COURT OF APPEALS OF VIRGINIA 

Present: Judges Barrow,* Koontz and Elder 

Argued at Richmond, Virginia 

EDWIN JOSEPH TRAVIS 

 OPINION BY 

v. Record No. 2465-93-1 JUDGE LARRY G. ELDER 

 MAY 23, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY 

Glen A. Tyler, Judge 

 Jeffrey C. Flax (Kelberg, Childress and Flax, 

 on brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; Margaret 

 Ann B. Walker, Assistant Attorney General, on 

 brief), for appellee. 

 Edwin Joseph Travis (appellant) appeals his felony 

conviction for driving a motor vehicle after having been 

adjudicated an habitual offender in violation of Code § 46.2-357. 

 Appellant contends: (1) an habitual offender who is granted a 

restricted privilege to drive pursuant to Code § 46.2-360(2) does 

not remain an habitual offender subject to prosecution under Code 

§ 46.2-357 for driving in violation of the restrictions; and 

(2) there was insufficient evidence to prove that appellant's 

driving "of itself" endangered the life, limb, or property of 

another in violation of Code § 46.2-357(B)(2). Because the trial 

court committed no error, we affirm the conviction. 

 

 *Judge Bernard G. Barrow participated in the hearing and 

decision of this case and joined in the opinion prior to his 

death. 
 2 

 I. 

 FACTS 

 On January 9, 1989, appellant was declared an habitual 

offender by the Circuit Court of Northampton County, pursuant to 

Code § 46.2-351 (formerly Code § 46.1-387.2). As a result, 

appellant's driving privileges were revoked for ten years. In 

1992, appellant petitioned the same court for restoration of his 

driving privileges pursuant to Code § 46.2-360. The court 

entered an order on September 18, 1992, specifically finding that 

appellant met the criteria of Code § 46.2-360(2). Pursuant to 

this section, the court determined that appellant no longer 

constituted a safety threat to himself and others with regard to 

the driving of a motor vehicle. The court thereafter allowed 

appellant to operate a vehicle to and from his place of 

employment and to and from the mandatory Virginia Alcohol Safety 

Action Program (ASAP). 

 On April 22, 1993, Virginia State Trooper Alan Gladden 

observed appellant's vehicle parked at a restaurant at 

approximately 11:15 p.m. Gladden knew not only appellant's 

status as an habitual offender but also the restrictions on 

appellant's driving privileges. After Gladden observed appellant 

leave the restaurant and enter his car, he followed appellant for 

approximately one mile. Gladden testified that appellant weaved 

within his lane of travel and over the left line of the lane. 

Because he suspected appellant of driving under the influence of 
 3 

 

alcohol, Gladden pulled appellant's vehicle over to the roadside 

and administered field sobriety tests. Gladden also administered 

a blood alcohol test, which revealed that appellant was driving 

with a blood alcohol level of .14. Appellant was arrested at 

11:47 p.m. 

 Appellant was indicted upon a charge of operating a motor 

vehicle after having been declared an habitual offender in 

violation of Code § 46.2-357. He was also charged with operating 

a motor vehicle while under the influence of alcohol in violation 

of Code § 18.2-266. A jury trial held on November 15, 1993 

resulted in a mistrial on the charge of driving under the 

influence, but resulted in a felony conviction on the habitual 

offender charge of Code § 46.2-357. Appellant was sentenced to 

twelve months in jail. 

 II. 

