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VARGA v. COMMONWEALTH



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VARGA

v.

COMMONWEALTH


November 3, 2000

Record No. 992681

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice

JOHN JAMES VARGA

v.

COMMONWEALTH OF VIRGINIA


OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the trial
court in 1998 properly convicted a defendant of driving after
being declared an habitual offender under Code
? 46.2-357(A) (formerly Code ? 46.1-387.8), relying
upon a 1984 order by which the defendant was declared an habitual
offender.

BACKGROUND

By order entered on December 13, 1984, the
Circuit Court of Fairfax County, the trial court, declared John
James Varga an habitual offender pursuant to the provisions of
former Code ? 46.1-387.2.
[1] The order
stated, in pertinent part, that "John Varga, is hereby
DECLARED to be a Habitual Offender and [his] privilege to operate
a motor vehicle in the Commonwealth of Virginia, BE and is HEREBY
REVOKED."

On June 23, 1986, Varga was convicted of
driving after having been declared an habitual offender. He was
next convicted of driving while intoxicated on June 23, 1988. And
then, on August 29, 1994, Varga was again convicted of driving
after being adjudicated an habitual offender.

Thereafter, Varga took no steps to have his
driving privileges restored, but continued to operate a motor
vehicle on the public highways of the Commonwealth. On January 3,
1998, a police officer of the Fairfax County police department,
on routine patrol, observed the vehicle operated by Varga
drifting across both northbound lanes of travel. The officer
arrested Varga for driving while intoxicated.

Subsequently, Varga was indicted for driving
after being declared an habitual offender. Approximately four
days before trial, Varga moved to quash the indictment, arguing
that the 1984 order declaring him an habitual offender was no
longer effective because that order had been entered more than
ten years previously and it did not state that he would remain an
habitual offender until his privilege to drive was restored.
Varga contended that Code ? 46.2-356, which restricts the
issuance of a license to drive motor vehicles to a person
previously declared an habitual offender for a period of ten
years after being so declared, effectively limits the term of an
habitual offender order to a ten year period unless the express
terms of the order state otherwise. The trial court denied
Varga’s motion.

During a subsequent bench trial, Varga renewed
his motion to quash and, at the close of the Commonwealth’s
case, moved to strike the evidence.
[2]
In support of his motions, Varga essentially repeated his prior
arguments. The trial court denied both motions and convicted
Varga under Code ? 46.2-357(A) of driving after being
adjudicated an habitual offender. By order entered on June 8,
1998, the court sentenced Varga to imprisonment for a term of
five years.

Varga appealed to the Court of Appeals of
Virginia, contending that the trial court erred in denying his
motions to quash and to strike the Commonwealth’s evidence.
The Court of Appeals rejected Varga’s contentions and
affirmed the conviction in an unpublished memorandum opinion. Varga
v. Commonwealth
, Record No. 1490-98-4 (October 19, 1998). We
awarded Varga this appeal.

DISCUSSION

Code ? 46.2-357(A) defines the felony of
driving after being declared an habitual offender. In pertinent
part, Code ? 46.2-357(A) states that "[i]t shall be
unlawful for any person to drive any motor vehicle
. . . on the highways of the Commonwealth while the
revocation of the person’s driving privilege remains in
effect." Under Code ? 46.2-358, any person declared an
habitual offender "five years from the date of any final
order . . . may petition the court . . . for
restoration of his privilege to drive a motor vehicle" at
which time the court may "restore to the person the
privilege to drive . . . or . . . order that
the person be issued a restricted license to drive." See
also
Code ?? 46.2-359 to -361 (permitting at any time
the restoration of conditional driving privileges of certain
persons declared habitual offenders). In contrast, Code
? 46.2-356 states that a person declared an habitual
offender shall not be issued a license to drive "for a
period of ten years from the date of any [such] final order
. . . and . . . until the privilege of
the person to drive . . . has been restored by an order
of a court entered in a proceeding as provided in this
article." (Emphasis added.)

