Simmons v. Com.

• Decision Date: 13 September 1996
• Docket Number: No. 951916,951916
• Citation: 252 Va. 118,475 S.E.2d 806
• Court: Virginia Supreme Court
• Parties: Joseph M. SIMMONS v. COMMONWEALTH of Virginia. Record

Page 806

475 S.E.2d 806

252 Va. 118

Joseph M. SIMMONS v. COMMONWEALTH of Virginia.

Record No. 951916.

Supreme Court of Virginia.

Sept. 13, 1996.

Frank A. Mika, Waynesboro, for Appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for Appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, HASSELL and KEENAN, JJ., POFF, Senior Justice, and COCHRAN, Retired Justice.

CARRICO, Chief Justice.

This appeal presents the question whether the trial court erred in holding that neither res judicata nor collateral estoppel ¹ bars a court from suspending a person's operator's license for one year for his refusal to take a blood or breath alcohol test when he has already suffered a seven-day administrative suspension for the same refusal. ² Finding that the trial court did not err, we will affirm.

The seven-day administrative suspension was made pursuant to Code § 46.2-391.2, which provides in pertinent part that if a person refuses to submit to a breath test in violation of Code § 18.2-268.3, his license shall be suspended immediately for seven days. Section 18.2-268.3, referred to in § 46.2-391.2, prescribes the procedures to be followed if a person, after having been arrested for driving under the influence, refuses to permit blood or breath samples to be taken for chemical tests to determine the alcohol or drug content of his blood. Section 18.2-268.4 provides that if a person is found guilty of violating § 18.2-268.3, the court shall suspend his privilege to drive for a period of one year, in addition to the administrative suspension imposed under § 46.2-391.2.

The record shows that on February 16, 1995, the defendant, Joseph M. Simmons, upon his refusal to submit to a blood or breath test, was served with a notice of administrative suspension pursuant to § 46.2-391.2, and his license was "taken" for a period of seven days. He was also charged in a warrant with refusing to permit the taking of a breath sample to determine the alcohol content of his blood. In general district court, the defendant was found guilty as charged in the warrant, and his operator's license was suspended for a period of one year. On a de novo appeal to circuit court, he was again found guilty, and his license was again suspended for a period of one year.

Citing Wright v. Wright, 164 Va. 245, 252, 178 S.E. 884, 886 (1935), the defendant correctly points out that for res judicata to bar the prosecution of a second action, the judgment in the former action must have been rendered on the merits by a court of competent jurisdiction and the parties and the matters in controversy must be the same in the two actions. The defendant also correctly points out that the plea of res judicata and the plea of collateral estoppel, while not identical, "are based upon similar principles of law, namely the conclusiveness of judgments of the Court, and the effect of a judgment as estoppel." The difference between the two pleas, the defendant notes, lies in what is concluded by the first judgment. Under res judicata, the first judgment bars the parties and their privies not only from relitigating the issues actually determined but also from litigating those that might have been determined; under collateral estoppel,...