HABITUAL OFFENDER STATUS 

 The facts show that appellant was an habitual offender as 

defined in Code § 46.2-351 and that his driving privileges had 

been revoked for a period of ten years. Despite his status, the 

trial court, on September 18, 1992, entered an order finding that 

appellant met the criteria of Code § 46.2-360(2)1

 and allowed 

 1 This statutory section states that a court may grant an 

habitual offender a restricted driving permit if the court is 

satisfied that (1) at the time of the previous convictions, the 

offender was addicted to or psychologically dependent on the use 

of alcohol or other drugs; (2) at the time of the hearing on the 

petition the offender is no longer addicted to or psychologically 

dependent on the use of alcohol or other drugs; and (3) the 

offender does not constitute a threat to the safety and welfare 
 4 

appellant to operate a vehicle for limited purposes on a 

restricted license2

 in accordance with the procedures of Code 

§ 18.2-271.1(E). As Code § 46.2-360(2) states, "[a]ny violation 

of the restrictions shall be reported to the court, and the court 

may then modify the restrictions or revoke the license." 

 We affirm the trial court's ruling that the Commonwealth 

properly charged appellant with a felony violation of Code 

§ 46.2-357(B)(2) after arresting him for driving while 

intoxicated on April 22, 1993. According to Code § 46.2-357, it 

is unlawful for an habitual offender to drive a motor vehicle 

"while the order of the court prohibiting such operation remains 

in effect." An habitual offender who is found operating a 

vehicle on the Commonwealth's roadways shall be guilty of either 

a misdemeanor or a felony. A misdemeanor charge is appropriate 

where the habitual offender's driving, "does not, of itself, 

endanger the life, limb, or property of another." Code 

§ 46.2-357(B)(1) (emphasis added). On the other hand, the 

habitual offender may be charged with a felony if his or her 

driving, "of itself, does endanger the life, limb, or property of 

 

of himself and others with regard to the driving of a motor 

vehicle. 

 2 The limited privileges granted in this case conform to 

the privileges enumerated in Code § 18.2-271.1(E), which include 

limited privileges such as driving to and from work and to and 

from an alcohol treatment program. Code § 46.2-360 also gives a 

court the option of restoring full driving privileges to an 

habitual offender. Code § 46.2-360(1). 
 5 

 

another." Code § 46.2-357(B)(2) (emphasis added).3

 

 In reaching our conclusion, we reject two contentions 

proposed by appellant. First, we do not believe that because the 

trial court found that appellant no longer constituted a threat 

to himself or others with regard to operating a motor vehicle, 

appellant was no longer an habitual offender. Code § 46.2-360(2) 

specifically states that any violation of driving privileges may 

lead to a modification of the court order or a subsequent 

revocation of the habitual offender's driver's license. The 

continuing authority of the court to modify or revoke the license 

belie appellant's assertion that his adjudication as an habitual 

offender was no longer valid. As the Commonwealth contends, the 

trial court granted a restricted license under subsection (2) of 

Code § 46.2-360, not subsection (1), the subsection granting a 

full restoration of driving privileges. Appellant's status as an 

habitual offender continued despite his limited driving 

privileges, and he was properly charged under Code § 46.2-357 

because he operated a motor vehicle during times not authorized 

 3 Code § 46.2-357(B)(2) added the language "If such 

driving, of itself, does endanger the life, limb, or property of 

another, such person shall be guilty of a felony" effective July 

of 1993. Before this time, there was no misdemeanor-felony 

classification; a violation of this section resulted in a felony 

conviction. 

 This amended section became effective over two months after

the offense was committed but before appellant went to trial. 

However, the issue over which version of the statute to proceed 

under was not preserved on appeal, nor does it appear in the 

parties' briefs. It appears from the Commonwealth's brief that 

the Commonwealth acquiesced in proceeding under the 1993 amended 

version. 
 6 

by the trial court. 

 Second, we reject appellant's assertion that prosecution for 

a violation of his driving privileges must be pursuant to Code 

§ 46.2-301, an alternate section, dealing with unlicensed 

driving, which provides for a misdemeanor conviction instead of a 

felony conviction. Appellant contends that Code § 46.2-360(2), 

the section allowing the grant of a restricted license, states 

that a restricted license is issued pursuant to Code 

§ 18.2-271.1(E), which in turn provides that "[a]ny person who 

operates a motor vehicle in violation of any restrictions imposed 

pursuant to this section shall be guilty of a violation of Code 

§ 46.2-301,"4

 which is a Class 2 misdemeanor. 

