COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, Virginia 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 2823-97-2 JUDGE LARRY G. ELDER 

 JANUARY 12, 1999 

WALTER ONASSIS BROWN 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Lee A. Harris, Jr., Judge 

 Jeffrey A. Spencer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 No brief or argument for appellee. 

 The Commonwealth appeals from an order entered pursuant to 

Code § 46.2-361(B) restoring the driving privileges of Walter 

Onassis Brown, previously declared a habitual offender by the 

Department of Motor Vehicles pursuant to Code § 46.2-352. The 

Commonwealth contends the circuit court lacked authority to order 

restoration of Brown's driving privileges under Code 

§ 46.2-361(B) because the convictions which led to the habitual 

offender determination did not meet the requirements of that code 

section. Rather, the predicate convictions were based at least 

in part on suspensions for failure to have insurance on a vehicle 

and operating a vehicle without insurance, suspensions not set 

out in Code § 46.2-361(C). For the reasons that follow, we agree 

with the Commonwealth's contentions and reverse the trial court's 

restoration of Brown's driver's license. 
- 2 - 

 

 I. 

 FACTS 

 On April 1, 1997, the Department of Motor Vehicles (DMV) 

declared Brown a habitual offender (H.O.) and revoked his driving 

privileges indefinitely, effective May 4, 1997. That H.O. 

declaration was based on Brown's three convictions for driving on 

a revoked or suspended license on 

 (1) November 22, 1995 (convicted February 28, 1996); 

(2) January 13, 1996 (convicted March 20, 1996); and 

(3) January 2, 1997 (convicted March 13, 1997). 

 At the time of each of these three driving offenses, three 

separate license suspensions were in effect against Brown:1

 (1) 1993 suspension for operating or permitting 

operation of an uninsured motor vehicle in 

violation of Code § 46.2-707; 

 (2) 1993 suspension for failure to respond to 

insurance monitoring request by providing name of 

insurance company after registering a motor 

vehicle and not paying the uninsured motor vehicle 

fee; 

 (3) 1994 suspension for failure to pay fine following 

conviction for improper exhaust system. 

 On September 3, 1997, Brown filed a "Petition for 

Restoration of Driving Privilege Habitual Offender." He checked 

block "D" on that form, requesting restoration pursuant to Code 

§ 46.2-361(B) and certifying that he 

 1 Three additional suspensions had been issued by the date 

of Brown's January 2, 1997 offense--the final offense providing 

the basis for Brown's April 1, 1997 H.O. declaration: two 

suspensions for failure to pay fines and one suspension for 

failure to attend the interview required for an alcohol safety 

action program. The Commonwealth did not rely on any of these 

suspensions at trial, and we do not consider them on appeal in 

assessing the propriety of the trial court's ruling. 
- 3 - 

 [had] been determined to be an habitual 

offender based entirely upon convictions of 

driving while my license or privilege to 

drive was suspended or revoked: 

 (i) for failure to pay fines and costs; 

or 

 (ii) for failure to furnish proof of 

financial responsibility; or 

 (iii) for failure to satisfy a 

judgment. 

 The Commonwealth moved to dismiss the petition on the ground 

that Brown was ineligible for restoration under Code 

§ 46.2-361(B). Following a hearing on the motion, the trial 

court concluded that "there's just no way to tell" on which 

license suspension or suspensions each of the three predicate 

offenses was based. It said that 

 [Brown] probably technically does not fall 

under the statute. However, it's enough 

question in my mind that I'm going to give 

him the benefit of the doubt. And one of the 

reasons is, if you look at the conviction 

from 2/28/96, it actually is not a valid 

conviction - I'm not saying it's not a valid 

conviction, but if you assume the law was 

followed under [Code § 46.2-301], then there 

was no license suspension or what have you, 

so I don't know what happened in there. In 

the scheme of things, I'm going to restore 

his privilege to operate if he meets any 

other requirements of DMV. 

Brown's counsel responded, "Yes, sir," and the trial court 

commented further, "But I think your argument, legally speaking, 

is a correct one." 

 II. 

 ANALYSIS 

 Code § 46.2-361(B) provides in relevant part as follows: 

 Any person who has been found to be an 
- 4 - 

habitual offender, where the determination or 

adjudication was based entirely upon 

convictions as set out in subdivision 1 c of 

§ 46.2-351, may, after payment in full of all 

outstanding fines, costs and judgments 

relating to his determination, and furnishing 

proof of financial responsibility, if 

applicable, petition [a specified] court 

. . . for restoration of his privilege to 

drive a motor vehicle in the Commonwealth. 

Id. (emphasis added). Code § 46.2-361(C) provides the following 

additional limitations: 

 This section shall apply only where the 

conviction or convictions as set out in 

subdivision 1 c of § 46.2-351 resulted from a 

suspension or revocation ordered pursuant to 

(i) § 46.2-395 for failure to pay fines and 

costs, (ii) § 46.2-459 for failure to furnish 

proof of financial responsibility, or (iii) 

§ 46.2-417 for failure to satisfy a judgment, 

provided [certain conditions have been met]. 

