COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF MOTOR VEHICLES 

 MEMORANDUM OPINION* 

v. Record No. 2012-96-1 BY JUDGE JOSEPH E. BAKER 

 JULY 15, 1997 

GARY WAYNE STAFFORD 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

V. Thomas Forehand, Jr., Judge 

 Eric K. G. Fiske, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

briefs), for appellant. 

 Allen J. Gordon for appellee. 

 On May 24, 1995, Gary Wayne Stafford (Stafford) was declared 

an habitual offender by the Circuit Court of the City of 

Chesapeake (trial court) and ordered not to operate a motor 

vehicle for a period of ten years from the date of the order or 

until his privilege to drive "has been restored by Order of a 

Court of record entered in a proceeding in accordance with law 

pursuant to the statutes made and provided." On July 31, 1996, 

the trial court issued Stafford a restricted license to drive to 

his place of employment and substance abuse program. In this 

appeal from the July 31, 1996 order, the Commonwealth of 

Virginia, Department of Motor Vehicles (DMV) contends that the 

trial court was without legal authority to grant a restricted 

____________________ 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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license to Stafford because neither the ten-year prohibition 

period nor the requirements of Code § 46.2-3601

 had been met. 

 Stafford asserts that we should not consider the issue 

presented by this appeal because the DMV (1) did not preserve the 

issue for appeal and (2) failed to provide this Court with a 

transcript of the proceedings below, or a written statement of 

facts in lieu thereof. We have reviewed the record and find that 

the issue presented here was contained in the DMV's motion to 

dismiss made in the trial court and there denied. 

 Stafford further contends that because of the DMV's failure 

to timely file a transcript or written statement of facts, this 

matter should be dismissed without further consideration. See

Rule 5A:8; Barrett v. Barrett, 1 Va. App. 378, 339 S.E.2d 208 

(1986). The filing of a transcript is not mandatory, and the 

failure to file a transcript does not per se foreclose our 

consideration of an appeal. Wolfe v. Commonwealth, 6 Va. App. 

640, 643, 371 S.E.2d 314, 315 (1988). "If the record on appeal 

is sufficient in the absence of the transcript to determine the 

 

 1Code § 46.2-360 sets forth the requirements for restoration of 

the privilege of operating a motor vehicle to a person who has 

been adjudicated an habitual offender where the adjudication was 

based in part and dependent on a conviction for driving or 

operating a motor vehicle while under the influence of 

intoxicants. 
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merits of the appellant's allegation, we are free to proceed to 

hear the case." Turner v. Commonwealth, 2 Va. App. 96, 99, 341 

S.E.2d 400, 402 (1986). 

 In the case before us, the record contains Stafford's DMV 

driver history record, correspondence from the DMV regarding his 

status as a possible habitual offender, correspondence from the 

DMV regarding the suspension of his license, the order declaring 

Stafford to be an habitual offender, and the trial court order 

restoring to Stafford the privilege to drive under a restricted 

license. We hold that the record is sufficient in the absence of 

a transcript or written statement to determine the merits of the 

DMV's case. 

 A DMV Transcript of Stafford's Driver History Record, duly 

certified in accordance with Code § 46.2-215, is contained in the 

record. The transcript, among other things, discloses the 

following relevant entries: 

CONVICTED ON 10/02/84 DRIVING WHILE INTOX, 1ST 

CONVICTED ON 05/01/88 DRIVING UNDER 

REVOCATION/SUSPENSION 

CONVICTED ON 12/30/92 DRIVING WHILE INTOX, 1ST 

CERTIFIED ON: 01/27/93 AS A POSSIBLE 

HABITUAL OFFENDER 

CHESAPEAKE CITY 

DISPOSITION: UNABLE TO SERVE 

CERTIFIED ON: 04/13/94 AS A POSSIBLE 

HABITUAL OFFENDER 

VIRGINIA BEACH CITY 

DISPOSITION: DISREGARD/NEW ADDRESS 

CERTIFIED ON: 01/30/95 AS A POSSIBLE 

HABITUAL OFFENDER 
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CHESAPEAKE CITY 

DISPOSITION: LIC DENIAL PENDING 

 Following the receipt by the DMV of notice from the 

Chesapeake General District Court that Stafford had been 

convicted of driving while intoxicated, the DMV issued 

certifications that Stafford's driving record indicated he was 

possibly an habitual offender pursuant to Code § 46.2-352. The 

January 27, 1993 certification could not be served. The April 

13, 1994 certification was abandoned due to address problems. 

