Diggs v. Commonwealth

369 S.E.2d 199, 6 Va. App. 300, 4 Va. Law Rep. 2793, 1988 Va. App. LEXIS 54

• Court: Court of Appeals of Virginia
• Decided: May 17, 1988
• Docket: Record No. 0254-86-4
• Status: Published

Opinions

Opinion

ON REHEARING EN BANC

BARROW, J.

In this appeal of a traffic infraction we conclude that a person whose operator’s license has been suspended or revoked may not drive a moped¹ on a public highway.

Diggs was convicted of operating a moped on a public highway after his operator’s license had been revoked. When he was observed, his moped was being propelled by its motor, although footpedalling was required to initiate its motion.

Code § 46.1-350(a) prohibits driving “any motor vehicle or any self-propelled machinery or equipment on any highway” during a period of suspension or revocation of an operator’s license.² Since a moped is expressly excluded from the definition of a motor vehicle, Code § 46.1-1(15), its operation is prohibited by Code § 46.1-350 only if it is “self-propelled machinery or equipment.”

The words, “self-propelled machinery,” are not ambiguous. Words are ambiguous if they admit to “being understood in more than one way” or refer to “two or more things simultaneously.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). They may also be ambiguous if they are “difficult to comprehend,” “of doubtful import,” or lack “clearness and definiteness.” Id. The term, “self-propelled machinery” is none of these.

The meaning of “self-propelled machinery,” is clear and has only one meaning. “Self-propelled” is an adjective meaning “[containing its own means of propulsion . . . .” American Heritage Dictionary 1113 (2d College ed. 1982). Machinery refers to “[m] achines or machine parts collectively,” while a machine is “[a] system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective . . . .” Id. at 751.

According to these definitions, a moped is a “self-propelled” machine. Like a bicycle, it is a system of rigid bodies or parts formed and connected to direct energy in a predetermined manner to accomplish locomotion. Unlike a bicycle, it is equipped with a helper motor and, therefore, contains its own means of propulsion.

Since the words of the statute are clear and unambiguous, judicial construction is not required. Brown, 229 Va. at 321, 330 S.E.2d at 87. The general rules of statutory construction do not apply, and we may not “resort to legislative history and extrinsic facts” to interpret words whose meaning is clear. Id. We must “take the words as written” and give them their plain meaning. Id.

The appellant argues that the words, “self-propelled machinery or equipment” are ambiguous because they are too inclusive. But, broadly inclusive language in a statute is not ambiguous if the legislature’s objective requires such language. Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980).

Even if we were to accept Digg’s argument that the term is ambiguous, the legislative history supports our conclusion that a moped is “self-propelled machinery or equipment” for purposes of Code § 46.1-350(a). The General Assembly’s broad objective in using the language “self-propelled machinery or equipment” is apparent from the statute’s history. Immediately preceding the adoption of Code § 46.2-350(a) the Virginia Advisory Legislative Counsel recommended to the General Assembly that anyone whose operator’s license is suspended or revoked be prohibited from operating “any self-propelled farm machinery or construction equipment.” See Report of the Virginia Advisory Legislative Counsel, Safety of Virginia Highways, S. Doc. No. 8, at 7 (1963) (emphasis added). The General Assembly responded by amending Code § 46.1-350(a) to include “any self-propelled machinery or equipment” without the limitations of the modifying words “farm” or “construction.” This action demonstrated the legislature’s intent that the words “machinery” and “equipment” have their plain, even though broad, meaning.

This broad objective of the language in Code § 46.1-350(a) was not diminished by later legislative amendments to other parts of the motor vehicle laws. The exclusion of bicycles and mopeds from the definition of “motor vehicle” eliminated the requirements of registration and operators’ licenses for mopeds but did not alter their status as self-propelled machinery or equipment under Code § 46.1-350(a). See Code § 46.1-1(15). The increased use of mopeds has required the General Assembly to amend various parts of the motor vehicle code to either include or exclude mopeds from the application of those provisions. See, e.g., Code §§ 46.1-17, 46.1-171.1, 46.1-215.1, 46.1-229.1, 46.1-263. However, because the language “self-propelled machinery or equipment” was already sufficiently broad to accomplish the legislature’s objectives in Code § 46.1-350, it was not necessary to broaden its reach any further. Mopeds were included within its reach without the necessity of amendment.

