COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Clements 

Argued at Richmond, Virginia 

VENESSA M. MONGER 

 MEMORANDUM OPINION* BY 

v. Record No. 1926-00-2 JUDGE JEAN HARRISON CLEMENTS 

 NOVEMBER 20, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Randall J. Trost (Randall J. Trost, P.C., on 

brief), for appellant. 

 Jeffrey A. Spencer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Venessa M. Monger appeals from an order of the trial court 

affirming the decision of the Department of Motor Vehicles 

declaring her an habitual offender pursuant to Code § 46.2-351.1 

On appeal, Monger contends the trial court erred (1) in ruling 

that the second and third convictions upon which the habitual 

offender determination was based resulted from offenses that arose 

"out of separate acts," within the meaning of Code § 46.2-351; (2) 

in ruling that Code § 46.2-351 did not violate the Equal 

Protection Clause; and (3) by not allowing the rebuttal testimony 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Code § 46.2-351 was repealed in 1999. 
of Officer Redd. Finding no error, we affirm the decision of the 

trial court. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of 

the proceedings as necessary to the parties' understanding of 

the disposition of this appeal. 

 Under well-settled principles of appellate review, we 

examine the evidence and all reasonable inferences fairly 

deducible therefrom in the light most favorable to the 

Commonwealth, the prevailing party below. Burlile v. 

Commonwealth, 32 Va. App. 796, 798, 531 S.E.2d 26, 27 (2000). 

In determining whether the trial court made an error of law, "we 

review the trial court's statutory interpretations and legal 

conclusions de novo." Timbers v. Commonwealth, 28 Va. App. 187, 

193, 503 S.E.2d 233, 236 (1998). 

 The facts relative to the matters before us are not in 

dispute. On November 25, 1992, Monger was convicted in the 

General District Court of Halifax County of driving under a 

suspended license on September 3, 1992, in violation of Code 

§ 46.2-301. On March 17, 1997, Monger was convicted in the 

General District Court of Halifax County of driving while 

intoxicated on October 25, 1996, in violation of Code 

§ 18.2-266, and of driving under a suspended license on October 

25, 1996, in violation of a Halifax local ordinance. The latter 

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two offenses occurred simultaneously. On April 3, 1997, the 

Department of Motor Vehicles declared Monger an habitual 

offender. Monger appealed to the trial court, which affirmed 

the determination. This appeal followed. 

I. HABITUAL OFFENDER DETERMINATION 

As pertinent to this case, an habitual offender is defined 

under Code § 46.2-351 as one who has accumulated within ten 

years: 

 1. Three or more convictions, . . . 

singularly or in combination, of the 

following separate offenses arising out of 

separate acts: 

* * * * * * * 

 b. Driving or operating a motor 

vehicle while under the influence of 

intoxicants or drugs in violation of 

§ 18.2-266 or subsection A of § 46.2-341.24; 

 c. Driving a motor vehicle while his 

license, permit, or privilege to drive a 

motor vehicle has been suspended or revoked 

in violation of §§ 18.2-272, 46.2-301, 

46.2-302, or former § 46.1-350 or 

§ 46.1-351; . . . . 

 Monger contends that, because her 1997 convictions for 

driving while intoxicated and driving under a suspended license 

resulted from offenses that occurred simultaneously during the 

same act of driving, they did not arise "out of separate acts," 

as required by Code § 46.2-351. Thus, she argues, for purposes 

of the Habitual Offender Act, her second and third convictions 

should count as only a single conviction. Accordingly, she 

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concludes, the trial court erred in affirming the Department of 

Motor Vehicles' determination that she is an habitual offender. 

 The Virginia Supreme Court addressed the same argument in 

Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971). 

There, the Court, in adopting the analysis used for a similar 

provision in the predecessor to Code § 19.2-294, said that "one 

occasion of driving an automobile may give rise to several acts 

and offenses and that the test of whether there are separate 

acts sustaining several offenses 'is whether the same evidence 

is required to sustain them.'" Id. at 24, 181 S.E.2d at 623-24 

(quoting Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 

336, 337 (1952)). Applying that test, the Court went on to hold 

that, for purposes of the Habitual Offender Act, defendant's 

convictions for driving under the influence and driving under a 

suspended license, although resulting from offenses that were 

committed at the same time, "arose 'out of separate acts'—one 

out of the act of driving under the influence and the other out 

of the act of driving on a suspended license." Id. at 24-25, 

181 S.E.2d at 624. "Therefore," the Supreme Court concluded, 

"the convictions must be counted individually as second and 

third convictions, thereby constituting the defendant an 

habitual offender." Id. at 25, 181 S.E.2d at 624. 

