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Practice Tips: Go behind offender's DMV file

Even though a man’s driving record showed he had one drunken driving conviction and two convictions for driving on a suspended license, he could not be adjudicated an habitual offender, a Prince George circuit judge has ruled.

The reason: a district court judge forgot to check a box on a summons at one of the earlier hearings.

Hopewell attorney J. Larry Palmer was defending a man at an habitual offender proceeding. The man’s record, certified by the Virginia Department of Motor Vehicles, showed that the man had the three convictions necessary to trigger habitual offender status.

But a review of the court records revealed a defect on one of the driving on a suspended license summonses, Palmer said.

According to Palmer, there were three boxes on the summons, where the judge could mark that a defendant has been found guilty, not guilty, or guilty of some lesser offense. In his client’s case, none of the boxes was marked, Palmer said.

At the habitual offender adjudication proceeding, Palmer argued that although the man had paid a $100 fine on the charge, it was impossible to determine whether he had been found guilty of driving on a suspended license or some lesser charge.

A conviction for a lesser offense would not count under the habitual offender statutes, Virginia Code § 46.2-351, et seq., Palmer noted.

The court agreed and dismissed the habitual offender proceeding.

The case underscores the importance of looking beyond the DMV record when defending against habitual offender proceedings, said Palmer.

Palmer observed that clerical errors are not uncommon, particularly in jurisdictions with sizable traffic court dockets.

And something as simple as an unmarked box can save a client, he said.

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