COURT OF APPEALS OF VIRGINIA

Present: Judges Al ston, Chafin and O’Brien Argued at Alexandria, Virginia

KENNETH LEE BARDEN OPINION BY v. Record No. 1027-14-4 JUDGE ROSSIE D. ALSTON, JR. MAY 12, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF LOUDOUN COUNTY Burke F. McCahill, Judge Bonnie H. Hoffman, Deputy Public Defender (Office of the Public Defender, on briefs), for appellant. Kathleen B. Martin, Senior Assi stant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Kenneth Barden (“appellant”) appeals his conviction of driving under a suspended or revoked license, in violation of Code § 46.2-301, b ecause the evidence adduced at trial failed to

establish that his drive r’s license was suspended or revoked at the time he was operating a motor vehicle. For the reasons expressed below, we agree and reverse appe llant’s conviction under Code § 46.2-301(B).

BACKGROUND The facts in this matter are not in dispute. On November 6, 2013, appellant was driving in Loudoun County when he was stopped by Officer Clark McDaniel. During the course of the stop, Officer McDaniel used the computer in his patrol car to access appe llant’s Department of Motor Vehicles (“DMV”) record, which listed appe llant’s driver’s license status as “revoked.” When asked whether he possessed a driver’s li cense, appellant responded that he did not.PUBLISHED- 2 - Appellant was arrested and subsequently char ged with driving on a suspended or revoked license, in violation of Code § 46.2-301(B). 1 At appellant’s bench trial, the Commonwealth introduced appellant’s DMV record as an exhibit. The transcript reflects that on Febr uary 15, 2008, appellant was convicted of driving while intoxicated, a first offense, and that the trial court suspended his driver’s license for a period of twelve months. Shortly thereafter, upon receipt of appellant’s conviction order, the Commissioner of the DMV, pursuant to Code § 46.2-389, 2 revoked appellant’s license for a term ending on February 8, 2009. According to his transcript, appellant was ag ain convicted of drivi ng while intoxicated on February 25, 2008. As before, the trial court su spended appellant’s licen se for twelve months, and the Commissioner revoked appellant’s license upon receipt of appellant’s conviction order. Appellant’s transcript lists the “term” of this revoca tion as February 18, 2009. In addition to the two periods of revocation, appellant’s transcript lists five separate suspensions (each for an indefini te period) incurred by appellant for failing to pay fines and court

1 Code § 46.2-301(B) states, in pertinent part, [N]o resident or nonresident (i) whose driver’s lic ense, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked or (ii) who has been direct ed not to drive by any court or by the Commissioner, or (iii) who has been forbidden, as prescribed by operation of any st atute of the Commonwealth or a substantially similar ordinance of any county, city or town, to operate a motor vehicle in the Commonwealth shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in the Commonwealth until the period of such suspension or revocation has terminated or the privilege has been reinstated or a restrict ed license is issued pursuant to subsection E.

2 Under Code § 46.2-389(A) the Commissioner is required to revoke “the driver’s license of any resident . . . on receiving a record of hi s conviction” of driving while intoxicated, among other crimes. Code § 46.2-389(B) provides that th e revocation shall last “for one year.”- 3 - costs associated with prior court proceedings (i ncluding appellant’s two convictions for driving while intoxicated). 3 During trial, appellant introduced re ceipts proving that he paid in full his past due fines and court costs re lating to all of the prior convic tions approximately two months before he was stopped by Officer McDaniel. Appellant testified, however, that he had not paid any reinstatement fees; nor had he applied for a new or renewal driver’s license at the time he was stopped. At the close of the evidence, appellant argue d that he was not driv ing on a suspended or revoked license when he was stopped by Officer McDaniel because the periods of suspension and revocation had ended. According to appellan t, his indefinite suspensions terminated upon payment of his past due fines and court costs, wh ile each of his revocatio ns expired on set dates prior to when he was stopped – February 8, 2009 and February 18, 2009, respectively. Because Code § 46.2-301(B) penalizes driving only durin g the period of suspension or revocation, appellant asserted that the evidence was insuffici ent to support his convic tion. Appellant further asserted that his failure to reapply for a new or renewal license had no bearing on whether the periods of suspension and revoca tion ended prior to when he wa s stopped. At most, appellant contended that he was guilty of violati ng Code § 46.2-300, which punishes as a Class 2 misdemeanor any person who drives without a valid license on a highway in the Commonwealth. Following the parties’ closing arguments, the trial court convicted appellant of driving after his privilege was suspended or revoked. In reaching its decision, the trial court noted that Code § 46.2-100 draws a distinction between suspen sion and revocation: While the trial court recognized some “merit to [appellant’s] argument about suspension – the idea that . . . it might be

