Commonwealth v. Ellett, Record No. 2147.

• Decision Date: 09 October 1939
• Docket Number: Record No. 2147.
• Parties: COMMONWEALTH OF VIRGINIA v. W. O. ELLETT.
• Court: Virginia Supreme Court

Page 403

174 Va. 403

COMMONWEALTH OF VIRGINIA v. W. O. ELLETT.

Record No. 2147.

Supreme Court of Virginia, Richmond.

October 9, 1939.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. AUTOMOBILES — Driving While Intoxicated — Deprivation of Right to Drive Not Part of Punishment. — The penalty of being deprived of the right to operate a motor vehicle on conviction of driving while intoxicated, under section 4722 of the Code of 1936, is not a part of, nor within the limits of, the punishment to be fixed by a court or jury.

2. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Construction. — In construing section 4722 of the Code of 1936, relating to the operation of automobiles while under the influence of intoxicating liquors, the Supreme Court of Appeals must give consideration to the words used, their relation to the subject matter in which they are used, the purposes for which the statute was intended, and the mischief sought to be suppressed.

3. WORDS AND PHRASES — "Second" — "Subsequent." — In common and ordinary acceptation, the words "second" and "subsequent" have the following meanings: "Second, adj. 1. Immediately following the first; next to the first in order of place or time; hence, occurring again; another; other." "Subsequent, adj. 1. Following in time; coming or being later than something else; succeeding."

4. WORDS AND PHRASES — "Subsequent." — The word "subsequent" has a much broader general meaning than the word "second," and while the definition of "second" is included in its definition, it is not confined thereto.

5. AUTOMOBILES — Driving While Intoxicated — Conviction for Second Time Was for "Subsequent" Offense — Case at Bar. — In the instant case, a prosecution for driving an automobile while intoxicated, accused was convicted of that offense on September 21, 1935, and deprived of his right to operate a motor vehicle for a period of one year from that date. Within a year of his first conviction, accused was again convicted in the same court of a similar offense, and the Director of the Division of Motor Vehicles deprived him of the right to drive within the State for a period of three years. Accused contended that his last conviction was a conviction for a "first offense," since the warrant did not allege the last offense to be a "second offense," and that therefore he should have been deprived merely of the right to secure a permit to operate a motor vehicle in Virginia for a period of one year from the date of the last conviction.

Held: That accused's last conviction was for a subsequent offense, in point of time, whether for the purpose of the prosecution it was, or was not, charged as a "second" or "subsequent" offense.

6. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Provisions of Second Paragraph Dependent on Nature of Charge in Warrant or Indictment. — The second paragraph of section 4722 of the Code of 1936, relating to the operation of a motor vehicle while under the influence of intoxicants, provides the penalty to be inflicted for a first and for "a second or other subsequent offense," and its provisions are dependent upon the nature of the charge contained in the warrant or indictment and deal with the punishment to be fixed by the court or jury.

7. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — When Provisions of Third Paragraph Become Effective — Provisions Self-Executing. — The provisions of the third paragraph of section 4722 of the Code of 1936, depriving the person convicted of operating a motor vehicle while under the influence of intoxicating liquor of the right to drive for one year after conviction for a first offense and for three years after conviction for "a second or other subsequent offense," become effective only after judgments of conviction, and are self-executing.

8. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Loss of Right to Drive No Part of Judgment of Conviction — Not Dependent on Evidence Necessary to Convict. — The loss of the right to operate a motor vehicle, under section 4722 of the Code of 1936, relating to the operation of motor vehicles while under the influence of intoxicating liquors, is no part of the judgment of conviction, or the punishment fixed by the court or jury, and no action or order of the court or other officer is required to put it into effect. It is not dependent upon evidence necessary to convict. Evidence of conviction alone is essential.

9. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Director Has No Power to Hear Evidence or Disregard Judgments of Conviction. — Under section 4722 of the Code of 1936, which requires reports of convictions of operating motor vehicles while under the influence of intoxicating liquors to be sent to the Director of the Division of Motor Vehicles, the Director has no power to hear evidence to fix the measure of guilt prior to revoking the license of the defendant, nor has he the right to disregard judgments of conviction.

10. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Purposes. — The provisions of section 4722 of the Code of 1936, relating to the operation of motor vehicles while under the influence of intoxicating liquors, evidence two principal purposes. One purpose is to enable the court or jury to impose a heavier punishment when the accused is tried for and convicted of an offense charged as a second or subsequent offense, and to effect this purpose, the prior offense must be charged and proven. The other purpose is to deprive the convicted person of the right to secure a permit to operate a vehicle for a specified time, after he has been convicted once or more than once, and to effect this purpose the provision is made self-operative.

11. STREETS AND HIGHWAYS — Right to Use — May Be Regulated under Police Power. — The right of a citizen to travel upon the public highways is a common right, but the exercise of that right may be regulated or controlled in the interest of public safety under the police power of the state.

12. AUTOMOBILES — Right to Operate — Conditional Privilege — Not Contract or Property Right. — The operation of a motor vehicle on the public highways is not a natural right. It is a conditional privilege, which may be suspended or revoked under the police power. The license or permit to so operate is not a contract or property right in a constitutional sense.

13. AUTOMOBILE — Driving While Intoxicated — Section 4722 of the Code of 1936 — Intent to Be Given Meaning and Effect. — It is the duty of the Supreme Court of Appeals, in construing section 4722 of the Code of 1936, relating to the operation of motor vehicles while under the influence of intoxicating liquors, to give meaning and effect to the intent with it naturally presents.

14. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Right to Drive Revoked for Three Years upon Another Conviction for Similar Offense. — Under section 4722 of the Code of 1936, relating to the operation of motor vehicles while under the influence of intoxicating liquors, the right to drive a vehicle is revoked for one year upon a first conviction for drunken driving, and for three years upon any conviction for a similar offense following thereafter.

15. AUTOMOBILES — Driving While Intoxicated — Section 4722 of the Code of 1936 — Practical Construction Given Statute by Administrative Officials. — In construing section 4722 of the Code of 1936, relating to the operation of motor vehicles while under the influence of intoxicating liquors, in case of doubt the weight and value of the practical construction placed upon the section by the officials charged with its administration would be helpful in resolving the doubt.

Error to a judgment of the Hustings Court of the city of Richmond. Hon. John L. Ingram, judge presiding.

The opinion states the case.

Abram P. Staples, Attorney-General, and S. W. Shelton, Assistant Attorney-General, for the Commonwealth.

W. A. Hall, Jr., for the appellee.

SPRATLEY, J., delivered the opinion of the court.

On September 21, 1935, W. O. Ellett was convicted, in the Police Court of the city of Richmond, of operating a motor vehicle upon the highways of this State while intoxicated. His penalty was fixed by the police justice at a fine of $100 and costs. The judgment of conviction, in addition, of itself operated to deprive him of the right to drive any such vehicle on the highways of this State for a period of one year from the date thereof. (Acts of Assembly 1934, chapter 144; Virginia Code 1936, section 4722.)

On May 8, 1936, within a year of the above conviction, and in the same court, Ellett was again convicted of a similar offense, committed after September 21, 1935. This conviction carried a penalty of one month in jail and a fine of $100 and costs. Although the penalty imposed was applicable to either a first or second offense, no reference was made to the prior conviction in the second warrant, or in the judgment of conviction thereon.

The Director of the Division of Motor Vehicles, hereinafter referred to as the Director, upon receiving a report of the first conviction, entered an order revoking, for a period of one year from the date of that judgment, the operator's license previously issued to Ellett.

Upon receiving a report of the conviction of May 8, 1936, the Director, on the 25th day of May, 1936, entered another order again revoking the operator's license issued to Ellett, depriving him of the right to drive within the State of Virginia for a period of three years from the date of the last conviction, May 8, 1936.

On December 17, 1938, less than three years after the last conviction, Ellett applied to the Director, in writing, for a new operator's license. This application was denied by the Director on December 20, 1938, on the sole ground...