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Sink v. Commonwealth1/21/1992
[13 VaApp Page 545] William Lee Sink seeks reversal of a final judgment, entered on October 9, 1990, adjudicating him to be an habitual offender. He argues that the Commonwealth waived its right to have him adJudged an habitual offender because (1) after the last
predicate conviction on December 18, 1989, the Commissioner of the Department of Motor Vehicles issued him an operator's license on June 18, 1990; (2) the Roanoke County's Commonwealth's Attorney did not file an information until July 24, 1990; (3) the court that convicted him on December 18, 1989, of driving while intoxicated did not treat the conviction as a subsequent offense; or because (4) of the combination of these facts. We disagree and affirm the judgment because, notwithstanding any of the aforementioned actions by agents of the Commonwealth, the Commonwealth, as a matter of law, may not be deemed to have waived its duty to have Sink declared an habitual offender.
(1) The purpose of the habitual offender provisions in Code §§ 46.2-351 to -355 is to protect the public by removing from the roads a dangerous driver. See Salama v. Commonwealth, 8 Va. App. 320, 323, 380 S.E.2d 433, 435 (1989). Enforcement of the Habitual Offender Act is a governmental function. See Code §§ 46.2-351 to -355.
(2) In order for a person to be declared an habitual offender, the Commonwealth must prove the person was convicted of three or more specified offenses arising out of separate acts within a ten-year period. Code § 46.2-351. The specified offenses include driving a motor vehicle while under the influence of intoxicants in violation of Code § 18.2-266. Id. Sink has been convicted of three separate driving while intoxicated offenses specified in Code § 46.2-351 within a ten-year period, on August 20, 1984, March 19, 1985, and on December 18, 1989. Thus, he was shown to be an habitual offender as defined in the statute.
The Habitual Offender Act is expressed in mandatory terms: the "Commissioner [of the Department of Motor Vehicles] shall certify" to the Commonwealth's Attorney the driving record of the alleged offender; the Commonwealth's attorney " shall forth-with file information against the person named therein;" the "court in which an information is filed shall enter an order . . . directed to the person named . . . therein, to show cause why he should not be barred from driving a motor vehicle;" a copy of the show cause order " shall be served on the person named therein in the manner prescribed by § 8.01-296(1);" and "if the court finds that the person is an habitual offender, the court shall so find and by appropriate order direct the person not to operate a motor vehicle." Code §§ 46.2-351 to -355 (emphasis added). Thus it is clear
that the General Assembly intended, if a respondent satisfies the statutory requisites, that there be no discretion in enforcing the Habitual Offender Act, except as provided in Code § 46.2-352.
(3) An agency of the federal government by its actions or conduct may not estop the federal government from exercising its governmental function. United States v. Stewart, 311 U.S. 60, 70 (1940). Although no statute or constitutional provision in Virginia provides expressly that an agent of the Commonwealth may not waive the enforcement of state law, we hold that the doctrines of laches and estoppel may not be employed to bar the state f
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