3 Because appellant’s numerous suspensions were largely coterminous, we refer throughout this opinion to a singular period of suspension rather than multiple, overlapping periods of suspension. We follow the same appr oach when referencing appellant’s period of revocation.- 4 - self-curing, that you pay and you no longer have th at suspension because it was only suspended indefinitely until you pay,” the trial court f ound no support for appellant’s argument that a revocation terminated prior to re storation of one’s driver’s lice nse. Relying on appellant’s DMV transcript, which identified appellant’s then-status as revoked, the trial court found appellant guilty of driving on a revoked license. This appeal followed.

ANALYSIS Appellant contends that the trial court erred by finding the evidence sufficient to support his conviction of driving under a suspended or revoked license. According to appellant, his license was neither suspended nor revoked when he was stopped by Officer McDaniel. This is so, appellant says, because the period of his li cense suspension terminated upon payment of his outstanding court costs, and his pe riod of revocation ended years pr ior to his arrest for driving under a revoked license. Although appellant concedes that he did not formally reapply to have

his license reinstated or rene wed after the term of his susp ension and revocation ended, he

contends that his failure to r eapply for a reinstated license is immaterial to his conviction under Code § 46.2-301(B), because “the revocation provisions [of Chapter 3 of Title 46.2] separate the

termination of the revocation from the reinstatem ent of one’s [license]” and “revocation must end before reinstatement may occur.” Appellant’s Br. at 12. In other wo rds, appellant asserts that, although he was an unlicensed driver at the ti me he was stopped, 4 he was not guilty of driving under a revoked license because Code § 46.2-301(B) penalizes driving on a suspended or revoked license only “until the period of suspensi on or revocation has terminated,” id. at 4, and

4 See Code § 46.2-300 (treating driving w ithout a valid license as a Class 2 misdemeanor).- 5 - both periods expired before the date of his stop. Accordingly, appellant contends that the

Commonwealth did not meet its burden of proving a violation of Code § 46.2-301(B). In response, the Commonwealth contends that the suspension and revocation of appellant’s license remained in effect at the time of his arrest, because “a suspension or revocation does not end automatically by operati on of law, but instead continues until a new license is applied for and issued.” Commonweal th’s Br. at 8. According to the Commonwealth, this conclusion follows primarily from Code § 46.2-411(C), which states that “[an] order of suspension or revocation shall remain in effect and the driver’s licen se, . . . shall not be reinstated and no new driver’s license, . . . shall be issu ed or granted unless such person, in addition to complying with all other provisions of law, pa ys to the Commissioner a reinstatement fee.” 5 Because the Commissioner was not permitted to i ssue appellant a new or renewal license until appellant satisfied these statutory prerequisites, which appellant admittedly did not complete following the terms of his suspension and revocat ion, the Commonwealth asserts that appellant’s suspension and revocation remained in effect at the time of his stop. The issue presented in this appeal raises a question of statutory construction, which we

review de novo . Kirby v. Commonwea lth, 63 Va. App. 665, 669, 762 S.E.2d 414, 416 (2014). Our review is guided by well-settled principles.

“It is one of the fundamental rules of construction of statutes that the intention of the legislature is to be gathered from a view of the whole and every part of the stat ute taken and compared together, giving to every word and every part of the statute, if possible, its due effect and meaning, and to the words used their ordinary and

