                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia


COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF MOTOR VEHICLES
                                        MEMORANDUM OPINION*
v.        Record No. 2012-96-1       BY JUDGE JOSEPH E. BAKER
                                          JULY 15, 1997
GARY WAYNE STAFFORD


        FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                 V. Thomas Forehand, Jr., Judge
          Eric K. G. Fiske, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          briefs), for appellant.

          Allen J. Gordon for appellee.



     On May 24, 1995, Gary Wayne Stafford (Stafford) was declared

an habitual offender by the Circuit Court of the City of

Chesapeake (trial court) and ordered not to operate a motor

vehicle for a period of ten years from the date of the order or

until his privilege to drive "has been restored by Order of a

Court of record entered in a proceeding in accordance with law

pursuant to the statutes made and provided."   On July 31, 1996,

the trial court issued Stafford a restricted license to drive to

his place of employment and substance abuse program.   In this

appeal from the July 31, 1996 order, the Commonwealth of

Virginia, Department of Motor Vehicles (DMV) contends that the

trial court was without legal authority to grant a restricted

____________________

     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
license to Stafford because neither the ten-year prohibition

period nor the requirements of Code § 46.2-360 1 had been met.

       Stafford asserts that we should not consider the issue

presented by this appeal because the DMV (1) did not preserve the

issue for appeal and (2) failed to provide this Court with a

transcript of the proceedings below, or a written statement of

facts in lieu thereof.   We have reviewed the record and find that

the issue presented here was contained in the DMV's motion to

dismiss made in the trial court and there denied.
       Stafford further contends that because of the DMV's failure

to timely file a transcript or written statement of facts, this

matter should be dismissed without further consideration.       See

Rule 5A:8; Barrett v. Barrett, 1 Va. App. 378, 339 S.E.2d 208

(1986).   The filing of a transcript is not mandatory, and the

failure to file a transcript does not per se foreclose our

consideration of an appeal.    Wolfe v. Commonwealth, 6 Va. App.

640, 643, 371 S.E.2d 314, 315 (1988).   "If the record on appeal

is sufficient in the absence of the transcript to determine the

   1
    Code § 46.2-360 sets forth the requirements for restoration of

the privilege of operating a motor vehicle to a person who has

been adjudicated an habitual offender where the adjudication was

based in part and dependent on a conviction for driving or

operating a motor vehicle while under the influence of

intoxicants.




                                - 2 -
merits of the appellant's allegation, we are free to proceed to

hear the case."    Turner v. Commonwealth, 2 Va. App. 96, 99, 341

S.E.2d 400, 402 (1986).

     In the case before us, the record contains Stafford's DMV

driver history record, correspondence from the DMV regarding his

status as a possible habitual offender, correspondence from the

DMV regarding the suspension of his license, the order declaring

Stafford to be an habitual offender, and the trial court order

restoring to Stafford the privilege to drive under a restricted

license.   We hold that the record is sufficient in the absence of

a transcript or written statement to determine the merits of the

DMV's case.
     A DMV Transcript of Stafford's Driver History Record, duly

certified in accordance with Code § 46.2-215, is contained in the

record.    The transcript, among other things, discloses the

following relevant entries:
          CONVICTED ON 10/02/84 DRIVING WHILE INTOX, 1ST

            CONVICTED ON 05/01/88 DRIVING UNDER
            REVOCATION/SUSPENSION

            CONVICTED ON 12/30/92 DRIVING WHILE INTOX, 1ST

            CERTIFIED ON: 01/27/93 AS A POSSIBLE
            HABITUAL OFFENDER
            CHESAPEAKE CITY
            DISPOSITION: UNABLE TO SERVE

            CERTIFIED ON: 04/13/94 AS A POSSIBLE
            HABITUAL OFFENDER
            VIRGINIA BEACH CITY
            DISPOSITION: DISREGARD/NEW ADDRESS

            CERTIFIED ON: 01/30/95 AS A POSSIBLE
            HABITUAL OFFENDER


                                - 3 -
          CHESAPEAKE CITY
          DISPOSITION: LIC DENIAL PENDING


     Following the receipt by the DMV of notice from the

Chesapeake General District Court that Stafford had been

convicted of driving while intoxicated, the DMV issued

certifications that Stafford's driving record indicated he was

possibly an habitual offender pursuant to Code § 46.2-352.     The

January 27, 1993 certification could not be served.   The April

13, 1994 certification was abandoned due to address problems.

