Kenneth Lee Barden v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and O’Brien
PUBLISHED
Argued at Alexandria, Virginia
KENNETH LEE BARDEN
OPINION BY
v. Record No. 1027-14-4 JUDGE ROSSIE D. ALSTON, JR.
MAY 12, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge
Bonnie H. Hoffman, Deputy Public Defender (Office of the Public
Defender, on briefs), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Kenneth Barden (“appellant”) appeals his conviction of driving under a suspended or
revoked license, in violation of Code § 46.2-301, because the evidence adduced at trial failed to
establish that his driver’s license was suspended or revoked at the time he was operating a motor
vehicle. For the reasons expressed below, we agree and reverse appellant’s conviction under
Code § 46.2-301(B).
BACKGROUND
The facts in this matter are not in dispute. On November 6, 2013, appellant was driving
in Loudoun County when he was stopped by Officer Clark McDaniel. During the course of the
stop, Officer McDaniel used the computer in his patrol car to access appellant’s Department of
Motor Vehicles (“DMV”) record, which listed appellant’s driver’s license status as “revoked.”
When asked whether he possessed a driver’s license, appellant responded that he did not.
Appellant was arrested and subsequently charged with driving on a suspended or revoked
license, in violation of Code § 46.2-301(B).1
At appellant’s bench trial, the Commonwealth introduced appellant’s DMV record as an
exhibit. The transcript reflects that on February 15, 2008, appellant was convicted of driving
while intoxicated, a first offense, and that the trial court suspended his driver’s license for a
period of twelve months. Shortly thereafter, upon receipt of appellant’s conviction order, the
Commissioner of the DMV, pursuant to Code § 46.2-389,2 revoked appellant’s license for a term
ending on February 8, 2009.
According to his transcript, appellant was again convicted of driving while intoxicated on
February 25, 2008. As before, the trial court suspended appellant’s license for twelve months,
and the Commissioner revoked appellant’s license upon receipt of appellant’s conviction order.
Appellant’s transcript lists the “term” of this revocation as February 18, 2009.
In addition to the two periods of revocation, appellant’s transcript lists five separate
suspensions (each for an indefinite period) incurred by appellant for failing to pay fines and court
1
Code § 46.2-301(B) states, in pertinent part,
[N]o resident or nonresident (i) whose driver’s license, learner’s
permit, or privilege to drive a motor vehicle has been suspended or
revoked or (ii) who has been directed not to drive by any court or
by the Commissioner, or (iii) who has been forbidden, as
prescribed by operation of any statute of the Commonwealth or a
substantially similar ordinance of any county, city or town, to
operate a motor vehicle in the Commonwealth shall thereafter
drive any motor vehicle or any self-propelled machinery or
equipment on any highway in the Commonwealth until the period
of such suspension or revocation has terminated or the privilege
has been reinstated or a restricted license is issued pursuant to
subsection E.
2
Under Code § 46.2-389(A) the Commissioner is required to revoke “the driver’s license
of any resident . . . on receiving a record of his conviction” of driving while intoxicated, among
other crimes. Code § 46.2-389(B) provides that the revocation shall last “for one year.”
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costs associated with prior court proceedings (including appellant’s two convictions for driving
while intoxicated).3 During trial, appellant introduced receipts proving that he paid in full his
past due fines and court costs relating to all of the prior convictions approximately two months
before he was stopped by Officer McDaniel. Appellant testified, however, that he had not paid
any reinstatement fees; nor had he applied for a new or renewal driver’s license at the time he
was stopped.
At the close of the evidence, appellant argued that he was not driving on a suspended or
revoked license when he was stopped by Officer McDaniel because the periods of suspension
and revocation had ended. According to appellant, his indefinite suspensions terminated upon
payment of his past due fines and court costs, while each of his revocations expired on set dates
prior to when he was stopped – February 8, 2009 and February 18, 2009, respectively. Because
Code § 46.2-301(B) penalizes driving only during the period of suspension or revocation,
appellant asserted that the evidence was insufficient to support his conviction. Appellant further
asserted that his failure to reapply for a new or renewal license had no bearing on whether the
periods of suspension and revocation ended prior to when he was stopped. At most, appellant
contended that he was guilty of violating Code § 46.2-300, which punishes as a Class 2
misdemeanor any person who drives without a valid license on a highway in the Commonwealth.