 Monger acknowledges on appeal that the instant case is 

squarely on point with Estes. She contends, however, that the 

Supreme Court implicitly overruled Estes in ruling in Padgett v. 

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Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389 (1980) (per 

curiam), that the language "the same act or acts" in Code 

§ 19.2-294.1 means the "same act or acts of driving." 

We do not share Monger's view. For one thing, the Supreme 

Court was asked in Padgett solely to interpret Code § 19.2-294.12

relative to a defendant who, as a result of a high speed chase 

across jurisdictional lines, was convicted of reckless driving 

in one venue and of driving while intoxicated in another. In 

order to give effect to the statute, the Supreme Court construed 

the statute's language, "'the same act or acts,' to mean 'the 

same act or acts' of driving and to contemplate a continuous, 

uninterrupted course of operation of a motor vehicle, without 

regard to the crossing of the boundary line between two 

localities." Id. at 761, 263 S.E.2d at 389-90. Without such a 

construction, the statute would be rendered essentially 

meaningless by the usual interpretation of "same act" that is 

utilized in Code § 19.2-294 and double jeopardy analyses. 

Furthermore, Code § 19.2-294.1 "deals only with the 

offenses of driving while intoxicated and reckless driving; it 

applies to no other criminal offenses." Lash v. County of 

 2

 Code § 19.2-294.1 provides, in pertinent part: 

Whenever any person is charged with 

[driving while intoxicated] and reckless 

driving growing out of the same act or acts 

and is convicted of one of these charges, 

the court shall dismiss the remaining 

charge. 

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Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853 (1992) (en

banc). It reflects the fundamental similarity of the two 

offenses, see Harris v. City of Virginia Beach, 19 Va. App. 214, 

216-17, 450 S.E.2d 401, 402 (1994) (noting that "the commonality 

of the underlying offending conduct . . . invokes the preclusive 

effect of the statute"), and creates, as to those two offenses, 

a "special case of the general policy against conviction for two 

statutory offenses growing from the same act which is announced 

by Va. Code § 19.2-294," John L. Costello, Virginia Criminal Law 

and Procedure § 27.1-1 (2nd ed. 1995). 

Consequently, we do not believe that the legislature or 

Supreme Court intended that the Supreme Court's interpretation 

in Padgett of Code § 19.2-294.1, limited in application as it 

was to the two offenses specified in that statute, should be 

extended to the offenses and statute now before us. 

Accordingly, we conclude that Padgett has not overruled Estes, 

implicitly or otherwise. This view is buttressed by the fact 

that this Court has, subsequent to Padgett, employed the Estes

test in cases involving driving offenses under Code § 19.2-294, 

see Slater v. Commonwealth, 15 Va. App. 593, 596, 425 S.E.2d 

816, 817-18 (1993); Treu v. Commonwealth, 12 Va. App. 996, 997, 

406 S.E.2d 676, 677 (1991), and rejected the idea of extending 

the Supreme Court's interpretation of Code § 19.2-294.1 in 

Padgett to Code § 19.2-294, cf. Slater, 15 Va. App. at 597, 425 

S.E.2d at 818 (Benton, J., dissenting). 

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Thus, following Estes, we conclude that Code § 46.2-351 

requires that the three convictions necessary for an habitual 

offender determination arise from three separate acts, rather 

than from three separate acts of driving, as Monger contends. 

Here, the record establishes that Monger was convicted of three 

separate offenses arising from three separate acts. We hold, 

therefore, that the trial court did not err in affirming the 

Department of Motor Vehicles' habitual offender determination. 

II. EQUAL PROTECTION CLAUSE 

 As pertinent here, Code § 46.2-351 provides: 

 Where more than one offense included in 

subdivision 1, 2, or 3 is committed within a 

six-hour period, multiple offenses shall, on 

the first such occasion, be treated for the 

purposes of this article as one offense 

provided the person charged has no record of 

prior offenses chargeable under this 

article. 

 Monger contends that this provision violates the Equal 

Protection Clause of the Fourteenth Amendment to the United 

States Constitution because it discriminates against those who 

have prior offenses under the Habitual Offender Act. We 

disagree. 