Varga relies primarily on Davis v.
Commonwealth
, 12 Va. App. 246, 402 S.E.2d 711 (1991), to
support his contention that the 1984 order declaring him an
habitual offender was no longer effective. In pertinent part, the
order in Davis stated: "The Court doth ADJUDGE,
ORDER, and DECREE that said Calvin Windell Davis is such an
‘habitual offender’ as is set forth in Section
46.1-387.2 of the Code of Virginia, 1950, as amended, and that
his driving privilege to operate a motor vehicle in this state is
revoked for a period of ten (10) years from the date of this
order." 12 Va. App. at 247 n.2, 402 S.E.2d at 712 n.2. The
Court of Appeals held that this order "revoked Davis’
license and prohibited him from driving for a period of ten
years." Id. at 249, 402 S.E.2d at 713. Varga argues
that Davis stands for the proposition that only in those
cases where the order contains additional language providing that
the order remains in force until the habitual offender’s
privilege to drive has been restored can a person be convicted of
driving after having been declared an habitual offender after the
ten-year period has expired. This is so, Varga asserts, because
the ten-year period in Code ? 46.2-356 implicitly restricts
the duration of the effectiveness of an habitual offender order
which does not contain express language extending the
effectiveness of the order until the person’s driving
privilege is restored or for some specific period of time in
excess of ten years.

In response, the Commonwealth asserts that the
habitual offender statutes authorize the appropriate courts to
revoke indefinitely the driving privilege of an habitual offender
and to restore that privilege at certain times and under certain
conditions. The Commonwealth further asserts that the ten-year
limitation for the issuance of an operator’s license to an
habitual offender contained in Code ? 46.2-356 does not
restrict that authority. We agree with the Commonwealth.

Reading the habitual offender statutes in
pari materia
, it is clear that once a person is declared an
habitual offender by order of a trial court, he retains that
status and loses his driving privilege for so long as the order
is effective. Thus, unless the trial court specifically limits
the duration of the effect of the order, as was the case in Davis,
the habitual offender status of the person so declared continues
until that person successfully petitions the court to have that
status removed and his privilege to drive restored under one of
the code sections permitting such petitions. See Manning
v. Commonwealth
, 22 Va. App. 252, 255-56, 468 S.E.2d 705, 707
(1996).

Code ? 46.2-356 does not restrict the
effectiveness of a trial court’s order declaring a person an
habitual offender to a period of ten years. To the contrary, by
use of the conjunctive "and," the statute is clear that
both the passage of ten years from the entry of the order
declaring the person an habitual offender and the
restoration of the privilege to drive by the trial court are
prerequisites to the issuance of a new, unrestricted license by
the Commissioner of the Department of Motor Vehicles. While a
person declared an habitual offender may successfully petition to
have his privilege to drive restored and obtain a license to
drive after this ten-year period, or sooner under the specific
circumstances contemplated by Code ?? 46.2-358 to
–361, the mere passage of the period of time required before
seeking to have that privilege restored does not act to vitiate
the effectiveness of the order which revoked that privilege
initially. Thus, we hold that, in the absence of express language
limiting the duration of the effect of the order declaring a
person an habitual offender, the order remains in force until
that person actually has his privilege to drive restored. In the
present case, Varga had not had his privilege to drive restored
and, thus, the 1984 order remained in effect. Accordingly, the
Court of Appeals correctly held that Varga was properly convicted
for driving after having been declared an habitual offender when
he drove his motor vehicle in 1998.

Our holding today ensures that the policies of
the habitual offender statutes can be effectuated by the orders
issued by Virginia courts. We have explained the purposes behind
the habitual offender statutes as follows:

Virginia’s Habitual Offender Act declared
it to be the policy of the state to provide maximum safety for
all persons using the highways; to deny the privilege of
operating motor vehicles to persons who by their record have
demonstrated their indifference to the safety of others and their
disrespect for the laws of the state and the orders of its
courts; to discourage repetition of criminal acts by individuals;
and to impose increased and added deprivation of the privilege to
operate motor vehicles upon habitual offenders who have been
convicted repeatedly of violations of traffic laws.

Whorley v. Commonwealth, 215 Va. 740,
745-46, 214 S.E.2d 447, 451 (1975).

CONCLUSION

For these reasons, we will affirm the judgment
of the Court of Appeals.

Affirmed.

FOOTNOTES:

[1] Subsequent to the entry of this
order, Title 46.1 was superseded by Title 46.2. Code
? 46.2-351, the successor statute to former Code
? 46.1-387.2, was subsequently repealed effective July 1,
1999; however, the status of persons declared habitual offenders
prior to that date was not affected by the repeal. Relevant to
the issue raised in this appeal, there is no material change
between the former and current versions of the statutes we
address in this opinion. Accordingly, we will refer herein to the
current version of these statutes.

[2] Varga pleaded guilty to the DWI charge and was
sentenced to incarceration for a term of twelve months on that
charge.

 

 

 

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