Because habitual offender proceedings are civil in nature and 

Brown petitioned the court for restoration of his license 

following proceedings declaring him a H.O., he bore the burden of 

proving by a preponderance of the evidence that he met the 

statutory conditions for restoration. See Dicker v. 

Commonwealth, 22 Va. App. 658, 661, 472 S.E.2d 655, 657 (1996) 

(citing Moffitt v. Commonwealth, 16 Va. App. 983, 986, 434 S.E.2d 

684, 687 (1993)). Under the statute, if any one of Brown's 

predicate convictions did not meet the requirements of subsection 

(C), he was not entitled to restoration of his driver's license. 

 We hold that at least one of Brown's convictions for driving 

on a revoked or suspended license did not meet the requirements 

of subsection (C) in that it was based on both (1) his October 
- 5 - 

19, 1993 license suspension under Code § 46.2-707 for operating 

an uninsured motor vehicle without first having paid the 

uninsured motor vehicle fee and (2) his December 9, 1993 license 

suspension under Code § 46.2-706 for failure to respond to an 

insurance monitoring request by furnishing proof of liability 

insurance. 

 We reject the argument Brown made in the trial court that 

the uninsured motorist fee is a fine or cost such that his 

suspensions under Code §§ 46.2-706 and 46.2-707 were for failure 

to pay fines or costs. Code § 46.2-361(C) specifically 

references a suspension "for failure to pay fines and costs" as 

occurring pursuant to "§ 46.2-395." Code § 46.2-395 specifically 

references "lawful fines, court costs, forfeitures, restitution 

and penalties," and it specifically includes "any fee assessed 

. . . under . . . § 18.2-271.1." It does not, however, 

incorporate §§ 46.2-706 or 46.2-707. Absent specific 

incorporation, we decline to hold that the uninsured motorist 

"fee of $500" is a "fine" or "court cost." Viewing the 

provisions of Code §§ 46.2-706 and 46.2-707 in context makes 

clear that the $500 is a "fee" payable in lieu of liability 

insurance and does not constitute a fine or court cost. 

 Because conviction for violation of a license suspension 

issued pursuant to Code §§ 46.2-706 or 46.2-707 is not one of the 

bases enumerated in Code § 46.2-361(C), Brown's H.O. 

determination was not based "entirely" upon convictions of the 
- 6 - 

type enumerated in subsection (B). That Brown was under one or 

more concurrent license suspensions which would qualify under 

Code § 46.2-361 did not negate the existence of the two 

indefinite license suspensions under Code §§ 46.2-706 and 

46.2-707, non-qualifying statutes. Code § 46.2-395(E), which 

permits suspension for failure to pay enumerated fines and court 

costs, specifically provides that 

 [i]f the court has suspended or revoked the 

driver's license for any lawful reason other 

than [failure to pay fines or costs under] 

this section, or the conviction is one for 

which revocation or suspension is required 

under any provision of this title [other 

than] this section, then the suspension 

permitted under this section shall be in 

addition to, and run consecutively with, the 

revocation or suspension [imposed pursuant to 

court order or any other provision]. 

Id. Therefore, the logical conclusion under these facts is that 

each of Brown's predicate convictions was for violating all three 

suspensions--his October 19, 1993 suspension for operating or 

permitting the operation of an uninsured motor vehicle; his 

December 9, 1993 suspension for failing to provide the name of 

his liability insurance company after registering a motor vehicle 

and not paying the uninsured motor vehicle fee; and his August 5, 

1994 suspension for failing to pay a fine. As discussed above, 

Brown, as the petitioner, bore the burden of proving by a 

preponderance of the evidence that his predicate convictions met 

the requirements for restoration. Because Brown presented no 

evidence on this point, he failed to meet his burden of proof. 
- 7 - 

 We also conclude that where a conviction for driving on a 

revoked or suspended license is based on an offense committed 

when the driver is under more than one suspension or revocation, 

it is rendered under all such suspensions and revocations. 

Although only a single conviction results from the act of 

driving, the statutory scheme does not permit a court to choose a 

particular suspension or revocation upon which to base a 

conviction. To hold otherwise would allow a court to give 

preferential treatment to people with suspensions or revocations 

both for violations that do not qualify for restoration under 

Code § 46.2-361(C) and for violations that do qualify under that 

statute. We conclude that the legislature could not have 

intended such a result. See, e.g., Branch v. Commonwealth, 14 

Va. App. 836, 839, 419 S.E.2d 422, 424 (1992) (holding that "a 

statute should never be construed so that it leads to absurd 

results"). 

 Under these standards, any one of the three predicate 

convictions upon which Brown's H.O. declaration was based could 

have been rendered against Brown if the only reason for 

suspension of his license had been his non-compliance under Code 

§§ 46.2-706 or 46.2-707. Therefore, Brown failed to prove that 

his H.O. adjudication was based entirely upon convictions 

permitting restoration under Code § 46.2-361. 

