Thomas D. Horne, Chief Judge
David M. Hall, Esquire
10513 Judicial Drive, Suite 100
Fairfax, VA 22030 Eric G. Fiske, Esquire
Assistant Attorney General
Office of the Attorney General
900 East Main Street
Richmond, VA 23219 Gentlemen:
Petitioner seeks judicial review of an order of revocation and suspension entered by the Commissioner of the Department of Motor Vehicles on January 18, 2001. In argument before the Court, the petitioner asserts that he is entitled to have this Court modify the order of the Commissioner so that a "manifest injustice" may be corrected. Va. Code Ann. § 46.2-410.1. For the reasons stated by the Attorney General, the petition will be dismissed without prejudice to the petitioner to seek an extension of a restricted license in the General District Court of Fairfax County.
The Commissioner has revoked the driver's license of the petitioner for a period of three (3) years. Va. Code Ann. § 46.2-391. Revocation of his license is based upon his having been twice convicted within a period of ten years, for driving under the influence. These two convictions were obtained on January 16, 1996, (offense date of 12/17/95) and December 27, 2000, (offense date 9/17/00).
As counsel for the respondent has observed, at the time of the conviction of the defendant, it was not, as is now the case, necessary that a person be charged or convicted as a second offender in order for the three year suspension period to apply. Va. Code Ann. §§ 18.2-271, 46.2-391.
Petitioner relies upon the express provisions of the Court order adjudicating him guilty of driving under the influence. That order reflects that the Defendant was found guilty as a first offender. The trial court then suspended the driver's license of the petitioner for the one-year period prescribed for first offenders. However, the legislature has mandated that the conviction, of itself, operated to deprive the petitioner of his privilege to operate a vehicle for a longer period than that imposed by the trial court. Va. Code Ann. §18.2-271.
Should the legislature have wished to restrict the revocation of license for the three year period to those instances only where a driver has been charged and convicted of a second offense, they would, as they did in recent amendments to the statute, have so stated. At the time of the entry of the Commissioner's order in this case, it was the intent of the legislature that the existence of a second conviction required a three-year suspension of license.
In order for the petitioner to prevail, he must show that the Commissioner has committed a "manifest injustice". A "manifest injustice" is defined as "...those instances where the Commissioner 's order was the result of an error or was issued without authority or jurisdiction, or actually conflicts with a final order of a court in the Commonwealth."
It is immaterial that the conviction was as a result of the plea bargain process or reflects a bona fide dispute as to the merits of the first driving under the influence charge. While the Commissioner is required to follow matters left by the legislature to the discretion of the trial court, in so doing he was not required to abdicate his responsibility to follow the mandate of the legislature. Thus, the determination of the trial court that the petitioner was entitled to a restricted permit was, as the Commissioner has recognized in the order of revocation, binding upon the Commonwealth with the exception of the first four months during which second offenders may not possess such a license.
The actions of the trial court and of the Commissioner can be harmonized. Those of the Commissioner are remedial and administrative in nature while those of the trial court are penal. The actions of the Commissioner are a reflection of his obligation to carry out the legislature's concern for public safety. During the period germane to this case the legislature mandated revocation without requiring second offender status to be pled. It is unnecessary to the application of the period of suspension that the motives of either the trial court or counsel be explored.
Commissioner's order was not the result of error or without authority or jurisdiction. It does not conflict with the order of the General District Court of Fairfax County. It respects and supplements the trial court's proper exercise of judicial discretion while upholding the legislature's mandate with respect the limitation put on a second offender's privilege to operate a vehicle in the Commonwealth.
The petition will be dismissed. Petitioner remains eligible to obtain a restricted license through the District Court.
Mr. Fiske may draw a Final Order consistent with this opinion to which counsel for the petitioner may note his exceptions.
Very truly yours,
Thomas D. Horne, Chief Judge