COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata 

Argued at Alexandria, Virginia 

MICHAEL BRIAN SHAFFER 

 OPINION BY 

v. Record No. 0344-00-4 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 5, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 Mark S. Gardner (Gardner, Maupin & Sutton, on 

briefs), for appellant. 

 Jeffrey A. Spencer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Appellant, Michael Brian Shaffer, appeals the circuit 

court's finding that it lacked jurisdiction to hear his appeal 

of a Department of Motor Vehicles order determining him to be an 

habitual offender under Code § 46.2-352. For the reasons that 

follow, we reverse. 

BACKGROUND

 Guided by well established principles, we review the 

evidence in the light most favorable to the Commonwealth, the 

party prevailing below. Juares v. Commonwealth, 26 Va. App. 

154, 156, 493 S.E.2d 677, 678 (1997). On September 2, 1999, 

Shaffer petitioned the Circuit Court of Stafford County for 

review of an order issued on July 15, 1997 by the Commissioner 
of the Department of Motor Vehicles (DMV) in which Shaffer was 

determined to be an habitual offender under former Code 

§ 46.2-352(A). By the same order, the Commissioner revoked 

Shaffer's driver's license effective August 17, 1997. 

 At the time the DMV determined Shaffer to be an habitual 

offender, Code § 46.2-352 provided, in pertinent part, as 

follows: 

A. [T]he Commissioner shall determine, from 

the Department's records, whether a person 

named therein qualifies as an habitual 

offender, as defined in § 46.2-351. Upon 

such determination, the Commissioner shall 

immediately cause the Department's records 

to indicate that the person has been 

determined to be an habitual offender and 

shall revoke the person's driver's 

license . . . . The Commissioner shall 

immediately notify the person of the 

revocation and of his right to file a 

petition and request a hearing as provided 

in subsection B. 

* * * * * * * 

B. At any time after receipt of the 

revocation notice, as provided for in 

subsection A, or after otherwise learning of 

the revocation, a person who has been 

determined to be an habitual offender may 

file, with the circuit court of the county 

or city in which he resides . . . a petition 

for a hearing and determination by the court 

that the person is not an habitual offender.1

(Emphasis added). 

 1

 Upon the filing of the petition for review, the revocation 

of the person's license was automatically suspended, pending a 

final determination by the circuit court as to the person's 

habitual offender status. Former Code § 46.2-352(B). 

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 The General Assembly repealed Code §§ 46.2-351 through 

-355, effective July 1, 1999. Shaffer filed his petition for 

review of his habitual offender status on September 2, 1999. 

The circuit court dismissed the appeal on November 30, 1999, 

holding as a matter of law that the circuit court's jurisdiction 

to hear the appeal had been terminated by the repeal of Code 

§ 46.2-352. 

ANALYSIS

 The right to operate a motor vehicle is a property right 

that cannot be taken away without due process of law. Bell v. 

Burson, 402 U.S. 535, 539 (1971); Walton v. Commonwealth, 255 

Va. 422, 428, 97 S.E.2d 869, 873 (1998). At a minimum, a person 

whose license to drive has been rescinded is entitled to a 

post-deprivation review. See generally Mackey v. Montrym, 443 

U.S. 1 (1979); Dixon v. Love, 431 U.S. 105 (1977). 

 In 1995, the General Assembly enacted amendments to the 

Habitual Offender Act, former Code §§ 46.2-351 through -355, 

allowing habitual offender determinations to be made initially 

by the DMV. Former Code § 46.2-352(A) provided the process by 

which the Commissioner should determine someone to be an 

habitual offender. In former Code § 46.2-352(B), the General 

Assembly granted a person declared to be an habitual offender 

the right to judicial review of that determination. Former Code 

§ 46.2-352(A) also required the Commissioner to notify persons 

determined to be habitual offenders that they had the right to a 

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review. However, the statute did not specify a time period 

within which a petition for review had to be filed. 

 In 1999, the General Assembly repealed sections 46.2-351 

though 46.2-355 of the Habitual Offender Act, including the 

process by which one could be determined an habitual offender 

and the process by which one could seek judicial review of that 

determination. In repealing the statute, the General Assembly 

did not state that the statute was repealed retroactively. 

Thus, it did not explicitly eliminate the right of those 

individuals found to be habitual offenders under former Code 

§ 46.2-352 to petition for judicial review. 

 The Commonwealth, nevertheless, argues that the 

legislature's repeal of the right to obtain judicial review of 

the DMV's determination of habitual offender status is effective 

retroactively and that the court did not err in dismissing 

Shaffer's appeal on the ground that it lacked jurisdiction to 

adjudicate it. We disagree. 

 As the Virginia Supreme Court noted in Ferguson v. 

Ferguson, 169 Va. 77, 192 S.E. 774 (1937): 

All authorities appear to approve of the 

rule that statutes will be presumed to have 

been intended by the legislature to be 

prospective and not retrospective in their 

action where a retrospective effect would 

work injustice and disturb rights acquired 

under the former law. Some courts take the 

view that since limitation laws apply only 

to the remedy, they are not within the 

principle that statutes should be given a 

prospective rather than a retrospective 

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construction . . . . The rule under 

consideration is not everywhere recognized. 

* * * * * * * 

There appears to be no good reason for 

excluding statutes of limitation, or 

remedial statutes, from the general rule, 

that retroactive or retrospective 

legislation is not favored, in the absence 

of any words expressing a contrary 

intention. . . . It is reasonable to 

conclude that the failure to express an 

intention to make a statute retroactive 

evidences a lack of such intention. 

. . . It is not to be presumed that the 

legislature intends to work an injustice. 

Id. at 85, 86-87, 192 S.E. at 776, 777. 

 In Ferguson, the statute in question changed the time to 

file a bill in equity to impeach a will from two years to one 

year. The Court held that the statute did not apply 

retroactively because, "[t]here is nothing in the language of 

the amended statute to declare or to indicate that the 

legislature intended to give to it a retroactive operation." 

Id. at 85, 192 S.E. at 776; cf. Allen v. Mottley Constr. Co., 

160 Va. 875, 889, 170 S.E. 412, 417 (1933) (the General 

Assembly's use of the term "an award" in the new statute of 

limitation demonstrated an intent for the limitation to apply 

retroactively to awards made prior to the passing of the 

statute); Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570 (1948) 

(limitation law applied retroactively where statute clearly 

stated retroactive intent); see also McIntosh v. Commonwealth, 

213 Va. 330, 331-32, 191 S.E.2d 791, 792-93 (1972) (finding that 

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amendment to Habitual Offender Act should not be applied 

retroactively where no indication of legislative intent to do 

so). We decline to apply the statutory repeal retroactively 

absent an expressed intent by the legislature to deprive the 

formerly adjudicated habitual offenders of their right to obtain 

judicial review, particularly when the right in question is a 

property right, entitled to due process protection. See Bell, 

402 U.S. at 539; Walton, 255 Va. at 428, 97 S.E.2d at 873; 

Ferguson, 169 Va. at 87, 192 S.E. at 777 ("It is not to be 

presumed that the legislature intends to work an injustice."). 

 Accordingly, we find Shaffer's right to appeal the 

Commissioner's order determining him to be an habitual offender 

remained extant notwithstanding the repeal of Code § 46.2-352, 

and we reverse the decision of the trial court. 

 Reversed and remanded.

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