Following the parties’ closing arguments, the trial court convicted appellant of driving
after his privilege was suspended or revoked. In reaching its decision, the trial court noted that
Code § 46.2-100 draws a distinction between suspension and revocation: While the trial court
recognized some “merit to [appellant’s] argument about suspension – the idea that . . . it might be
3
Because appellant’s numerous suspensions were largely coterminous, we refer
throughout this opinion to a singular period of suspension rather than multiple, overlapping
periods of suspension. We follow the same approach when referencing appellant’s period of
revocation.
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self-curing, that you pay and you no longer have that suspension because it was only suspended
indefinitely until you pay,” the trial court found no support for appellant’s argument that a
revocation terminated prior to restoration of one’s driver’s license. Relying on appellant’s DMV
transcript, which identified appellant’s then-status as revoked, the trial court found appellant
guilty of driving on a revoked license.
This appeal followed.
ANALYSIS
Appellant contends that the trial court erred by finding the evidence sufficient to support
his conviction of driving under a suspended or revoked license. According to appellant, his
license was neither suspended nor revoked when he was stopped by Officer McDaniel. This is
so, appellant says, because the period of his license suspension terminated upon payment of his
outstanding court costs, and his period of revocation ended years prior to his arrest for driving
under a revoked license. Although appellant concedes that he did not formally reapply to have
his license reinstated or renewed after the term of his suspension and revocation ended, he
contends that his failure to reapply for a reinstated license is immaterial to his conviction under
Code § 46.2-301(B), because “the revocation provisions [of Chapter 3 of Title 46.2] separate the
termination of the revocation from the reinstatement of one’s [license]” and “revocation must
end before reinstatement may occur.” Appellant’s Br. at 12. In other words, appellant asserts
that, although he was an unlicensed driver at the time he was stopped,4 he was not guilty of
driving under a revoked license because Code § 46.2-301(B) penalizes driving on a suspended or
revoked license only “until the period of suspension or revocation has terminated,” id. at 4, and
4
See Code § 46.2-300 (treating driving without a valid license as a Class 2
misdemeanor).
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both periods expired before the date of his stop. Accordingly, appellant contends that the
Commonwealth did not meet its burden of proving a violation of Code § 46.2-301(B).
In response, the Commonwealth contends that the suspension and revocation of
appellant’s license remained in effect at the time of his arrest, because “a suspension or
revocation does not end automatically by operation of law, but instead continues until a new
license is applied for and issued.” Commonwealth’s Br. at 8. According to the Commonwealth,
this conclusion follows primarily from Code § 46.2-411(C), which states that “[an] order of
suspension or revocation shall remain in effect and the driver’s license, . . . shall not be reinstated
and no new driver’s license, . . . shall be issued or granted unless such person, in addition to
complying with all other provisions of law, pays to the Commissioner a reinstatement fee.”5
Because the Commissioner was not permitted to issue appellant a new or renewal license until
appellant satisfied these statutory prerequisites, which appellant admittedly did not complete
following the terms of his suspension and revocation, the Commonwealth asserts that appellant’s
suspension and revocation remained in effect at the time of his stop.
The issue presented in this appeal raises a question of statutory construction, which we
review de novo. Kirby v. Commonwealth, 63 Va. App. 665, 669, 762 S.E.2d 414, 416 (2014).
Our review is guided by well-settled principles.
“It is one of the fundamental rules of construction of statutes that
the intention of the legislature is to be gathered from a view of the
whole and every part of the statute taken and compared together,
giving to every word and every part of the statute, if possible, its
due effect and meaning, and to the words used their ordinary and
5
The Commonwealth cites also to Code § 46.2-411.1, which requires “written
confirmation” that the person whose license was suspended or revoked as a result of a conviction
for driving while intoxicated “successfully completed” an alcohol safety action program, and
Code § 46.2-412, which provides, in relevant part, that “[e]very suspension or revocation shall
remain in effect and the Commissioner shall not issue any new or renewal license . . . until
permitted under the provisions of [Chapter 3 – Licensure of Drivers].”
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popular meaning, unless it plainly appears that they were used in
some other sense. If the intention of the legislature can be thus
discovered, it is not permissible to add to or subtract from the
words used in the statute.”