Diggs contends that another provision of the motor vehicle code, Code § 46.1-171.1, demonstrates a legislative intent to treat a moped as something other than self-propelled machinery or equipment. Code § 46.1-171.1 authorizes the State Highway and Transportation Board to prohibit the use of interstate highways “by any or all . . . (1) Pedestrians, (2) persons riding bicycles or mopeds, (3) horse-drawn vehicles, (4) self-propelled machinery or equipment, and (5) animals led, ridden or driven on the hoof.” Diggs suggests that by listing “self-propelled machinery or equipment” separately from “persons riding bicycles or mopeds” the legislature intended to treat these categories as separate and distinguishable for purposes of Title 46.1. Therefore, he reasons that, since mopeds are listed separately from “self-propeiied machinery or equipment” in Code § 46.1-171.1, the category of “any self-propelled machinery or equipment” contained in Code § 46.1-350 does not include mopeds.

Since the language of Code § 46.1-350 is clear and unambiguous, we cannot use judicial construction to give it new meaning; however, if we were to look beyond the meaning of the language, we would not agree with Diggs’ analysis. The categories contained in Code § 46.1-171.1 are not mutually exclusive. A highway use described by one category may also be described by another. A “horse-drawn” vehicle may also be an animal “led, ridden or driven on the hoof.” Similarly, a “moped” may also be “self-propelled machinery or equipment.”

Other provisions of the motor vehicle code do not define “machinery” or “equipment” nor do they limit the definition of these terms in a way that would exclude mopeds. Diggs points to other provisions where these terms are used and contends that the manner of their use excludes mopeds.³ However, in each instance of their use the terms simply enumerate certain tangible personalty without attempting, either explicitly or implicitly, to define “machinery” or “equipment” or limit what may be included within their scope.

In addition, Virginia Attorney General opinions have consistently held, without contrary legislative response, that one whose license is suspended or revoked cannot legally operate a moped on public highways during the period of suspension or revocation. See Op. Va. Att’y Gen. 215-16 (Oct. 26, 1984); Op. Va. Att’y Gen. 265-67 (July 20, 1977); Op. Va. Att’y Gen. 251-52 (Oct. 2, 1975). Although the Attorney General’s opinions are not binding, Barber v. City of Danville, 149 Va. 418, 424, 141 S.E. (1928), they are persuasive, id., and may be used as an “aid in construing legislative intent.” Richard L. Deal & Assocs., Inc. v. Commonwealth, 224 Va. 618, 621, 299 S.E.2d 346, 348 (1983).

We conclude that, since the defendant was operating a moped being propelled by its motor, he was operating “self-propelled machinery or equipment” in violation of Code § 46.1-350; thus, we affirm his convictions.

Affirmed.

Baker, J., Coleman, J., Duff, J., Keenan, J., and Moon, J., concurred.

1 A moped is a “bicycle-like device with pedals and a helper motor . . . rated at no more than two brake horsepower and which produces speeds up to a maximum of thirty miles per hour.” Code § 46.1-1 (14b).

2 Section 46.1-350(a) of the Code of Virginia reads in part that:

[N]o person, resident or nonresident, whose driver’s license or instruction permit or privilege to drive a motor vehicle has been suspended or revoked . . . shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in this Commonwealth ....

3 See, e.g., Code § 46.1-47 (“[f]arm tractors, road rollers and road machinery used for highway purposes”); Code § 46.1-156 (“well-drilling machinery”); Code § 46.1-164 (equating “motor vehicles, trailers or semi-trailers” with “machinery”); Code § 46.1-315 (“well-drilling machinery”); Code 46.1-43 (“heavy construction equipment” and “other heavy equipment”); Code § 46.1-46 (“equating” equipment with “fire-fighting trucks, trailers and semitrailers,” “fire-fighting apparatus,” “vehicles” and “ambulances”); Code §§ 46.1-115(c) and 46.1-115.1 (“special permanent mounted equipment”); Code § 46.1-156(B) (defining “[specialized mobile equipment” as “self-propelled motor vehicle manufactured for a specific purpose”); and Code § 46.1-343.4 (equating “equipment” with “empty, oversize and overweight, rubber-tired, self-propelled haulers and loaders used in the construction and coal mining industries”).