Barden v. Commonwealth, Record No. 1027–14–4.

Decision Date12 May 2015
Docket NumberRecord No. 1027–14–4.
Citation64 Va.App. 700,771 S.E.2d 699
CourtVirginia Court of Appeals
PartiesKenneth Lee BARDEN v. COMMONWEALTH of Virginia.

Bonnie H. Hoffman, Deputy Public Defender (Office of the Public Defender, on briefs), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.



ALSTON, Judge.

Kenneth Barden (appellant) appeals his conviction of driving under a suspended or revoked license, in violation of Code § 46.2–301, because the evidence adduced at trial failed to establish that his driver's license was suspended or revoked at the time he was operating a motor vehicle. For the reasons expressed below, we agree and reverse appellant's conviction under Code § 46.2–301(B).


The facts in this matter are not in dispute. On November 6, 2013, appellant was driving in Loudoun County when he was stopped by Officer Clark McDaniel. During the course of the stop, Officer McDaniel used the computer in his patrol car to access appellant's Department of Motor Vehicles (“DMV”) record, which listed appellant's driver's license status as “revoked.” When asked whether he possessed a driver's license, appellant responded that he did not. Appellant was arrested and subsequently charged with driving on a suspended or revoked license, in violation of Code § 46.2–301(B).1

At appellant's bench trial, the Commonwealth introduced appellant's DMV record as an exhibit. The transcript reflects that on February 15, 2008, appellant was convicted of driving while intoxicated, a first offense, and that the trial court suspended his driver's license for a period of twelve months.

Shortly thereafter, upon receipt of appellant's conviction order, the Commissioner of the DMV, pursuant to Code § 46.2–389,2 revoked appellant's license for a term ending on February 8, 2009.

According to his transcript, appellant was again convicted of driving while intoxicated on February 25, 2008. As before, the trial court suspended appellant's license for twelve months, and the Commissioner revoked appellant's license upon receipt of appellant's conviction order. Appellant's transcript lists the “term” of this revocation as February 18, 2009.

In addition to the two periods of revocation, appellant's transcript lists five separate suspensions (each for an indefinite period) incurred by appellant for failing to pay fines and court costs associated with prior court proceedings (including appellant's two convictions for driving while intoxicated).3 During trial, appellant introduced receipts proving that he paid in full his past due fines and court costs relating to all of the prior convictions approximately two months before he was stopped by Officer McDaniel. Appellant testified, however, that he had not paid any reinstatement fees; nor had he applied for a new or renewal driver's license at the time he was stopped.

At the close of the evidence, appellant argued that he was not driving on a suspended or revoked license when he was stopped by Officer McDaniel because the periods of suspension and revocation had ended. According to appellant, his indefinite suspensions terminated upon payment of his past due fines and court costs, while each of his revocations expired on set dates prior to when he was stopped—February 8, 2009 and February 18, 2009, respectively. Because Code § 46.2–301(B) penalizes driving only during the period of suspension or revocation, appellant asserted that the evidence was insufficient to support his conviction. Appellant further asserted that his failure to reapply for a new or renewal license had no bearing on whether the periods of suspension and revocation ended prior to when he was stopped. At most, appellant contended that he was guilty of violating Code § 46.2–300, which punishes as a Class 2 misdemeanor any person who drives without a valid license on a highway in the Commonwealth.

Following the parties' closing arguments, the trial court convicted appellant of driving after his privilege was suspended or revoked. In reaching its decision, the trial court noted that Code § 46.2–100 draws a distinction between suspension and revocation: While the trial court recognized some “merit to [appellant's] argument about suspension—the idea that ... it might be self-curing, that you pay and you no longer have that suspension because it was only suspended indefinitely until you pay,” the trial court found no support for appellant's argument that a revocation terminated prior to restoration of one's driver's license. Relying on appellant's DMV transcript, which identified appellant's then-status as revoked, the trial court found appellant guilty of driving on a revoked license.

This appeal followed.


Appellant contends that the trial court erred by finding the evidence sufficient to support his conviction of driving under a suspended or revoked license. According to appellant, his license was neither suspended nor revoked when he was stopped by Officer McDaniel. This is so, appellant says, because the period of his license suspension terminated upon payment of his outstanding court costs, and his period of revocation ended years prior to his arrest for driving under a revoked license. Although appellant concedes that he did not formally reapply to have his license reinstated or renewed after the term of his suspension and revocation ended, he contends that his failure to reapply for a reinstated license is immaterial to his conviction under Code § 46.2–301(B), because “the revocation provisions [of Chapter 3 of Title 46.2] separate the termination of the revocation from the reinstatement of one's [license] and “revocation must end before reinstatement may occur.” Appellant's Br. at 12. In other words, appellant asserts that, although he was an unlicensed driver at the time he was stopped,4 he was not guilty of driving under a revoked license because Code § 46.2–301(B) penalizes driving on a suspended or revoked license only “until the period of suspension or revocation has terminated,” id. at 4, and both periods expired before the date of his stop. Accordingly, appellant contends that the Commonwealth did not meet its burden of proving a violation of Code § 46.2–301(B).

