                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia


VENESSA M. MONGER
                                           MEMORANDUM OPINION * BY
v.   Record No. 1926-00-2               JUDGE JEAN HARRISON CLEMENTS
                                              NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                      William L. Wellons, Judge

            Randall J. Trost (Randall J. Trost, P.C., on
            brief), for appellant.

            Jeffrey A. Spencer, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Venessa M. Monger appeals from an order of the trial court

affirming the decision of the Department of Motor Vehicles

declaring her an habitual offender pursuant to Code § 46.2-351. 1

On appeal, Monger contends the trial court erred (1) in ruling

that the second and third convictions upon which the habitual

offender determination was based resulted from offenses that arose

"out of separate acts," within the meaning of Code § 46.2-351; (2)

in ruling that Code § 46.2-351 did not violate the Equal

Protection Clause; and (3) by not allowing the rebuttal testimony



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
         Code § 46.2-351 was repealed in 1999.
of Officer Redd.   Finding no error, we affirm the decision of the

trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of

the proceedings as necessary to the parties' understanding of

the disposition of this appeal.

     Under well-settled principles of appellate review, we

examine the evidence and all reasonable inferences fairly

deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party below.    Burlile v.

Commonwealth, 32 Va. App. 796, 798, 531 S.E.2d 26, 27 (2000).

In determining whether the trial court made an error of law, "we

review the trial court's statutory interpretations and legal

conclusions de novo."    Timbers v. Commonwealth, 28 Va. App. 187,

193, 503 S.E.2d 233, 236 (1998).

     The facts relative to the matters before us are not in

dispute.   On November 25, 1992, Monger was convicted in the

General District Court of Halifax County of driving under a

suspended license on September 3, 1992, in violation of Code

§ 46.2-301.    On March 17, 1997, Monger was convicted in the

General District Court of Halifax County of driving while

intoxicated on October 25, 1996, in violation of Code

§ 18.2-266, and of driving under a suspended license on October

25, 1996, in violation of a Halifax local ordinance.      The latter

                                - 2 -
two offenses occurred simultaneously.      On April 3, 1997, the

Department of Motor Vehicles declared Monger an habitual

offender.   Monger appealed to the trial court, which affirmed

the determination.    This appeal followed.

                 I.   HABITUAL OFFENDER DETERMINATION

     As pertinent to this case, an habitual offender is defined

under Code § 46.2-351 as one who has accumulated within ten

years:

                 1. Three or more convictions, . . .
            singularly or in combination, of the
            following separate offenses arising out of
            separate acts:

            *     *       *       *        *      *      *

                 b. Driving or operating a motor
            vehicle while under the influence of
            intoxicants or drugs in violation of
            § 18.2-266 or subsection A of § 46.2-341.24;

                 c. Driving a motor vehicle while his
            license, permit, or privilege to drive a
            motor vehicle has been suspended or revoked
            in violation of §§ 18.2-272, 46.2-301,
            46.2-302, or former § 46.1-350 or
            § 46.1-351; . . . .

     Monger contends that, because her 1997 convictions for

driving while intoxicated and driving under a suspended license

resulted from offenses that occurred simultaneously during the

same act of driving, they did not arise "out of separate acts,"

as required by Code § 46.2-351.       Thus, she argues, for purposes

of the Habitual Offender Act, her second and third convictions

should count as only a single conviction.      Accordingly, she


                                 - 3 -
concludes, the trial court erred in affirming the Department of

Motor Vehicles' determination that she is an habitual offender.

     The Virginia Supreme Court addressed the same argument in

Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971).

There, the Court, in adopting the analysis used for a similar

provision in the predecessor to Code § 19.2-294, said that "one

occasion of driving an automobile may give rise to several acts

and offenses and that the test of whether there are separate

acts sustaining several offenses 'is whether the same evidence

is required to sustain them.'"     Id. at 24, 181 S.E.2d at 623-24

(quoting Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d

336, 337 (1952)).   Applying that test, the Court went on to hold

that, for purposes of the Habitual Offender Act, defendant's

convictions for driving under the influence and driving under a

suspended license, although resulting from offenses that were

committed at the same time, "arose 'out of separate acts'—one

out of the act of driving under the influence and the other out

of the act of driving on a suspended license."     Id. at 24-25,

181 S.E.2d at 624. "Therefore," the Supreme Court concluded,

"the convictions must be counted individually as second and

third convictions, thereby constituting the defendant an

habitual offender."   Id. at 25, 181 S.E.2d at 624.

     Monger acknowledges on appeal that the instant case is

squarely on point with Estes.    She contends, however, that the

Supreme Court implicitly overruled Estes in ruling in Padgett v.

                                 - 4 -
Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389 (1980) (per

curiam), that the language "the same act or acts" in Code

§ 19.2-294.1 means the "same act or acts of driving."