Shreve v. Commonwealth, 44 Va. App. 541, 546-47, 605 S.E.2d 780, 782 (2004) (quoting Posey
v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918)). We are also mindful that a
proceeding under Code § 46.2-301 is criminal, and violations are punished as misdemeanors.
Accordingly, Code § 46.2-301 “‘must be strictly construed against the state and limited in
application to cases falling clearly within the language of the statute.’” Davis v. Commonwealth,
12 Va. App. 246, 248, 402 S.E.2d 711, 712 (1991) (quoting Crews v. Commonwealth, 3
Va. App. 531, 536, 352 S.E.2d 1, 3 (1987)).
Code § 46.2-301(B) prohibits an individual whose driver’s license has been suspended or
revoked from driving “until the period of such suspension or revocation has terminated or the
privilege has been reinstated or a restricted license is issued.” In other words, this statutory
provision criminalizes driving only during the period in which one’s driver’s license is
suspended or revoked. See Paduano v. Commonwealth, 64 Va. App. 173, 180, 766 S.E.2d 745,
748 (2014) (“‘Courts are required to apply the plain language of a statute when possible and may
not rewrite it.’” (quoting Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007))). It
follows no less clearly from Code § 46.2-301(B)’s plain language that license suspensions and
revocations have defined beginnings and endings; that is the natural import of the phrase “the
period of . . . suspension or revocation.”
Moreover, those periods of suspension and revocation come about independent of the
Commissioner’s reinstatement or renewal of one’s driver’s license. Code § 46.2-100 clarifies
this point. Under that provision, the legislature has defined “suspension” to “mean[] that the
document or privilege suspended has been temporarily withdrawn, but may be reinstated
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following the period of suspension” and “revocation” to “mean that the document or privilege
revoked is not subject to renewal or restoration except through reapplication after the expiration
of the period of revocation.” (Emphasis added). In other words, Code § 46.2-100 references the
reinstatement or renewal of a suspended or revoked license as an event separate from (and in this
context, subsequent to) the termination of the period of suspension or revocation. Thus, Code
§ 46.2-100 makes reinstatement or renewal of a driver’s license contingent upon the termination
of the period of suspension or revocation – not vice versa, as the Commonwealth contends.
Furthermore, to adopt the Commonwealth’s assertion – that a period of “suspension or
revocation . . . continues until a new license is applied for and issued” – would not only invert
this relationship but also conflate the Commissioner’s authority to suspend or revoke a license
with his distinct authority to issue a new or renewal license. While the issuance of a new or
renewal license is within the Commissioner’s broad discretion, see Code § 46.2-411(A) (stating
that the Commissioner may refuse to issue any new or renewal license to an individual whose
license has been suspended or revoked “whenever he deems . . . it necessary for the safety of the
public”), the Commissioner’s authority to suspend or revoke a driver’s license is strictly
circumscribed by statute, see generally Code § 46.2-410 (noting that suspension or revocation of
a license is mandatory in certain cases). In other words, the Commissioner’s authority to
suspend or revoke an individual’s driver’s license extends no further than the authorizing statute
permits.
As relevant here, Code § 46.2-389 mandated revocation of appellant’s license “for one
year” upon the Commissioner receiving a record from the trial court of appellant’s convictions
for driving while intoxicated. Appellant incurred both convictions in February 2008, the trial
court notified the Commissioner on both occasions within the same month, and the
Commissioner issued revocation orders shortly thereafter. Appellant’s period of revocation
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therefore lasted no later than February 2009. See App. at 68 (appellant’s DMV transcript
identifying the “term” of his revocations as February 8, 2009 and February 18, 2009,
respectively). Similarly, Code § 46.2-395(B) authorized suspension of appellant’s license upon
his failure to pay court costs and fines assessed against him by the trial court - but only until the
costs “ha[d] been paid in full.” The undisputed facts of this case establish that appellant paid in
full his assessed court costs and fines approximately two months prior to when he was stopped.
Accordingly, the periods of suspension and revocation assessed against appellant terminated
prior to when he was stopped by Officer McDaniel.
