" are exempted from consideration by the statute. We

agree and reverse the disputed order of the trial court.

It is uncontroverted that Wallace had previously been

convicted of three separate offenses which, together, facially

identified him as an habitual offender in accordance with Code

§ 46.2-351. 1 As a result, Code § 46.2-352 directed the

Commissioner to "cause the [DMV] records to indicate that

[Wallace had] been determined to be an habitual offender and

________________ 1 In pertinent part, Code § 46.2-351 defines an habitual offender as

any resident or nonresident person whose record . . . shows that he has accumulated . . . convictions . . . for separate offenses, committed within a ten-year period, . . . as follows: 1. Three or more convictions, . . . singularly or in combination of the following separate offenses arising out of separate acts:

* * * * * * *

c. Driving a motor vehicle while his license, permit, or privilege to drive . . . has been suspended or revoked . . . .

- 2 - . . . revoke [his] driver's license for the period of time

specified in § 46.2-356." Code § 46.2-352(A). In further

compliance with the statute, the Commissioner was required to

"immediately notify [Wallace] of the revocation and of his right

to file a petition and request a hearing" before "the circuit

court . . . for . . . determination by the court that [Wallace]

is not an habitual offender." Code § 46.2-352.

Wallace elected to pursue judicial review and initiated the

instant proceeding by petition in the trial court. Evidence at

the related hearing disclosed a conviction in the New Kent County

General District Court for "Driving Under Revocation Or

Suspension," a violation of Code § 46.2-395, as one of the three

offenses indispensable to the Commissioner's determination that

Wallace was an habitual offender. See Code § 46.2-351(1)(c).

The evidence further established that the New Kent County

conviction was "based on a suspension that occurred for failing

to pay fines and costs, . . . now paid."

Relying upon Code § 46.2-355(iii), 2 Wallace argued before

the trial court that a person is not an habitual offender if one

2 Code § 46.2-355 provides, in pertinent part, that

[i]f . . . the court finds that the person . . . (iii) has qualifying offenses based solely upon convictions as set out in subdivision 1 c of § 46.2-351 resulting from a suspension or revocation ordered pursuant to § 46.2-395 for failure to pay fines and costs . . . and has paid in full all outstanding fines, costs and judgments, . . . relating to such convictions, the court shall enter an order finding that the person is not

- 3 - of the "qualifying offenses" specified by Code § 46.2-351(1)(c)

was predicated upon a conviction which arose from a suspension or

revocation exempted by statute. The trial court agreed, finding

Code § 46.2-355(iii) "ambiguous as to whether [it] applied to all

qualifying offenses or any one of the qualifying offenses," and

restored Wallace's privilege to drive as a result of the single

New Kent County conviction. On appeal, DMV asserts that Code

§ 46.2-355(iii) clearly provides relief from an habitual offender

determination only when all "qualifying offenses" were

convictions dependent upon those suspensions or revocations

specifically embraced by the statute.

Assuming, without deciding, that Code § 46.2-355(iii) is

ambiguous, the basic tenets of statutory construction require us

to "ascertain and give effect to legislative intent." Branch v.

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)

(citations omitted). A statute must be construed "to give

reasonable effect to the words used" and to further its remedial

purposes. Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458

S.E.2d 305, 307 (1995) (citation omitted). Proper construction

seeks to harmonize the provisions of a statute both internally, see Mejia v. Commonwealth, 23 Va. App. 173, 176-77, 474 S.E.2d

866, 868 (1996) (en banc), and in relation to other statutes.

________________

an habitual offender and, unless otherwise prohibited, restoring his privilege to drive.

(Emphasis added).

- 4 - See Newton v. Commonwealth, 21 Va. App. 86, 90, 462 S.E.2d 117,

119 (1995).

We recognize that, "[a]lthough [an habitual offender

determination] is a civil proceeding, its effect is to impose a

forfeiture . . . [and,] [t]herefore, the operative statute must

be strictly construed against the Commonwealth." Hoye v.

Commonwealth, 12 Va. App. 587, 589, 405 S.E.2d 628, 629 (1991).

However, strict construction cannot thwart clear legislative

intent or justify an absurd result. See Gwaltney v.

