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Potter v. Commonwealth3/27/1990
psed between the certification of the abstracts by DMV and the filing of the petition by the Commonwealth's attorney. The only reason given for the delay was the inability of the Commonwealth's attorney to process the information in a more expeditious fashion due to a heavy case load. We agree with Potter that the Commonwealth failed to provide a satisfactory excuse for the lengthy delay. Under these facts, the filing was not "forthwith."
(4) We disagree with Potter's contention, however, that dismissal of the information was appropriate under the circumstances. Code § 46.1-387.9:2 allows a person adjudged an habitual offender under Code § 46.1-387.2 to petition the court for restoration of the privilege to operate a motor vehicle after the expiration of five years from the date of the habitual offender adjudication. Potter alleges prejudice flowing from the Commonwealth's delay in filing the information, which resulted in his being deprived of his driving privileges eleven months longer than if the Commonwealth had complied with the statutory framework. We are unpersuaded by this position. According to the record, Potter's license had been suspended for a ten year period as of April 26, 1984. Potter's license was further suspended indefinitely on June 15, 1984. As a result of these prior adjudications, Potter was not privileged to operate a motor vehicle at the time of the DMV certification or at any time prior to entry of the court's order. Potter's inability to drive during this period was not a product of the Commonwealth's delay in filing the information. See Garton, 2 Kan. App. 2d at 712, 586 P.2d at 1388. Moreover, because Potter was barred from operating a motor vehicle until April 26, 1994 under the previously imposed suspension, an eleven month delay in Potter's eligibility to seek restoration of driving privileges after five years cannot be considered prejudicial under the circumstances. We conclude that, in the absence of a showing of prejudice by the delay, dismissal of the information is not appropriate. See id. at 711, 586 P.2d at 1388.
For the foregoing reasons, the judgment of the circuit court is affirmed.
Disposition
Affirmed.
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