Commonwealth of VA, DMV v. David L. Tice ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MOTOR VEHICLES
MEMORANDUM OPINION * BY
v. Record No. 1877-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 29, 2001
DAVID L. TICE
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Eric K.G. Fiske, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
No brief or argument for appellee.
The Department of Motor Vehicles (DMV) appeals from an order
entered pursuant to Code § 46.2-361(B) restoring the driving
privileges of David L. Tice, previously determined an habitual
offender by the Commissioner of the Department of Motor Vehicles.
The DMV contends that the trial court lacked authority to restore
Tice's driving privileges under Code § 46.2-361(B) because the
convictions which led to the habitual offender determination did
not meet the requirements of Code § 46.2-361(B). Because the
underlying conviction was for "insurance monitoring," a suspension
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
not delineated in Code § 46.2-361(C), we agree with DMV and
reverse the trial court's restoration of Tice's driver's license.
I.
On March 11, 1997, the Commissioner of the Department of
Motor Vehicles determined Tice to be an habitual offender and
revoked his driving privileges indefinitely. The habitual
offender determination was based upon three convictions for
"driving under revocation or suspension"; one conviction on
February 12, 1991 in Stafford County General District Court and
two convictions by Kentucky courts on January 30, 1997 and
July 12, 1997. At the time of all three convictions, Tice's
license had been suspended since July 27, 1990 for "insurance
monitoring," pursuant to Code § 46.2-706.
On June 6, 2000, Tice filed a Petition for Restoration of
Driving Privilege with the circuit court. Tice alleged that he
was seeking restoration under Code § 46.2-361(B). The DMV opposed
his motion contending that Tice did not meet the qualifications of
Code § 46.2-361(B) because his original suspension was for
"insurance monitoring." On July 17, 2000, the circuit court
entered an order restoring Tice's driving privileges. The DMV
appeals from that order.
II.
In seeking restoration of his driving privileges, Tice bore
the burden of proving by a preponderance of the evidence that he
met the statutory conditions. Commonwealth v. Brown, 28 Va.
- 2 -
App. 781, 786, 508 S.E.2d 916, 919 (1999). Code § 46.2-361(B)
provides:
Any person who has been found to be an
habitual offender, where the determination
or adjudication was based entirely upon a
combination of convictions of § 46.2-707 and
convictions as set out in subdivision 1 c of
former § 46.2-351, may, after payment in
full of all outstanding fines, costs and
judgments relating to his determination, and
furnishing proof of (i) financial
responsibility and (ii) compliance with the
provisions of Article 8 (§ 46.2-705 et seq.)
of Chapter 6 of this title or both, if
applicable, petition the court in which he
was found to be an habitual offender, or the
circuit court in the political subdivision
in which he then resides, for restoration of
his privilege to drive a motor vehicle in
the Commonwealth.
Code § 46.2-361(C) adds the following limitations:
This section shall apply only where the
conviction or convictions as set out in
subdivision 1 c of former § 46.2-351
resulted from a suspension or revocation
ordered pursuant to (i) § 46.2-395 for
failure to pay fines and costs, (ii)
§ 46.2-459 for failure to furnish proof of
financial responsibility, or (iii)
§ 46.2-417 for failure to satisfy a
judgment, provided the judgment has been
paid in full prior to the time of filing the
petition or was a conviction under
§ 46.2-302 or former § 46.1-351.
Thus, under the statute, if Tice's predicate conviction did
not meet the requirements of Code § 46.2-361(C), he was not
entitled to restoration of his driving privileges. See Brown,
28 Va. App. at 786, 508 S.E.2d at 919. We have previously held
that "conviction for violation of a license suspension issued
- 3 -
pursuant to Code §§ 46.2-706 or 46.2-707 is not one of the bases
enumerated in Code § 46.2-361(C)." Id. at 787, 508 S.E.2d at
919; see also Commonwealth v. Boone, 30 Va. App. 439, 442, 517
S.E.2d 275, 277 (1999). Thus, because Tice's driving privileges
were suspended for "insurance monitoring" under Code § 46.2-706,
his habitual offender determination does not fall within the
application of Code § 46.2-361(B). See id. Accordingly, we
hold that the trial court erred in granting Tice's petition for
restoration of his driving privileges.
Reversed.
- 4 -