Commonwealth, 19 Va. App. 468, 475, 452 S.E.2d 687, 691 (1995).

The words chosen by the legislature in drafting a statute

derive meaning from both definition and context and, therefore,

we divine legislative intent by construing an enactment as a

whole, together with companion statutes, if any. The legal

maxim, noscitur a sociis, instructs that "a word takes color and

expression from the purport of the entire phrase of which it is a

part, and . . . must be read in harmony with its context."

Turner v. Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337, 339

(1983). Similarly, legislative purpose can best be "'ascertained

from the act itself when read in the light of other statutes

relating to the same subject matter.'" Moreno v. Moreno, 24 Va.

App. 190, 197, 480 S.E.2d 792, 796 (1997) (citation omitted).

The doctrine of pari materia teaches that "'statutes are not to

be considered as isolated fragments of law, but as a whole, or as

parts of a great, connected homogenous system, or a simple and

- 5 - complete statutory arrangement.'" Id. at 198, 480 S.E.2d at 796

(citation omitted).

Code § 46.2-355 is an integral component to a legislative

scheme intended

to provide maximum safety for all persons using the highways; to deny the 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). Code § 46.2-351 identifies those convictions arising

from unlawful conduct deemed inconsistent with this legislative

purpose. Thus, Code § 46.2-355 is properly read only when

juxtaposed with Code § 46.2-351 and companion enactments.

Accordingly, the parties acknowledge that the "qualifying

offenses" contemplated by Code § 46.2-355(iii) are those

violations specified in Code § 46.2-351 which define the putative

habitual offender then before the court. By describing such

"qualifying offenses" plurally, the legislature clearly intended

to include all predicate offenses which brought the person within the purview of Code § 46.2-351. In this context, we consider the

entire statutory phrase, "has qualifying offenses based solely

upon convictions as set out in subdivision 1 c of § 46.2-351

resulting from a suspension or revocation ordered pursuant to

- 6 - § 46.2-395 for failure to pay fines and costs . . . ." Code

§ 46.2-355(iii) (emphasis added). Thus, properly construed, the

statute provides that no person may be declared an habitual

offender when all "qualifying offenses" resulted from convictions

specified in Code § 46.2-351(1)(c), provided the underlying

suspension or revocation in each instance resulted from

nonpayment of fines and costs, now fully satisfied. 3

This construction of Code § 46.2-355(iii) is made more

apparent by Code § 46.2-361(B), a companion statute which

provides that "[a]ny person who has been found to be an habitual

offender . . . based entirely upon convictions as set out in

[Code § 46.2-351(1)(c)], may, after payment in full of all

outstanding fines [and] costs relating to his determination,

. . . petition the court" for restoration of privileges. Code

§ 46.2-361(B) (emphasis added). In contrast, "[a]ny person who

has been found . . . an habitual offender . . . based in part and

dependent on a conviction as set out in [Code § 46.2-351(1)(c)]"

may not petition for restoration for three years from the final

order. Code § 46.2-361(A) (emphasis added); see Commonwealth v. Lynn, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1999);

Commonwealth v. Brown, 28 Va. App. 781, 787, 508 S.E.2d 916, 919

(1999). Thus, consonant with Code § 46.2-355(iii), Code

§ 46.2-361(B) provides a procedure to immediately restore the

3 "[F]ailure to furnish proof of financial responsibility," additional conduct embraced by Code § 46.2-355(iii), is not in issue.

- 7 - privileges of any person already declared an habitual offender

whenever all "qualifying convictions" resulted from a failure to

pay fines and costs and such obligations are subsequently paid

and satisfied. 4

The trial court, therefore, erroneously determined that

Wallace, a person with only one "qualifying offense" contemplated

by Code § 46.2-355(iii), was not an habitual offender.

Accordingly, we reverse the order and remand the proceedings to

the trial court for disposition consistent with this opinion.

Reversed and remanded.

4 Under Wallace's construction of Code § 46.2-355(iii), Code § 46.2-361(A) would require a person wrongfully determined an habitual offender to wait three years for restoration, an absurd result.

- 8 -