Virginia Habitual Offender Act
The right to operate a motor vehicle is a property right that cannot be taken away without due process of law. Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971); Walton v. Commonwealth, 255 Va. 422, 428, 497 S.E.2d 869, 873 (1998).
At a minimum, a person whose license to drive has been rescinded is entitled to a post-deprivation review. See generally Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979); Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977).
In 1995, the General Assembly enacted amendments to the Habitual Offender Act, former Code 46.2-351 through -355, allowing habitual offender determinations to be made initially by the DMV.
Former Code 46.2-352(A) provided the process by which the Commissioner should determine someone to be an habitual offender.
In former Code 46.2-352(B), the General Assembly granted a person declared to be an habitual offender the right to judicial review of that determination.
Former Code 46.2-352(A) also required the Commissioner to notify persons determined to be habitual offenders that they had the right to a review. However, the statute did not specify a time period within which a petition for review had to be filed.
In 1999, the General Assembly repealed sections 46.2-351 though 46.2-355 of the Habitual Offender Act, including the process by which one could be determined an habitual offender and the process by which one could seek judicial review of that determination.
In repealing the statute, the General Assembly did not state that the statute was repealed retroactively. Thus, it did not explicitly eliminate the right of those individuals found to be habitual offenders under former Code 46.2-352 to petition for judicial review.
As the Virginia Supreme Court noted in Ferguson v. Ferguson, 169 Va. 77, 192 S.E. 774 (1937):
All authorities appear to approve of the rule that statutes will be presumed to have been intended by the legislature to be prospective and not retrospective in their action where a retrospective effect would work injustice and disturb rights acquired under the former law. Some courts take the view that since limitation laws apply only to the remedy, they are not within the principle that statutes should be given a prospective rather than a retrospective construction . . . . The rule under consideration is not everywhere recognized.
There appears to be no good reason for excluding statutes of limitation, or remedial statutes, from the general rule, that retroactive or retrospective legislation is not favored, in the absence of any words expressing a contrary intention. . . . It is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention. . . . It is not to be presumed that the legislature intends to work an injustice. Ferguson, 169 Va. at 85, 86-87, 192 S.E. at 776, 777.
In Ferguson, the statute in question changed the time to file a bill in equity to impeach a will from two years to one year.
The Court held that the statute did not apply retroactively because, "there is nothing in the language of the amended statute to declare or to indicate that the legislature intended to give to it a retroactive operation." Id. at 85, 192 S.E. at 776;
Allen v. Mottley Constr. Co., 160 Va. 875, 889, 170 S.E. 412, 417 (1933) (the General Assembly's use of the term "an award" in the new statute of limitation demonstrated an intent for the limitation to apply retroactively to awards made prior to the passing of the statute);
Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570 (1948) (limitation law applied retroactively where statute clearly stated retroactive intent);
McIntosh v. Commonwealth, 213 Va. 330, 331-32, 191 S.E.2d 791, 792-93 (1972) (finding that amendment to Habitual Offender Act should not be applied retroactively where no indication of legislative intent to do so).