Opinion
47079 No. 0071-90-4
Decided June 4, 1991
(1) Motor Vehicles — Habitual Offenders — Standard. — Although an habitual offender adjudication is a civil proceeding, its effect is to impose a forfeiture; therefore, the operative statutes must be strictly construed against the Commonwealth.
Raymond J. Morley, Jr. (Pfitzner Morley, on briefs), for appellant.
Janet F. Rosser, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
SUMMARY
Defendant was adjudicated an habitual offender pursuant to Code Sec. 46.2-351. He argued that one of his prior convictions did not fall within the purview of Code Sec. 46.2-351 (Circuit Court of Fairfax County, Thomas S. Kenny, Judge).
The Court of Appeals affirmed, holding that Code Sec. 18.2-271(E) expressly provided that the defendant's 1988 conviction was a violation of Code Sec. 46.1-350 and Chapter 727 of the Acts of Assembly (1989) expressly translated the reference to Code Sec. 46.1-350 to Code Sec. 46.2-301, a violation expressly embraced within the scope of Code Sec. 46.2-351.
Affirmed.
OPINION
By order of December 21, 1989, the appellant, Richard Allan Hoye, was "declared an habitual offender pursuant to Section 46.2-351 of the 1950 Code of Virginia." This determination was based on proof that the appellant had suffered the following convictions: (1) March 18, 1988 — driving while intoxicated in violation of the Fairfax County Code Sec. 82-4-17; (2) November 28, 1988 — driving while intoxicated in violation of Code Sec. 18.2-266; and (3) November 28, 1988 — operating a motor vehicle in violation of court ordered restricted license, in violation of Code Sec. 18.2-271.1.
(1) Code Sec. 46.2-351, as it existed on December 21, 1989, defined an habitual offender as follows:
An habitual offender shall be any . . . person [who] has accumulated the convictions . . . described in this subsection . . .
1. Three or more convictions . . . of the following . . . offenses:
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b. Driving or operating a motor vehicle while under the influence of intoxicants or drugs in violation of Sec. 18.2-266;
c. Driving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked in violation of Sections 18.2-272, 46.2-301 or Sec. 46.2-302;
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3. The offenses included in subdivisions 1 and 2 of this section shall be deemed to include offenses under any valid county, city, or town ordinance paralleling and substantially conforming to the state statutory provisions cited in subdivisions 1 and 2 of this section and all changes in or amendments thereof, and any federal law, any law of another state or any valid county, city, or town ordinance of another state substantially conforming to the aforesaid state statutory provisions.
Although this is a civil proceeding, its effect is to impose a forfeiture. Therefore, the operative statute must be strictly construed against the Commonwealth.
The appellant's two convictions for driving while intoxicated are embraced within Code Sections 46.2-351(1)(b) and 46.2-351(3). He argues that his conviction for operating a motor vehicle in violation of Code Sec. 18.2-271.1 does not fall within the purview of Code Sec. 46.2-351, because there is no reference therein to Code Sec. 18.2-271.1. He concedes that Code Sec. 18.2-271.1(E) provides that any person who operates a motor vehicle in violation of the restrictions of a license issued pursuant to Code Sec. 18.2-271.1 shall be guilty of a violation of former Code Sec. 46.1-350, but argues that Code Sec. 46.2-351 also makes no reference to former Code Sec. 46.1-350.
Chapter 727 of the Acts of Assembly (1989) repealed Title 46.1 of the Code of Virginia and enacted Title 46.2. The act provided in pertinent part:
That whenever any of the conditions, requirements, provisions, or contents of any section, article, or chapter of Title 46.1 or any other title of this Code as such titles existed prior to October 1, 1989, are transferred in the same or modified form to a new section, article, or chapter of this title or any other title of this Code and whenever any such former section, article, or chapter is given a new number in this or any other title, all references to any such former section, article, or chapter of Title 46.1 or other title appearing in this Code shall be construed to apply to the new or renumbered section, article, or chapter containing such conditions, requirements, provisions, contents, or portions thereof. 1989 Va. Acts 1926.
Code Sec. 18.2-271.1(E) expressly provided that the appellant's November 28, 1988 conviction for operating a motor vehicle in violation of restrictions imposed by Code Sec. 18.2-271.1 was a violation of Code Sec. 46.1-350. The quoted provision of the 1989 Acts translates that reference to Code Sec. 46.2-301, a violation expressly embraced within the scope of Code Sec. 46.2-351. Therefore, the trial court acted properly in considering that conviction in adjudging the appellant an habitual offender.
The judgment of the trial court is affirmed.
Affirmed.
Duff, J., and Moon, J., concurred.