The January 30, 1995 certification was served, a hearing was held

pursuant thereto, and Stafford was declared an habitual offender

on May 24, 1995.
     When validly issued, such certification requires that the

DMV deny Stafford issuance of a driver's license until the DMV

receives one of the following:    (1) documentation from the

prosecutor's office stating that there is a valid reason not to

make a determination that the person is an habitual offender; (2)

a court order reversing the DMV certification; or (3) an order of

license restoration.

     On April 25, 1996, Stafford petitioned the trial court to

"restore to him the privilege to operate a motor vehicle upon

such terms and conditions as the Court may prescribe."   The trial

court granted him a restricted license to drive to and from his

place of employment and a substance abuse program in an order

dated July 31, 1996.   The DMV contends that the trial court's

order was entered contrary to and not in accord with statutes



                                 - 4 -
permitting such relief.     We agree.

       Stafford contends that subparagraph 2 of Code § 46.2-360

authorized the trial court to grant the relief contained in its

July 31, 1996 order.   Code § 46.2-360(2) provides, in relevant

part, that after three years from the date a person has been

declared an habitual offender such person may be granted a

restricted license upon a showing that at the time of the

declaration he was addicted to alcohol, that "he is no longer

addicted to or psychologically dependent on the use of alcohol
. . .," and that "the defendant does not constitute a threat to

the safety and welfare of himself and others with regard to the

driving of a motor vehicle."    Simply put, the DMV contends that

three years have not passed since the entry of the habitual

offender order 2 and, therefore, the trial court did not have

legal authority to issue a restricted license.

       Stafford responds that he was eligible for restoration of

his license by the trial court because the last paragraph of Code

§ 46.2-360 contains the following provision:
            In the computation of the . . . three-year
          period[ ] under subdivision[ ] . . . 2 of
          this section, such person shall be given
          credit for any period his driver's license
          was administratively revoked under § 46.2-391
          prior to the final order or notification by
          the Commissioner of the habitual offender

   2
    The habitual offender declaration was made on May 24, 1995.

The trial court's order from which this appeal emanates was

entered on July 31, 1996.



                                 - 5 -
          determination.


Stafford asserts that when the DMV, on January 27, 1993,

certified him as "a possible habitual offender," it thereby

"administratively suspended [Stafford's] driver's license."

Therefore, pursuant to Code § 46.2-360, Stafford contends he




                              - 6 -
should be given credit for the time elapsed between January 27,

1993 and the May 24, 1995 habitual offender order.    We disagree.

     Code § 46.2-391, referenced in the last paragraph of Code

§ 46.2-360, applies to an administrative revocation where a

person "is adjudged to be a second offender in violation of . . .

§ 18.2-266 pertaining to driving under the influence of . . .

intoxicants."    Code § 46.2-391 (emphasis added).   Although the

DMV transcript shows that Stafford was twice convicted for

driving while intoxicated, it does not disclose that he has been

charged or "adjudged to be a second offender" as provided in the

Virginia Code.    See Code §§ 46.2-391, 18.2-270, 18.2-271.

Therefore, he is not entitled to the credit in the last paragraph

of Code § 46.2-360.

     The trial court's restoration of Stafford's license was not

in accord with the specific language and requirements of the code

provisions applicable to this case.     Because Stafford has failed

to show that three years have elapsed since the date the habitual

offender order was entered, the trial court was without legal

authority to issue a restricted driver's license to him.

     Accordingly, for the reasons stated, we reverse the judgment

of the trial court and dismiss Stafford's petition.
                                             Reversed and dismissed.




                                - 7 -
