COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges 

Argued at Alexandria, Virginia 

WILLIAM M. KENISON 

 MEMORANDUM OPINION* BY 

v. Record No. 1688-97-4 JUDGE RUDOLPH BUMGARDNER, III 

 FEBRUARY 23, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 J. Burkhardt Beale (Boone, Beale, Cosby & 

Long, on brief), for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 William M. Kenison appeals his jury conviction for driving 

under the influence in violation of Code § 18.2-266. He argues 

that this conviction is double jeopardy because he was subjected 

to an administrative license suspension. He further argues that 

the administrative and criminal penalties were separate and 

distinct punitive proceedings for the same act. Finding no 

error, we affirm the defendant's conviction. 

 The defendant was arrested for driving under the influence. 

A magistrate suspended his license administratively for seven 

days pursuant to Code § 46.2-391.2. The defendant moved to 

dismiss the criminal warrant arguing it was a violation of his 

right not to be placed in double jeopardy. The trial court 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

denied his motion, convicted him, and imposed a fine and 

suspension of his privilege to drive. 

 The defendant contends that Code § 19.2-294 barred his 

prosecution for driving under the influence because the 

administrative license suspension had subjected him to a prior 

adjudication. Brame v. Commonwealth, 252 Va. 122, 476 S.E.2d 177 

(1996), decides this point. In Brame, the Supreme Court held 

that an administrative license suspension did not trigger the 

protections of Code § 19.2-294. The Court concluded that double 

jeopardy protections only applied to criminal proceedings and 

that the administrative revocation procedure was not a criminal 

proceeding. See id. at 130-31, 476 S.E.2d at 183. 

 The first revocation was an administrative proceeding. A 

subsequent criminal trial for driving under the influence could 

not be a subsequent conviction that would come within the bar of 

Code § 19.2-294 or the Double Jeopardy Clause of the Fifth 

Amendment. Hudson v. United States, 118 S. Ct. 488 (1997), held 

that the Fifth Amendment did not bar a criminal prosecution that 

followed administrative proceedings which were civil, not 

criminal in nature. The case overruled United States v. Halper, 

490 U.S. 435 (1989), as unworkable. 

 Though the defendant acknowledges the magistrate's license 

suspension was a civil proceeding, he argues that the suspension 

was a conviction for purposes of Code § 19.2-294. He cites the 

definition of "conviction" in Code § 46.2-341.4 that specifies 

the term includes administrative revocations within its meaning. 
- 3 - 

However, the section makes clear that the definition is limited 

to Article 6.1 of Title 46.2, the Virginia Commercial Driver's 

License Act. 

 The defendant also argues that the administrative and 

criminal suspensions were separate and distinct punitive 

proceedings arising out of the same conduct. However, parallel 

administrative and criminal proceedings are not separate judicial 

proceedings. An administrative suspension "is not a judgment by 

a court of competent jurisdiciton." Simmons v. Commonwealth, 252 

Va. 118, 120-21, 475 S.E.2d 806, 807 (1996). See Wild v. 

Commonwealth, 18 Va. App. 716, 446 S.E.2d 626 (1994) (punishment 

of same conduct, first at Department of Corrections 

administrative disciplinary hearing and then subsequent judicial 

proceeding, upheld). 

 Finally, the defendant argues that the seven-day 

administrative suspension was excessive because he had a 

commercial driver's license. Code §§ 46.2-341.26:2(D) and 

46.2-341.26:3(C) prescribe a twenty-four hour suspension of a 

driver's commercial license. If the magistrate erred, the 

defendant's recourse was to appeal that action not to assert it 

as a bar to the subsequent criminal charge. 

 Concluding that the trial court did not err, we affirm. 

 Affirmed.