COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Duff 

Argued at Richmond, Virginia 

LAWRENCE D. LOFLIN 

 OPINION BY 

v. Record No. 1365-97-2 JUDGE LARRY G. ELDER 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NEW KENT COUNTY 

Samuel T. Powell, III, Judge 

 Robert S. Ganey (Hanover Law Office, on 

briefs), for appellant. 

 Jeffrey A. Spencer, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

H. Elizabeth Shaffer, Assistant Attorney 

General, on brief), for appellee. 

 Lawrence D. Loflin (appellant) appeals the trial court's 

order denying his petition to restore his driving privilege. 

Appellant was previously adjudged an habitual offender and filed 

his petition based on the provisions of Code § 46.2-361(B). He 

contends that, in denying his petition, the trial court 

erroneously modified its prior order adjudicating him to be an 

habitual offender, in violation of Rule 1:1. For the reasons 

that follow, we affirm. 

 I. 

 FACTS 

 On September 18, 1995, the trial court conducted a 

show-cause proceeding pursuant to Code § 46.2-352 and adjudged 

appellant to be an habitual offender. At the time of this 

proceeding, appellant had four convictions chargeable under the 
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Habitual Offender Act that occurred on two separate dates. A 

transcript of appellant's driving record from the Department of 

Motor Vehicles indicated he was convicted of "driving while 

intox, 1ST" and of "driving under revocation or suspension" and 

that the offense date of these two convictions was February 3, 

1991. The transcript also indicated appellant was convicted of 

"driving under revocation or suspension" and that he committed 

this offense twice on April 9, 1995. In its order, the trial 

court stated it was "of the opinion that [appellant] . . . is an 

'habitual offender' under the definition contained in § 46.2-351 

of the Code of Virginia (1950), as amended." The trial court 

ordered that appellant "shall not operate a motor vehicle on the 

highways of the Commonwealth of Virginia for a period of ten (10) 

years from the date of this Order and until the privilege of said 

person has been restored by an order of a Court of record entered 

in a proceeding as provided by law . . . ." 

 On February 26, 1997, appellant filed a "petition for 

restoration of driving privilege habitual offender." His 

petition was grounded solely upon Code § 46.2-361(B), which 

includes the requirement that the underlying adjudication of 

habitual offender "was based entirely upon convictions as set out 

in subdivision 1 c of § 46.2-351." (Emphasis added.) The 

offense of driving while intoxicated is not listed in Code 

§ 46.2-351(1)(c). 

 At a hearing on his petition, appellant argued the 
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determination he was an habitual offender was based solely on his 

convictions of driving under suspension or revocation and not on 

his conviction of driving while intoxicated. He argued that, 

because his offense of driving while intoxicated occurred within 

six hours of his offense of driving under suspension or 

revocation on February 3, 1991, and because that was the first 

occasion he had committed simultaneous multiple traffic offenses, 

the last paragraph of Code § 46.2-351 required these two offenses 

to be treated as one offense. Moreover, he argued the last 

paragraph of Code § 46.2-351 required the trial court to treat 

these two offenses as one offense of driving under suspension or 

revocation and to so indicate in the habitual offender order. 

Based on this interpretation of the last paragraph of Code 

§ 46.2-351, appellant argued his habitual offender adjudication 

was not based on his conviction of driving while intoxicated. He 

also argued he met all of the other requirements for restoration 

set forth in Code § 46.2-361. 

 The trial court rejected appellant's argument and denied his 

petition. It reasoned the last paragraph of Code § 46.2-351 did 

not require it to specify which of the offenses committed by 

appellant on February 3, 1991, was the basis for its 

determination that he was an habitual offender. It further 

reasoned that, because appellant was previously convicted of 

driving while intoxicated, the determination he was an habitual 

offender was not based entirely on the offenses set out in Code 
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§ 46.2-351(1)(c). 