 This approach also finds support in a 1985 opinion issued by 

the Attorney General. See 1984-85 Va. Att'y Gen. Rep. 212. That 
- 8 - 

opinion interpreted an earlier version of Code § 46.2-361, Code 

§ 46.1-387.9:3, which permitted a habitual offender to petition 

for restoration of his license after five years but only where at 

least one of the predicate convictions resulted from violation of 

an order of suspension for failure to pay a fine.2

 Petitioner 

asserted that his third conviction was for the offense of driving 

while his license was suspended for failure to pay a fine. Rep. 

at 212. The Attorney General noted, however, that at the time of 

petitioner's third conviction, his license was under suspension 

"for two separate and independent reasons, each of which, 

standing alone, had resulted in suspension." Id. One of these 

suspensions was for failure to pay a fine, and the other was for 

failure to pay a judgment. Id. The Attorney General noted that 

petitioner bore the burden of proof and that, because of the dual 

suspensions, only one of which qualified for early restoration, 

 

 2 The version of Code § 46.1-387.9:3 applicable to the facts 

upon which the Attorney General issued an opinion provided: 

 Any person who has been found to be an 

habitual offender, where such adjudication 

was based in part and dependent upon a 

conviction as set out in § 46.1-387.2(a)(4), 

may, after the expiration of five years from 

the date of such adjudication, petition [a 

specified court] . . . for restoration of his 

privilege to operate a motor vehicle in this 

Commonwealth. However, this section shall 

apply only where the conviction set out in 

§ 46.1-387.2(a)(4) resulted from a suspension 

or revocation ordered pursuant to 

§ 46.1-423.3 for failure to pay fines and 

costs. 

1984 Va. Acts, ch. 660. 
- 9 - 

"it could not be said that the third conviction was for the 

offense of driving while the license was suspended merely for 

failure to pay a fine." Id. at 213. 

 After the Attorney General issued this opinion, the 

legislature expanded the scope of Code § 46.1-387.9:3 also to 

permit a habitual offender to petition for early restoration of 

his or her license where at least one of the predicate 

convictions involved failure to pay a judgment, see 1987 Va. 

Acts, ch. 334, or failure to furnish proof of financial 

responsibility, see 1985 Va. Acts, ch. 292. However, neither of 

these amendments nor any subsequent amendments to this code 

section resulted in abrogation of the underlying principle in the 

Attorney General's opinion that conviction during a period of 

suspension on both a qualifying and a non-qualifying basis is 

insufficient to permit early restoration. See 1989 Va. Acts, ch. 

727 (recodifying § 46.1-387.9:3 at § 46.2-361); 1992 Va. Acts, 

ch. 568; 1993 Va. Acts, chs. 291, 518, 687; 1995 Va. Acts, ch. 

799. 

 "The legislature is presumed to have had knowledge of the 

Attorney General's interpretation of the statute[], and its 

failure to make corrective amendments evinces legislative 

acquiescence in the Attorney General's view." Deal v. 

Commonwealth, 224 Va. 618, 622, 299 S.E.2d 346, 348 (1983). 

Therefore, "we conclude that the General Assembly approves [the 

relevant portion of] the Attorney General's construction." 
- 10 - 

Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161, 300 

S.E.2d 603, 605 (1983). Under the facts of this case, Brown is 

not eligible for restoration under Code § 46.2-361 because, at 

the time of each of his convictions, he was under two suspensions 

for offenses other than failure to pay fines or costs, failure to 

furnish proof of financial responsibility or failure to satisfy a 

judgment. 

 Furthermore, we find no other statutory basis supporting the 

trial court's restoration of Brown's license. The trial court 

appears to have based its decision to restore Brown's license in 

part on its belief that the validity of Brown's conviction for 

driving on a revoked or suspended license on November 22, 1995 

was suspect because no license suspension was imposed. Assuming 

without deciding that the court's conviction of Brown for 

violating Code § 46.2-301 required the court to suspend his 

license, the court's failure to do so rendered the H.O. 

determination--based in part on the suspect conviction--voidable 

only and, therefore, not subject to collateral attack. Where a 

habitual offender adjudication rests upon valid subject matter 

and personal jurisdiction and is not appealed, that adjudication 

becomes final and neither the adjudication nor the underlying 

convictions can be collaterally attacked. See Eagleston v. 

Commonwealth, 18 Va. App. 469, 471-72, 445 S.E.2d 161, 163 (1994) 

(in proceeding against accused for driving after being declared a 

habitual offender, rejecting collateral attack on validity of 
- 11 - 

habitual offender adjudication which rested in part on predicate 

conviction rendered under ordinance later declared invalid in 

unrelated proceeding). Therefore, even assuming a defect existed 

in the first predicate conviction supporting Brown's H.O. 

determination, no evidence indicates that Brown challenged the 

H.O. declaration on direct appeal or that the court rendering the 

H.O. determination lacked subject matter or personal 

jurisdiction. Therefore, the trial court lacked authority to 

revisit the validity of the underlying H.O. determination in the 

restoration proceedings. 

 The evidence proved affirmatively that Brown did not meet 

the requirements for restoration of his driving privileges under 

Code § 46.2-361, and the trial court was without jurisdiction to 

revisit the validity of the H.O. determination. Therefore, we 

hold that the trial court erred in granting Brown's petition for 

restoration of his driver's license. 

 Reversed.