Present: Carrico, C.J., Compton, Stephenson, Hassell, and Keenan, 

JJ., Poff, Senior Justice, and Cochran, Retired Justice 

JOSEPH M. SIMMONS 

 OPINION BY 

v. Record No. 951916 CHIEF JUSTICE HARRY L. CARRICO 

 September 13, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO 

Rudolph Bumgardner, III, Judge 

 This appeal presents the question whether the trial court 

erred in holding that neither res judicata nor collateral estoppel1

bars a court from suspending a person's operator's license for one 

year for his refusal to take a blood or breath alcohol test when 

he has already suffered a seven-day administrative suspension for 

the same refusal.2

 Finding that the trial court did not err, we 

will affirm. 

 The seven-day administrative suspension was made pursuant to 

Code § 46.2-391.2, which provides in pertinent part that if a 

person refuses to submit to a breath test in violation of Code 

§ 18.2-268.3, his license shall be suspended immediately for seven 

days. Section 18.2-268.3, referred to in § 46.2-391.2, prescribes 

the procedures to be followed if a person, after having been 

arrested for driving under the influence, refuses to permit blood 

or breath samples to be taken for chemical tests to determine the 

 

 1The defendant in this case uses the term "estoppel by 

judgment"; however, we prefer the term "collateral estoppel." 

Bates v. Devers, 214 Va. 667, 671 n.5, 202 S.E.2d 917, 921 n.5 

(1974). 

 2Because a charge of unreasonably refusing to submit to a 

blood or breath test is not criminal but administrative and civil 

in nature, an appeal lies directly from the trial court to this 

Court. Commonwealth v. Rafferty, 241 Va. 319, 323-24, 402 S.E.2d 

17, 20 (1991). 
alcohol or drug content of his blood. Section 18.2-268.4 provides 

that if a person is found guilty of violating § 18.2-268.3, the 

court shall suspend his privilege to drive for a period of one 

year, in addition to the administrative suspension imposed under 

§ 46.2-391.2. 

 The record shows that on February 16, 1995, the defendant, 

Joseph M. Simmons, upon his refusal to submit to a blood or breath 

test, was served with a notice of administrative suspension 

pursuant to § 46.2-391.2, and his license was "taken" for a period 

of seven days. He was also charged in a warrant with refusing to 

permit the taking of a breath sample to determine the alcohol 

content of his blood. In general district court, the defendant 

was found guilty as charged in the warrant, and his operator's 

license was suspended for a period of one year. On a de novo 

appeal to circuit court, he was again found guilty, and his 

license was again suspended for a period of one year. 

 Citing Wright v. Wright, 164 Va. 245, 252, 178 S.E. 884, 886 

(1935), the defendant correctly points out that for res judicata

to bar the prosecution of a second action, the judgment in the 

former action must have been rendered on the merits by a court of 

competent jurisdiction and the parties and the matters in 

controversy must be the same in the two actions. The defendant 

also correctly points out that the plea of res judicata and the 

plea of collateral estoppel, while not identical, "are based upon 

similar principles of law, namely the conclusiveness of judgments 

of the Court, and the effect of a judgment as estoppel." The 

difference between the two pleas, the defendant notes, lies in 
what is concluded by the first judgment. Under res judicata, the 

first judgment bars the parties and their privies not only from 

relitigating the issues actually determined but also from 

litigating those that might have been determined; under collateral 

estoppel, only those issues actually litigated and determined are 

concluded. Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 

920-21 (1974). 

 Here, the defendant argues that "the issue is the same, 

namely that the defendant refused to take the breath or blood 

test." That issue, the defendant opines, "has already been 

decided by a Court of competent jurisdiction" in the form of the 

administrative suspension of his license for seven days. 

Therefore, the defendant concludes, the administrative suspension 

"is res judicata and estoppel and the Commonwealth should be 

estopped from taking a person's Operator's License for twelve 

months for refusing to take a breath or blood test after having 

taken the Operator's License administratively for seven days for 

the same act." 

 The difficulty with the defendant's argument is that by his 

own statement of the doctrines of res judicata and collateral 

estoppel, the establishment of a prior judgment rendered by a 

court of competent jurisdiction is a condition precedent to the 

allowance of any plea in bar asserting either doctrine. Yet, by 

no stretch of the imagination can it be said that an 

administrative suspension of an operator's license for failure to 

take a blood or breath test is a judgment rendered by a court of 

competent jurisdiction. What is involved is neither more nor less 
than the term administrative suspension implies, an administrative 

act, not a judgment by a court of competent jurisdiction. 

 Accordingly, we hold that the suspension by the trial court 

of the defendant's operator's license for one year was not barred 

by the earlier administrative suspension of the license for seven 

days, and we will affirm the judgment of the trial court. 

Affirmed.