 The trial court also found that appellant still posed a 

safety threat to other drivers. It stated: 

 I'm more concerned that if he gets his 

license back, he's got a very poor driving 

record to start with. I'm very concerned not 

necessarily about him as much as I am 

everybody else who is out on the highway with 

him. . . . I want to make sure that if he's 

shown the bad judgment that he's shown and 

the disregard for the laws of the highways of 

the Commonwealth of Virginia and disregard 

for the safety of other people out on the 

highway with him, I want to make sure that I 

know that he doesn't have an alcohol problem 

when he goes back out there to operate a 

motor vehicle. 

 II. 

 RESTORATION OF DRIVING PRIVILEGE UNDER CODE § 46.2-361(B) 

 Appellant contends the trial court abused its discretion 

when it denied his petition for restoration. He argues the trial 

court modified his habitual offender order in violation of Rule 

1:1 when it indicated that his habitual offender adjudication was 

based in part on his prior conviction of driving while 

intoxicated. We disagree. 

 A. 

 In order to obtain restoration of the privilege to operate a 

motor vehicle under Code § 46.2-361(B), an habitual offender has 

the burden of proving (1) that the determination he or she was an 

habitual offender "was based entirely upon convictions as set out 

in [Code § 46.2-351(1)(c)]" for failure to pay fines and costs, 

furnish proof of financial responsibility, or satisfy a judgment, 
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(2) that he or she has made "payment in full of all outstanding 

fines, costs and judgments relating to [the] determination," 

(3) that he or she has attained "financial responsibility, if 

applicable," and (4) that he or she "does not constitute a threat 

to the safety and welfare of himself or others with respect to 

the operation of a motor vehicle." Code § 46.2-361(B) to (D).1

 1Code § 46.2-361(B) states in full: 

 Any person who has been found to be an 

habitual offender, where the determination 

was based entirely upon convictions as set 

out in subdivision 1 c of § 46.2-351, may, 

after payment in full of all outstanding 

fines, costs and judgments relating to his 

determination, and furnishing proof of 

financial responsibility, if applicable, 

petition the court in which he was found to 

be an habitual offender, or the circuit court 

in the political subdivision in which he 

resides, for restoration of his privilege to 

drive a motor vehicle in the Commonwealth. 

Code § 46.2-361(C) states in full: 

 This section shall apply only where the 

conviction resulted from a suspension or 

revocation ordered pursuant to (i) § 46.2-395 

for failure to pay fines and costs, 

(ii) § 46.2-459 for failure to furnish proof 

of financial responsibility or (iii) 

§ 46.2-417 for failure to satisfy a judgment 

provided the judgment has been paid in full 

prior to the time of filing the petition. 

Code § 46.2-361(D) states in full: 

 On any such petition, the court, in its 

discretion, may restore to the person his 

privilege to drive a motor vehicle, on 

whatever conditions the court may prescribe, 

if the court is satisfied from the evidence 

presented that the petitioner does not 

constitute a threat to the safety and welfare 

of himself or others with respect to the 
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 The issue in this case is whether the trial court's prior 

adjudication that appellant was an habitual offender was "based 

entirely upon convictions as set out in [Code § 46.2-351(1)(c)]." 

 Code § 46.2-361(B) (emphasis added). The convictions listed in 

Code § 46.2-351(1)(c) are: 

 [d]riving 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. 

 Under Code § 46.2-351(1), a person is an habitual offender 

if an examination of his or her driving record reveals "three or 

more" prior convictions within the past ten years of the offenses 

enumerated in that subsection. See Code § 46.2-351(1); Dicker v. 

Commonwealth, 22 Va. App. 658, 661, 472 S.E.2d 655, 657 (1996). 