In response, the Commonwealth contends that the suspension and revocation of appellant's license remained in effect at the time of his arrest, because “a suspension or revocation does not end automatically by operation of law, but instead continues until a new license is applied for and issued.” Commonwealth's Br. at 8. According to the Commonwealth, this conclusion follows primarily from Code § 46.2–411(C), which states that [an] order of suspension or revocation shall remain in effect and the driver's license, ... shall not be reinstated and no new driver's license, ... shall be issued or granted unless such person, in addition to complying with all other provisions of law, pays to the Commissioner a reinstatement fee.”5 Because the Commissioner was not permitted to issue appellant a new or renewal license until appellant satisfied these statutory prerequisites, which appellant admittedly did not complete following the terms of his suspension and revocation, the Commonwealth asserts that appellant's suspension and revocation remained in effect at the time of his stop.

The issue presented in this appeal raises a question of statutory construction, which we review de novo. Kirby v. Commonwealth, 63 Va.App. 665, 669, 762 S.E.2d 414, 416 (2014). Our review is guided by well-settled principles.

“It is one of the fundamental rules of construction of statutes that the intention of the legislature is to be gathered from a view of the whole and every part of the statute taken and compared together, giving to every word and every part of the statute, if possible, its due effect and meaning, and to the words used their ordinary and popular meaning, unless it plainly appears that they were used in some other sense. If the intention of the legislature can be thus discovered, it is not permissible to add to or subtract from the words used in the statute.”

Shreve v. Commonwealth, 44 Va.App. 541, 546–47, 605 S.E.2d 780, 782 (2004) (quoting Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918) ). We are also mindful that a proceeding under Code § 46.2–301 is criminal, and violations are punished as misdemeanors. Accordingly, Code § 46.2–301 ‘must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute.’ Davis v. Commonwealth, 12 Va.App. 246, 248, 402 S.E.2d 711, 712 (1991) (quoting Crews v. Commonwealth, 3 Va.App. 531, 536, 352 S.E.2d 1, 3 (1987) ).

Code § 46.2–301(B) prohibits an individual whose driver's license has been suspended or revoked from driving “until the period of such suspension or revocation has terminated or the privilege has been reinstated or a restricted license is issued.” In other words, this statutory provision criminalizes driving only during the period in which one's driver's license is suspended or revoked. See Paduano v. Commonwealth, 64 Va.App. 173, 180, 766 S.E.2d 745, 748 (2014) (“ ‘Courts are required to apply the plain language of a statute when possible and may not rewrite it.’ ” (quoting Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007) )). It follows no less clearly from Code § 46.2–301(B)'s plain language that license suspensions and revocations have defined beginnings and endings; that is the natural import of the phrase “the period of ... suspension or revocation.”

Moreover, those periods of suspension and revocation come about independent of the Commissioner's reinstatement or renewal of one's driver's license. Code § 46.2–100 clarifies this point. Under that provision, the legislature has defined “suspension” to “mean[ ] that the document or privilege suspended has been temporarily withdrawn, but may be reinstated ...

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6 cases
  • Yoder v. Commonwealth
    • United States
    • Virginia Supreme Court
    • December 12, 2019
    ...forfeiture of her license, third offense in ten years.3 B.Yoder argues that our reasoning is inconsistent with Barden v. Commonwealth , 64 Va. App. 700, 771 S.E.2d 699 (2015). In that case, the Court of Appeals addressed Code § 46.2-301(B), which states that an individual whose license has ......
  • Stinnie v. Holcomb
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    • March 13, 2017
    ...databases may decrease the likelihood Plaintiffs will be charged with driving on suspended licenses. See Barden v. Virginia, 64 Va. App. 700, 702 (Va. Ct. App. 2015) (indicating that police check DMV's database to ascertain driver's status). But the legal reality of their suspensions would ......
  • Sharp v. Commonwealth
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    • November 24, 2015
    ...he shall be deemed guilty of the larceny thereof. We review questions of statutory interpretation de novo. Barden v. Commonwealth, 64 Va. App. 700, 706, 771 S.E.2d 699, 702 (2015). When construing a penal statute, "a court must not add to the words of the statute, nor ignore its actual word......
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