5 The Commonwealth cites also to C ode § 46.2-411.1, which requires “written confirmation” that the person whos e license was suspended or revoke d as a result of a conviction for driving while intoxicated “s uccessfully completed” an alcohol safety action program, and Code § 46.2-412, which provides, in relevant part, that “[e]very suspension or revocation shall remain in effect and the Commissioner shall notissue any new or renewal license . . . until permitted under the provisions of [Chapter 3 – Licensure of Drivers].”- 6 - popular meaning, unless it plainly app ears that they were used in some other sense. If the intenti on of the legislature can be thus discovered, it is not permissible to add to or subtract from the words used in the statute.” Shreve v. Commonwealth, 44 Va. App. 541, 546-47, 605 S.E.2d 780, 782 (2004) (quoting Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 ( 1918)). We are also mindful that a proceeding under Code § 46.2-301 is criminal, and violations are punished as misdemeanors. Accordingly, Code § 46.2-301 “‘must be strictly construed against th e state and limited in application to cases falling clearly within the la nguage of the statute.’” Davis v. Commonwealth, 12 Va. App. 246, 248, 402 S.E.2d 711, 712 (1991) (quoting Crews v. Commonwealth, 3 Va. App. 531, 536, 352 S.E.2d 1, 3 (1987)). Code § 46.2-301(B) prohibits an individual whos e driver’s license has been suspended or revoked from driving “until the period of such suspension or revocation has terminated or the privilege has been reinstated or a restricted license is issued.” In other words, this statutory provision criminalizes driving only during the period in which one’s driver’s license is suspended or revoked. See Paduano v. Comm onwealth, 64 Va. App. 173, 180, 766 S.E.2d 745, 748 (2014) (“‘Courts are required to apply the plain language of a statute when possible and may not rewrite it.’” (quoting Parker v. Warre n, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007))). It follows no less clearly from Code § 46.2-301(B)’s plain language that license suspensions and revocations have defined beginning s and endings; that is the na tural import of the phrase “the period of . . . suspension or revocation.” Moreover, those periods of suspension and revocation come about independent of the

Commissioner’s reinstatement or renewal of one’s driver’s lic ense. Code § 46.2-100 clarifies this point. Under that provision, the legislature has defined “sus pension” to “mean[] that the document or privilege suspended has been te mporarily withdrawn, but may be reinstated- 7 - following the period of suspension ” and “revocation” to “mean th at the document or privilege revoked is not subject to renewal or re storation except thr ough reapplication after the expiration of the period of revocation .” (Emphasis added). In other words, Code § 46.2-100 references the reinstatement or renewal of a suspended or revoked license as an event separate from (and in this context, subsequent to) the termination of the period of suspension or revocation. Thus, Code § 46.2-100 makes reinstatement or renewal of a dr iver’s license continge nt upon the termination of the period of suspension or revocation – not vice versa, as the Commonwealth contends. Furthermore, to adopt the Co mmonwealth’s assertion – that a period of “suspension or

revocation . . . continues until a new license is applied for and issued” – would not only invert this relationship but also confla te the Commissioner’s authority to suspend or revoke a license with his distinct authority to issue a new or renewal license. While the issuance of a new or

renewal license is within the Commissioner’s broad discretion, see Code § 46.2-411(A) (stating that the Commissioner may refuse to issue any ne w or renewal license to an individual whose license has been suspended or revoked “whenever he deems . . . it necessary for the safety of the public”), the Commissioner’s authority to suspen d or revoke a driver’s license is strictly circumscribed by statute, see generally Code § 46.2-410 (noting that suspension or revocation of a license is mandatory in certain cases). In other words, the Comm issioner’s authority to suspend or revoke an individual’s driver’s license extends no further than the authorizing statute permits. As relevant here, Code § 46.2-389 mandated revocation of a ppellant’s license “for one year” upon the Commissioner receivi ng a record from the trial cour t of appellant’s convictions for driving while intoxicated. Appellant incurred both convictions in February 2008, the trial

court notified the Commissioner on both occas ions within the same month, and the Commissioner issued revocation orders shortly thereafter. Appellant’s period of revocation- 8 - therefore lasted no later than February 2009. See App. at 68 (appellant’s DMV transcript identifying the “term” of his revocati ons as February 8, 2009 and February 18, 2009, respectively). Similarly, Code § 46.2-395(B) au thorized suspension of appellant’s license upon his failure to pay court costs and fines assessed against him by the trial court - but only until the costs “ha[d] been paid in full.” The undisputed facts of this case establish that appellant paid in

full his assessed court costs and fines approximately two months prior to when he was stopped. Accordingly, the periods of suspension and revo cation assessed against appellant terminated prior to when he was sto pped by Officer McDaniel. Although appellant concedes that he made no effort to acquire a new driver’s license following the termination of the relevant periods of suspension and revo cation, this failure had no bearing on whether he violated Code § 46.2-301(B). The periods of suspension and revocation terminated by operation of the same st atutory provisions that first authorized them 6 – and appellant’s failure to complete the necessary steps to acquire a new license (those relied upon by the Commonwealth on brief) concerns only whether appellant is validly permitted to

drive in the Commonwealth. S ee Code § 46.2-300 (punishing as a Class 2 misdemeanor any person who drives any motor vehicle on any hi ghway in the Commonwealth without a valid license). This conclusion is apparent from the very statutory pr ovision relied upon by the