 While Code § 46.2-360(2) references Code § 18.2-271.1, this 

reference is for the limited purpose of using the latter's 

procedures for issuing a restricted permit, not for using its 

punishment provisions, which are part of the Code sections 

dealing with DUI offenders, not habitual offenders.5 In our 

view, appellant was violating restrictions imposed pursuant to 

Code §§ 46.2-360 and 46.2-357, not Code § 18.2-271.1. "[W]hen 

one statute speaks to a subject in a general way and another 

deals with a part of the same subject in a more specific manner, 

 

 4 This section was amended in July 1993 and substituted 

"Code § 18.2-272" for "Code § 46.2-301." 

 5 Furthermore, Code § 18.2-271.1 states, if the offender 

"operates a motor vehicle in violation of any of the restrictions 

imposed pursuant to this section," he or she shall be guilty of 

violating Code § 46.2-301 (emphasis added). 
 7 

the two should be harmonized, if possible, and where they 

conflict, the latter prevails." Virginia Nat'l Bank v. Harris, 

220 Va. 336, 340, 257 S.E.2d 867, 870 (1979) (emphasis added); 

see also Penton v. City of Norfolk, 16 Va. App. 141, 428 S.E.2d 

309 (1993). Thus, the punishment provisions of Code § 18.2-272 

are superseded by provisions directly related to cases involving 

habitual offenders--the provisions contained in Code § 46.2-357 

under which appellant was charged. 

 III. 

SUFFICIENCY OF THE EVIDENCE 

 We also hold that sufficient evidence proved that appellant 

was driving in violation of Code § 46.2-357(B)(2). The standard 

for appellate review of criminal convictions is well-established. 

 "When a defendant challenges the sufficiency of the evidence, we 

are required to review the evidence 'in the light most favorable 

to the Commonwealth and give it all reasonable inferences fairly 

deducible therefrom.'" Collins v. Commonwealth, 13 Va. App. 177, 

179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). 

"The conviction will not be reversed unless it is plainly wrong 

or without evidence to support it." Id.; see Code § 8.01-680. 

 The evidence shows that Trooper Gladden, who was following 

appellant in a police car, observed appellant weaving within his 

lane of traffic and even "over the left line." As we recently 

stated in Bishop v. Commonwealth, 20 Va. App. 206, ___, 455 
 8 

S.E.2d 765, 767 (1995): 

 The distinction between negligent 

driving and reckless driving is the critical 

element in determining punishment under Code 

§ 46.2-357. In defining the conduct that 

gives rise to felony punishment under Code 

 § 46.2-357(B)(2), the legislature used the 

phrase, "driving [that] . . . endanger[s] the 

life, limb, or property of another," language 

virtually identical to that found in the 

statute defining reckless driving. See Code 

§ 46.2-852 ("driving . . . at a speed or in a 

manner so as to endanger the life, limb, or 

property of any person shall be . . . 

reckless driving."). 

Because appellant was weaving within his own lane and into the 

other lane, the circumstances support a finding that his driving 

"of itself . . . endanger[ed] the life, limb, or property of 

another." Code § 46.2-357(B)(2). 

 The facts of this case are unlike Bishop, where no evidence 

proved that the actual manner in which Bishop drove his vehicle 

endangered the life, limb, or property of another. In Bishop, 

this Court held that the driver's intoxication does not 

constitute per se proof that the driver endangered life, limb, or 

property, and "the inference drawn solely from Bishop's 

intoxication, without more, was insufficient to support 

imposition of felony punishment." Id. at ___, 455 S.E.2d at 766. 

 In this case, sufficient evidence proved that appellant's 

driving was dangerous to the life, limb, or property of another. 

 For these reasons, we affirm appellant's conviction. 

Affirmed.