November 26, 2013
COMMONWEALTH of Virginia.
Kimberly C. Stover, Assistant Public Defender, for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: FRANK and PETTY JJ., and HALEY, S.J.
[62 Va.App. 575] I.
The trial court convicted Aminata Carew (appellant) of driving a motor vehicle without a valid driver's license in violation of Code § 46.2-300. Appellant essentially contends the evidence was insufficient for conviction, because that evidence did not show she had been notified that her license was suspended and thus invalid. We agree and reverse the conviction.
On the night of July 22, 2012, Officer Marcelo Carvajal stopped the vehicle appellant was driving because her headlights were not illuminated. When the officer asked appellant for her driver's license, she said she had left it at home. At the scene, when Carvajal " ran" appellant's driving record, he learned that her license had been suspended. She was given a summons alleging a violation of Code § 46.2-301, driving on a suspended license, which is penalized as a Class 1 misdemeanor. The Department of Motor Vehicles (DMV) record, which the Commonwealth admitted at trial, showed that appellant had been issued a driver's license on September 9, 2011 with an expiration date of September 10, 2013 and that her license was administratively suspended on July 15, 2012 for not completing a " clinic interview." A copy of the order requiring [62 Va.App. 576] appellant to attend the clinic interview was sent to appellant by the DMV by certified mail, but the letter was returned " unclaimed" on May 10, 2012. With regard to the license suspension, appellant's driving record also indicated as follows:
||ISSUED: 04/16/2012 DI CLINIC REQUIREMENT
||NOTIFIED: 06/15/2012 BY DI REMINDER LTR
||ORDER DELIVERY DATE: 05/10/2012
The Commonwealth did not present any additional evidence to establish that appellant was aware that the DMV had suspended her driver's license. At trial, without objection, the Commonwealth amended the summons to charge a violation of Code § 46.2-300.
Code § 46.2-300 provides:
No person, except those expressly exempted in §§ 46.2-303 through 46.2-308, shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver's license, as provided in this article, satisfactorily passed the examination required by § 46.2-325, and obtained a driver's license, nor unless the license is valid.
A violation of this section is a Class 2 misdemeanor. A second or subsequent violation of this section is a Class 1 misdemeanor.
Upon conviction under this section, the court may suspend the person's privilege to drive for a period not to exceed 90 days.
[62 Va.App. 577] A Class 2 misdemeanor carries a punishment of up to 6 months in jail and a fine of $1000, either or both. See Code § 18.2-11(b).
Patently, Code § 46.2-300 contains no language specifically requiring the Commonwealth to prove a driver's knowledge of his license status for a conviction under that statute. By contrast, Code § 46.2-301, which prohibits driving on a suspended or revoked license, specifically references a requirement of notice for conviction.
In Edenton v. Commonwealth, 227 Va. 413, 316 S.E.2d 736 (1984), the Supreme Court of Virginia considered whether then Code § 46.1-349, the statutory predecessor to Code 46.2-300, was a lesser-included offense of driving after having been declared a habitual offender. The Court observed that " [t]he gravamen of the misdemeanor [conviction under Code § 46.1-349]— the crucial element— is the act of operating a motor vehicle by a driver who has not obtained a valid operator's license by making a lawful application and passing the required examination." Id. at 417, 316 S.E.2d at 738.
In Bibb v. Commonwealth, 212 Va. 249, 249-50, 183 S.E.2d 732, 733 (1971), in a prosecution for driving on a suspended license under former Code § 46.1-350, a notice of the Division of Motor Vehicles order of suspension was sent to the defendant at the last known address supplied by him or on file at the Division, but it was returned marked " Moved, left no address."  The Court reversed the defendant's conviction on appeal, concluding that because the " evidence expressly shows [62 Va.App. 578] that [the defendant] did not receive the notice mailed to him ... the evidence does not show that [the defendant] knew his license had been suspended...." Id. at 250, 183 S.E.2d at 733.
In Plummer v. Commonwealth, 13 Va.App. 13, 14, 408 S.E.2d 765, 765 (1991), we addressed the sufficiency of the Commonwealth's proof of notice in a prosecution for driving on a suspended operator's license in violation of former Code § 46.1-350. This Court rhetorically asked the dispositive question here involved: " What then makes the suspension [of a driver's license] become effective?" Id. at 16, 408 S.E.2d at 766. In response, this Court stated: " Bibb holds that a suspension is not effective when the order is entered but rather when the party charged has been given notice of its entry." Id.
While Plummer addressed a suspended operator's license under Code § 46.1-350 (now Code § 46.2-301), not a violation of Code § 46.2-300, the basis of appellant's violating the latter statute was a suspension of the former Code § 46.1-301. Nevertheless, our inquiry is whether appellant's operator's license was validly suspended. We concluded it was not.
Here, the evidence, appellant's DMV record, recites the notice sent to her was " unclaimed." A license is not suspended until notice of that status is received by the holder. Accordingly, the evidence did not prove that appellant had notice that her driver's license was suspended. When the predicate for invalidity under Code § 46.2-300 is a suspended license, the Commonwealth must prove the defendant received [62 Va.App. 579] notice of the suspension. Because no such proof was offered in this case, we reverse appellant's conviction.