Under this framework, a determination that an individual is an 

habitual offender is "based" in part on all of the relevant prior 

convictions listed in the individual's driving record. Cf. Dorn 

v. Commonwealth, 3 Va. App. 110, 115, 348 S.E.2d 412, 415 (1986) 

(holding that, where the defendant was adjudged an habitual 

offender in 1978, his privilege to drive was restored in 1983, 

and in 1985 he was again adjudged an habitual offender, the 

Commonwealth was not estopped from using in the 1985 proceeding 

 operation of a motor vehicle, and that he has 

satisfied in full all outstanding court 

costs, court fines and judgments relating to 

determination as an habitual offender and 

 furnished proof of financial responsibility, 

if applicable. 
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two of the convictions previously used in the 1978 proceeding). 
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 B. 

 We hold that the trial court did not violate Rule 1:1 at the 

hearing on appellant's petition. Although the trial court stated 

at the hearing that the determination appellant was an habitual 

offender in 1995 was based on appellant's conviction of driving 

while intoxicated, this statement did not constitute a 

modification of its prior habitual offender order. 

 Rule 1:1 prohibits a trial court from modifying a final 

order more than twenty-one days after its entry. See Davis v. 

Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90, 94 (1996). 

 Appellant correctly contends that the two offenses he 

committed on February 3, 1991 -- driving while intoxicated and 

driving under suspension -- were required to be treated as one 

offense for the purpose of counting his prior convictions. Code 

§ 46.2-351, which defines who is an habitual offender, provides 

an exception to the method used to count prior convictions when 

multiple offenses are committed within a six-hour period by a 

first-time offender. The last paragraph of this statute states: 

 [w]here 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. 

Code § 46.2-351; see Commonwealth v. Stanley, 232 Va. 57, 59, 348 

S.E.2d 231, 232-33 (1986). 

 However, the unambiguous language of this paragraph of Code 
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§ 46.2-351 merely dictates how offenses committed simultaneously 

or in rapid succession by a first-time offender are counted, not 

how they are classified. Contrary to appellant's argument, when 

this provision applies, it does not require a trial court 

adjudicating a person to be an habitual offender to either choose 

among the multiple offenses or to specify in its final order 

which offense provided the basis for the court's determination. 

Regardless of how the last paragraph of Code § 46.2-351 required 

the trial court to count appellant's offenses on February 3, 

1991, the trial court's determination in 1995 that appellant was 

an habitual offender was based in part on his conviction of 

driving while intoxicated because this offense was included in 

his driving record at that time. Thus, the trial court's 

statements at the hearing on appellant's petition did not 

constitute a modification of its prior order. 

 We also hold that the trial court's denial of appellant's 

petition for restoration of his driving privilege based on Code 

§ 46.2-361(B) was not an abuse of discretion. The record does 

not indicate that appellant's prior habitual offender 

adjudication was "based entirely" on convictions set forth in 

Code § 46.2-351(1)(c). Driving while intoxicated is listed in 

subsection (1)(b) of Code § 46.2-351, not subsection (1)(c). 

Because appellant's habitual offender adjudication in 1995 was 

partially based on his prior conviction of driving while 

intoxicated, the trial court did not err when it concluded that 
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appellant failed to meet the threshold requirement for 

restoration of his driving privilege under Code § 46.2-361(B).2

 For the foregoing reasons, we affirm the order denying 

appellant's petition for restoration of his driving privilege. 

Affirmed. 

 

 2

We also note that, even if appellant's habitual offender 

adjudication had been based entirely on convictions of driving 

while his license was suspended or revoked, he was still not 

entitled to restoration of his driving privilege under Code 

§ 46.2-361(B). In order to restore a petitioner's driving 

privilege under this statute, the trial court must find "from 

the evidence presented that the petitioner does not constitute a 

threat to the safety and welfare of himself or others with 

respect to the operation of a motor vehicle . . . ." Code 

§ 46.2-361(D). In this case, the trial court expressly found 

that appellant still posed a threat to the safety of other 

drivers. Appellant's prior driving record, which included ten 

convictions of traffic-related offenses within a seven-year 

period, one of which was for driving while intoxicated, amply 

supports that finding.