The mere passage of time does not end habitual offender status when the order requires restoration of driving privileges, the Court of Appeals says; defendant’s conviction for second or subsequent offense operating a motor vehicle after being declared a habitual offender is affirmed.
A September 1995 order declared defendant a habitual offender, prohibited him from operating a motor vehicle for ten years, and prohibited issuing him a driver’s license until his privilege to operate a motor vehicle is restored as provided by law. Early one evening in March 2011, a deputy sheriff observed defendant in the driver’s seat of a disabled vehicle in the middle of a county road. Defendant stated the vehicle had a bad fuel pump and he was on his way home from school. He provided a New York State Identification Card, or a learner’s permit. After denying his motion to strike, the trial court convicted defendant of second or subsequent offense driving after being declared a habitual offender and sentenced him to five years in prison with four years suspended.
On appeal defendant argues his habitual offender status ended in 2005 preventing conviction under Va. Code § 46.2-357. We disagree. Unlike Davis v. Commonwealth, 12 Va. App. 246 (1991), cited by defendant, the order declaring defendant a habitual offender expressly required restoration of his driving privileges as provided by law. Defendant presented no evidence of petitioning for restoration as required by § 46.2-356. The September 2005 order remained in full force and effect until his driving privilege was restored.
Hodges v. Commonwealth (Felton) No. 1866-12-4, Feb. 18, 2014; Frederick Cir. Ct. (Athey) Timothy S. Coyne for appellant; Donald E. Jeffrey II, Sr. AAG. VLW 014-7-047(UP), 4 pp.