 As we stated in Salama v. Commonwealth, 8 Va. App. 320, 

322-23, 380 S.E.2d 433, 434 (1989) (citations and internal 

quotation marks omitted): 

 The fourteenth amendment does not 

prohibit classifications in legislative 

enactments. Legislative classifications 

are, however, subject to judicial review. 

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. . . [C]lassifications not involving 

fundamental rights or inherently suspect 

classifications will survive an equal 

protection challenge if they bear a 

reasonable relation to a legitimate 

governmental objective. This standard of 

review is highly deferential and such 

legislative classifications are presumed 

valid. Classifications will not be deemed 

unconstitutional just because they result in 

some statutory discrimination or inequality. 

 Monger acknowledges that the privilege of driving, while 

important, is not a fundamental right. See Lockett v. 

Commonwealth, 17 Va. App. 488, 491, 438 S.E.2d 497, 499 (1993). 

Accordingly, the appropriate legal standard for determining 

whether the statutory classification challenged by Monger 

violates the Equal Protection Clause is the "rational basis" 

test. See Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 103, 376 

S.E.2d 525, 534 (1989). "The rational basis test is satisfied 

'if the legislature could have reasonably concluded that the 

challenged classification would promote a legitimate state 

purpose.'" Id. at 104, 376 S.E.2d at 534 (quoting Exxon Corp. 

v. Eagerton, 462 U.S. 176, 196 (1983)). 

 It is within the public safety function of the legislature 

to pass laws determining who may or may not drive based upon a 

person's driving history and to treat those who repeatedly 

violate the law differently from those who do not. The purpose 

of the Habitual Offender Act is to protect the public by 

preventing those who repeatedly commit the offenses described in 

the Act from driving. See Nesselrodt v. Commonwealth, 19 Va. 

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App. 448, 450, 452 S.E.2d 676, 677 (1994) (en banc). Here, in 

enacting the subject provision of Code § 46.2-351, the 

legislature simply carved out an exception precluding the 

unintended result of having a driver with no prior qualifying 

convictions under the Habitual Offender Act adjudged an habitual 

offender solely on the basis of a single act of driving, rather 

than on his or her driving history. 

 We find that the challenged provision is rationally related 

to a legitimate government interest. We hold, therefore, that 

Monger's claim under the Equal Protection Clause of the United 

States Constitution is without merit. 

III. ADMISSIBILITY OF OFFICER REDD'S TESTIMONY 

At trial, the Commonwealth presented evidence of Monger's 

March 17, 1997 conviction of driving under a suspended license 

in violation of a Halifax local ordinance. Monger called 

Officer R.E. Redd, a narcotics investigator for the Town of 

South Boston, as a rebuttal witness. The following exchange 

took place between Monger's counsel and Redd: 

 Q. Officer, you work in the South 

Boston, Halifax area, correct? 

 A. That's correct. 

 Q. And in that connection, have you 

had occasion to be familiar with South 

Boston's ordinances? 

 A. Yes, sir, I have. 

 Q. And in that connection, you're 

aware of the fact that there are no 

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ordinances concerning traffic infractions of 

Halifax County? 

At that point, the Commonwealth objected. The trial court 

sustained the Commonwealth's objection, ruling that the 

testimony of the witness was not the appropriate method of 

proving the existence or nonexistence of the ordinance. 

 Monger contends the trial court erred in not permitting 

Redd to testify regarding the local ordinance that served as the 

basis for Monger's second qualifying offense under Code 

§ 46.2-351. Such testimony, Monger argues, should have been 

allowed because it would have rebutted the Commonwealth's prima

facie case that she had been convicted of three qualifying 

offenses. 

 Code § 8.01-386 provides the mechanism for the court to 

take judicial notice of a local ordinance. Monger, however, did 

not pursue this statutory method. Instead, she sought to prove 

the nonexistence of the ordinance by attempting to introduce the 

hearsay testimony of Officer Redd. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be 

disturbed on appeal in the absence of an abuse of discretion." 

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 

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(1988). We hold the trial court did not abuse its discretion by 

not allowing the hearsay testimony of Officer Redd.3 

 Accordingly, we affirm the decision of the trial court. 

 Affirmed.

 3

 Because it was never presented to the trial court, we do 

not address Monger's further argument that Redd should have been 

allowed to testify about the local ordinance because he was an 

expert witness. See Rule 5A:18. 

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