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Commonwealth v. Rafferty3/1/1991
§ 8.01-670, which authorizes an appeal to this Court by "any person... aggrieved by a final judgment in any other civil case." Thus, this Court has jurisdiction.
We now turn to the merits of the appeal. Rafferty contends that the repeated references to the word "warrant" in Code § 18.2-268(P)-(T) and Fairfax County Code § 82-4-19(p)-(t) indicate a legislative intent that unreasonable refusal charges can be initiated only by use of a warrant and not by a summons. We do not agree.
The General Assembly specifically has provided that magistrates can issue summonses instead of warrants "in any case involving complaints made by any... local governmental official or employee having responsibility for the enforcement of any statute...." Code § 19.2-73. However, Rafferty claims that Code § 19.2-73 is inapplicable because he was already in the arresting officer's custody on the drunk driving charge. But a drunk driving misdemeanor charge and an unreasonable refusal civil charge are "two separate and distinct proceedings.... Each action proceeds independently of the other...." Deaner, 210 Va. at 289, 170 S.E.2d at 201.
Nor does it matter that the summons contained language warning that a willful failure to appear in response thereto would subject Rafferty to additional penalties. Even though the Deaner defendant was served with a criminal warrant, we noted that he could not be subjected to nonappearance penalties. Id. at 290, 170 S.E.2d at 202. Paraphrasing Deaner, neither could Rafferty "be fined or imprisoned... for his failure to appear at a hearing." Id. Accordingly, we hold that the proceeding was properly initiated by a summons.
Finally, Rafferty claims that there can be no prosecution in this case because the magistrate's certificate of his refusal was not "attached to the warrant," as required by Code § 18.2-268(Q). (Emphasis added.) We disagree. In construing another statute directing the act by the word "shall," as in this case, we said " statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute." Nelms v. Vaughan, 84 Va. 696, 699, 5 S.E. 704,
706 (1888) (citation omitted). As in Nelms, we do not construe use of the word "shall" as a sufficient legislative declaration making attachment of the certificate essential to the validity of this proceeding. Hence, the magistrate's failure to attach the certificate to the summons was not fatal.
Because the trial court erred in sustaining Rafferty's motion to strike, we will reverse its judgment and remand the case for further proceedings.
Reversed and remanded.
Disposition
Reversed and remanded.
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