Although appellant concedes that he made no effort to acquire a new driver’s license
following the termination of the relevant periods of suspension and revocation, this failure had
no bearing on whether he violated Code § 46.2-301(B). The periods of suspension and
revocation terminated by operation of the same statutory provisions that first authorized them6 –
and appellant’s failure to complete the necessary steps to acquire a new license (those relied
upon by the Commonwealth on brief) concerns only whether appellant is validly permitted to
drive in the Commonwealth. See Code § 46.2-300 (punishing as a Class 2 misdemeanor any
person who drives any motor vehicle on any highway in the Commonwealth without a valid
license). This conclusion is apparent from the very statutory provision relied upon by the
6
The Commonwealth contests this point, asserting “that a suspension or revocation does
not end automatically by operation of law, but instead continues until a new license is applied for
and issued.” Commonwealth’s Br. at 8. In support of this contention the Commonwealth cites
Sears v. Commonwealth, 29 Va. App. 158, 510 S.E.2d 274 (1999).
We find the Commonwealth’s reliance on Sears misplaced. In Sears, which concerned
the habitual offender statute in place at that time, we concluded that a defendant’s privilege to
drive was not automatically restored simply “by the passage of the revocation period,” because
the court order suspending the defendant’s privilege to drive expressly prohibited the defendant
from driving “for a period of ten (10) years . . . and until [defendant’s] privilege . . . to operate a
motor vehicle . . . ha[d] been restored by [a court of record].” Id. at 161, 510 S.E.2d at 275
(emphasis added). Here, unlike Sears, the relevant statute prohibits driving only until the period
of suspension or revocation terminates or the privilege has been reinstated. Code § 46.2-301(B).
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Commonwealth. While Code § 46.2-411(C) states that an “order of suspension or revocation
shall remain in effect” until an individual “pays to the Commissioner a reinstatement fee,” Code
§ 46.2-302 provides that an individual who “has failed to pay a reinstatement fee, shall be tried
under [Code] § 46.2-300” - not, as here, under Code § 46.2-301(B).7
This is so because, while Code § 46.2-411(C) states that “[an] order of suspension or
revocation shall remain in effect,” it does not perpetuate the “period of suspension or revocation”
that is the focus of Code § 46.2-301(B). The termination of a period of suspension or revocation
precedes the reinstatement (or in the case of revocation, restoration) of one’s license. See Code
§ 46.2-100 (stating that a revoked license may be restored “through reapplication after the
expiration of the period of revocation” and a suspended license may be reinstated “following the
period of suspension” (emphasis added)). It is the termination of the period of suspension or
revocation that triggers an individual’s eligibility for reinstatement (or restoration). It makes
little sense, then, to suggest that the period of suspension or revocation continues until the
reinstatement fee is paid.
Moreover, Code § 46.2-411(C) grants to the Commissioner the discretion to waive
repayment of the reinstatement fee “[w]hen three years have elapsed from the termination date of
the order of suspension or revocation and the person has complied with all other provisions of
law.” (Emphasis added). Were we to assume that repayment of the reinstatement fee was
required before a period of suspension or revocation terminated, as the Commonwealth contends,
this provision would be meaningless. The Commissioner could never relieve an individual of
7
This is also true of Code § 46.2-411.1(A), which the Commonwealth cites on brief.
While Code § 46.2-411.1(A) precludes restoration of a driver’s license until the Commissioner
has received “written confirmation that the person has successfully completed [an alcohol safety
action program],” subsection (B) provides that any person who drives in the Commonwealth
before “successful completion of such program shall be guilty of a violation of [Code]
§ 46.2-300.”
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paying the reinstatement fee after “three years have elapsed from the termination of the date of
the order of suspension or revocation,” if the period of suspension or revocation terminated only
upon payment of the fee.
Our construction of the relevant statutory texts causes us to conclude that a period of
suspension or revocation terminates independent of reinstatement or renewal of one’s driver’s
license. Thus, we find that appellant’s failure to reapply for a new license or formally become a
reinstated licensee did not extend the periods of his suspension or revocation, as argued by the
Commonwealth. Accordingly, we hold that the evidence was insufficient to prove that appellant
drove a motor vehicle on any highway in the Commonwealth before “the period of [his]
suspension or revocation ha[d] terminated.” Code § 46.2-301(B). We therefore reverse
appellant’s conviction for driving on a suspended or revoked license in violation of Code
§ 46.2-301(B).
Because we hold that the evidence was insufficient to prove that appellant drove a vehicle
in violation of any existing period of suspension or revocation, we reverse the trial court’s
conviction of appellant under Code § 46.2-301(B).
Reversed.
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