                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Frank, Petty and Senior Judge Haley
PUBLISHED


            Argued at Alexandria, Virginia


            AMINATA CAREW
                                                                                OPINION BY
            v.     Record No. 0153-13-4                                  JUDGE JAMES W. HALEY, JR.
                                                                            NOVEMBER 26, 2013
            COMMONWEALTH OF VIRGINIA


                           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                           Lisa B. Kemler, Judge

                           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.


                                                             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.

                                                            II.

                   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 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:

               SUSPENSION             ISSUED: 04/16/2012 DI CLINIC REQUIREMENT
                                      EFFECTIVE: 07/15/2012
                                      ACTION: CLINIC INTERVIEW
                                      NOTIFIED: 06/15/2012 BY DI REMINDER LTR
                                      ORDER DELIVERY DATE: 05/10/2012
                                           ORDER RTRN - UNCLAIMED

The Commonwealth did not present any additional evidence to establish that appellant was

aware that the DMV had suspended her driver’s license.1 At trial, without objection, the

Commonwealth amended the summons to charge a violation of Code § 46.2-300.

                                                III.

       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.


       1
          The Commonwealth did not argue, either at trial or on appeal, that the DMV record
established that appellant had actual notice her license was suspended. Rather, the
Commonwealth’s consistent argument throughout this case has been that notice is not required
for a conviction under Code § 46.2-300. Thus, for purposes of this appeal we will assume that
the Commonwealth did not establish that appellant had actual notice of the suspension of her
driver’s license.

                                               -2-
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.2

       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.”3 The Court reversed the defendant’s conviction on appeal, concluding that because the

“evidence expressly shows that [the defendant] did not receive the notice mailed to him . . . the


       2
          Code § 46.2-301(B) states in pertinent part: “A clerk’s notice of suspension of license
for failure to pay fines or costs given in accordance with § 46.2-395 shall be sufficient notice for
the purpose of maintaining a conviction under this section.”
       3
          At the time Bibb was decided, the language of Code § 46.1-350 contained no specific
reference to a notice requirement for conviction. See Code § 46.1-350 (1967 Repl. Vol. & 1970
Cum. Supp.). However, the applicable statutory scheme in Bibb, “Code §§ 46.1-350, -423.1, and
-441.2, . . . provided for notice of the administrative revocation proceeding . . . .” Reed v.
Commonwealth, 15 Va. App. 467, 472, 424 S.E.2d 718, 721 (1992).
                                                 -3-
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 § 46.1-350.4 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




       4
         At the time of the defendant’s arrest for the driving offense in Plummer, August 5,
1989, Code § 46.1-350, containing no reference to notice, remained in effect. See Code
§ 46.1-350 (1986 Repl. Vol. & 1988 Cum. Supp.). Effective October 1, 1989, the General
Assembly repealed Code § 46.1-1 through Code § 46.1-570 and enacted Title 46.2 of the Code
of Virginia, pertaining to motor vehicles.

                                               -4-
Commonwealth must prove the defendant received notice of the suspension.5 Because no such

proof was offered in this case, we reverse appellant’s conviction.6

                                                                                           Reversed.




       5
        We need not, and thus do not, address the elements of proof necessary for a conviction
under Code § 46.2-300 in cases where license invalidity is predicated on some ground other than
a suspension. “An appellate court decides cases on the best and narrowest ground available.”
Podracky v. Commonwealth, 52 Va. App. 130, 134, 662 S.E.2d 81, 84 (2008) (internal quotation
marks and brackets omitted).
       6
          We note that Code § 46.2-104 requires that “[t]he operator of any motor vehicle . . . on
the highways in the Commonwealth[] shall have in his possession . . . his driver’s license” and
that the failure to do so constitutes a traffic infraction requiring a court appearance. This statute
thus provides the opportunity for the operator to receive actual notice of the status of his license.
                                                   -5-