The January 30, 1995 certification was served, a hearing was held 

pursuant thereto, and Stafford was declared an habitual offender 

on May 24, 1995. 

 When validly issued, such certification requires that the 

DMV deny Stafford issuance of a driver's license until the DMV 

receives one of the following: (1) documentation from the 

prosecutor's office stating that there is a valid reason not to 

make a determination that the person is an habitual offender; (2) 

a court order reversing the DMV certification; or (3) an order of 

license restoration. 

 On April 25, 1996, Stafford petitioned the trial court to 

"restore to him the privilege to operate a motor vehicle upon 

such terms and conditions as the Court may prescribe." The trial 

court granted him a restricted license to drive to and from his 

place of employment and a substance abuse program in an order 

dated July 31, 1996. The DMV contends that the trial court's 

order was entered contrary to and not in accord with statutes 
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permitting such relief. We agree. 

 Stafford contends that subparagraph 2 of Code § 46.2-360 

authorized the trial court to grant the relief contained in its 

July 31, 1996 order. Code § 46.2-360(2) provides, in relevant 

part, that after three years from the date a person has been 

declared an habitual offender such person may be granted a 

restricted license upon a showing that at the time of the 

declaration he was addicted to alcohol, that "he is no longer 

addicted to or psychologically dependent on the use of alcohol 

. . .," and that "the defendant does not constitute a threat to 

the safety and welfare of himself and others with regard to the 

driving of a motor vehicle." Simply put, the DMV contends that 

three years have not passed since the entry of the habitual 

offender order2 and, therefore, the trial court did not have 

legal authority to issue a restricted license. 

 Stafford responds that he was eligible for restoration of 

his license by the trial court because the last paragraph of Code 

§ 46.2-360 contains the following provision: 

 In the computation of the . . . three-year 

period[ ] under subdivision[ ] . . . 2 of 

this section, such person shall be given 

credit for any period his driver's license 

was administratively revoked under § 46.2-391 

prior to the final order or notification by 

the Commissioner of the habitual offender 

 

 2The habitual offender declaration was made on May 24, 1995. 

The trial court's order from which this appeal emanates was 

entered on July 31, 1996. 
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determination. 

Stafford asserts that when the DMV, on January 27, 1993, 

certified him as "a possible habitual offender," it thereby 

"administratively suspended [Stafford's] driver's license." 

Therefore, pursuant to Code § 46.2-360, Stafford contends he 
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should be given credit for the time elapsed between January 27, 

1993 and the May 24, 1995 habitual offender order. We disagree. 

 Code § 46.2-391, referenced in the last paragraph of Code 

§ 46.2-360, applies to an administrative revocation where a 

person "is adjudged to be a second offender in violation of . . . 

§ 18.2-266 pertaining to driving under the influence of . . . 

intoxicants." Code § 46.2-391 (emphasis added). Although the 

DMV transcript shows that Stafford was twice convicted for 

driving while intoxicated, it does not disclose that he has been 

charged or "adjudged to be a second offender" as provided in the 

Virginia Code. See Code §§ 46.2-391, 18.2-270, 18.2-271. 

Therefore, he is not entitled to the credit in the last paragraph 

of Code § 46.2-360. 

 The trial court's restoration of Stafford's license was not 

in accord with the specific language and requirements of the code 

provisions applicable to this case. Because Stafford has failed 

to show that three years have elapsed since the date the habitual 

offender order was entered, the trial court was without legal 

authority to issue a restricted driver's license to him. 

 Accordingly, for the reasons stated, we reverse the judgment 

of the trial court and dismiss Stafford's petition. 

 Reversed and dismissed.