6 The Commonwealth contests this point, asse rting “that a suspension or revocation does not end automatically by operation of law, but inst ead continues until a new license is applied for and issued.” Commonwealth’s Br. at 8. In s upport of this contenti on the Commonwealth cites Sears v. Commonwealth, 29 Va. App. 158, 510 S.E.2d 274 (1999). We find the Commonwealth’s reliance on Sears misplaced. In Sears, which concerned the habitual offender statute in place at that time , we concluded that a defendant’s privilege to drive was not automatically restored simply “ by the passage of the revocation period,” because the court order suspending the defendant’s privile ge to drive expressly prohibited the defendant from driving “for a period of ten (10) years . . . and until [defendant’s] privilege . . . to operate a motor vehicle . . . ha[d] been restored by [a court of record] .” Id. at 161, 510 S.E.2d at 275 (emphasis added). Here, unlike Sears, the releva nt statute prohibits dr iving only until the period of suspension or revocation terminates or the privilege has been reinstated. Code § 46.2-301(B).- 9 - Commonwealth. While Code § 46.2-411(C) states th at an “order of su spension or revocation shall remain in effect” until an individual “pays to the Commissioner a reinstatement fee,” Code § 46.2-302 provides that an individua l who “has failed to pay a rein statement fee, shall be tried under [Code] § 46.2-300” - not, as here, under Code § 46.2-301(B). 7 This is so because, while Code § 46.2-411(C) states that “[an] order of suspension or revocation shall remain in effect,” it does not perp etuate the “period of su spension or revocation” that is the focus of Code § 46.2-301(B). The term ination of a period of suspension or revocation precedes the reinstatement (or in the case of revo cation, restoration) of one ’s license. See Code § 46.2-100 (stating that a revoked license ma y be restored “through reapplication after the expiration of the pe riod of revocation ” and a suspended license may be reinstated “ following the period of suspension ” (emphasis added)). It is the termination of th e period of suspension or revocation that triggers an indi vidual’s eligibility for reinstatement (or restoration). It makes little sense, then, to suggest that the period of suspension or revocation continues until the reinstatement fee is paid. Moreover, Code § 46.2-411(C) grants to the Commissioner the discretion to waive repayment of the reinstatement fee “[w]hen three years have elapsed from the termination date of the order of suspension or revocation and the person has complied w ith all other provisions of law.” (Emphasis added). Were we to assume that repayment of the reinstatement fee was required before a period of suspension or revoc ation terminated, as the Commonwealth contends, this provision would be meaningless. The Co mmissioner could never re lieve an individual of

7 This is also true of Code § 46.2-411.1(A) , which the Commonwealth cites on brief. While Code § 46.2-411.1(A) precludes restoration of a driver’s license until the Commissioner has received “written confirmation that the person has successfully completed [an alcohol safety action program],” subsection (B) provides that any person who drives in the Commonwealth before “successful completion of such program shall be guilty of a violation of [Code] § 46.2-300.”- 10 - paying the reinstatement fee after “three years have elapsed from the termination of the date of the order of suspension or revoca tion,” if the period of suspension or revocation terminated only upon payment of the fee.

Our construction of the relevantstatutory texts causes us to conclude that a period of suspension or revocation terminates independent of reinstatement or renewal of one’s driver’s license. Thus, we find that appella nt’s failure to reapply for a ne w license or formally become a reinstated licensee did not extend the periods of his suspension or revocation, as argued by the Commonwealth. Accordingly, we hold that the ev idence was insufficient to prove that appellant drove a motor vehicle on any highway in th e Commonwealth before “the period of [his] suspension or revocation ha[d] terminated.” Code § 46.2-301(B). We therefore reverse appellant’s conviction for drivi ng on a suspended or revoked licen se in violation of Code § 46.2-301(B).

Because we hold that the evidence was insuffici ent to prove that appellant drove a vehicle in violation of any existing period of suspensi on or revocation, we reve rse the trial court’s conviction of appellant under Code § 46.2-301(B).

Reversed.