     We do not share Monger's view.     For one thing, the Supreme

Court was asked in Padgett solely to interpret Code § 19.2-294.1 2

relative to a defendant who, as a result of a high speed chase

across jurisdictional lines, was convicted of reckless driving

in one venue and of driving while intoxicated in another.       In

order to give effect to the statute, the Supreme Court construed

the statute's language, "'the same act or acts,' to mean 'the

same act or acts' of driving and to contemplate a continuous,

uninterrupted course of operation of a motor vehicle, without

regard to the crossing of the boundary line between two

localities."    Id. at 761, 263 S.E.2d at 389-90.   Without such a

construction, the statute would be rendered essentially

meaningless by the usual interpretation of "same act" that is

utilized in Code § 19.2-294 and double jeopardy analyses.

     Furthermore, Code § 19.2-294.1 "deals only with the

offenses of driving while intoxicated and reckless driving; it

applies to no other criminal offenses."     Lash v. County of


     2
         Code § 19.2-294.1 provides, in pertinent part:

                 Whenever any person is charged with
            [driving while intoxicated] and reckless
            driving growing out of the same act or acts
            and is convicted of one of these charges,
            the court shall dismiss the remaining
            charge.

                                - 5 -
Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853 (1992) (en

banc).   It reflects the fundamental similarity of the two

offenses, see Harris v. City of Virginia Beach, 19 Va. App. 214,

216-17, 450 S.E.2d 401, 402 (1994) (noting that "the commonality

of the underlying offending conduct . . . invokes the preclusive

effect of the statute"), and creates, as to those two offenses,

a "special case of the general policy against conviction for two

statutory offenses growing from the same act which is announced

by Va. Code § 19.2-294," John L. Costello, Virginia Criminal Law

and Procedure § 27.1-1 (2nd ed. 1995).

     Consequently, we do not believe that the legislature or

Supreme Court intended that the Supreme Court's interpretation

in Padgett of Code § 19.2-294.1, limited in application as it

was to the two offenses specified in that statute, should be

extended to the offenses and statute now before us.

Accordingly, we conclude that Padgett has not overruled Estes,

implicitly or otherwise.   This view is buttressed by the fact

that this Court has, subsequent to Padgett, employed the Estes

test in cases involving driving offenses under Code § 19.2-294,

see Slater v. Commonwealth, 15 Va. App. 593, 596, 425 S.E.2d

816, 817-18 (1993); Treu v. Commonwealth, 12 Va. App. 996, 997,

406 S.E.2d 676, 677 (1991), and rejected the idea of extending

the Supreme Court's interpretation of Code § 19.2-294.1 in

Padgett to Code § 19.2-294, cf. Slater, 15 Va. App. at 597, 425

S.E.2d at 818 (Benton, J., dissenting).

                               - 6 -
     Thus, following Estes, we conclude that Code § 46.2-351

requires that the three convictions necessary for an habitual

offender determination arise from three separate acts, rather

than from three separate acts of driving, as Monger contends.

Here, the record establishes that Monger was convicted of three

separate offenses arising from three separate acts.     We hold,

therefore, that the trial court did not err in affirming the

Department of Motor Vehicles' habitual offender determination.

                    II.   EQUAL PROTECTION CLAUSE

     As pertinent here, Code § 46.2-351 provides:

                 Where more than one offense included in
            subdivision 1, 2, or 3 is committed within a
            six-hour period, multiple offenses shall, on
            the first such occasion, be treated for the
            purposes of this article as one offense
            provided the person charged has no record of
            prior offenses chargeable under this
            article.

     Monger contends that this provision violates the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution because it discriminates against those who

have prior offenses under the Habitual Offender Act.    We

disagree.

     As we stated in Salama v. Commonwealth, 8 Va. App. 320,

322-23, 380 S.E.2d 433, 434 (1989) (citations and internal

quotation marks omitted):

                 The fourteenth amendment does not
            prohibit classifications in legislative
            enactments. Legislative classifications
            are, however, subject to judicial review.

                                - 7 -
             . . . [C]lassifications not involving
             fundamental rights or inherently suspect
             classifications will survive an equal
             protection challenge if they bear a
             reasonable relation to a legitimate
             governmental objective. This standard of
             review is highly deferential and such
             legislative classifications are presumed
             valid. Classifications will not be deemed
             unconstitutional just because they result in
             some statutory discrimination or inequality.

        Monger acknowledges that the privilege of driving, while

important, is not a fundamental right.     See Lockett v.

Commonwealth, 17 Va. App. 488, 491, 438 S.E.2d 497, 499 (1993).

Accordingly, the appropriate legal standard for determining

whether the statutory classification challenged by Monger

violates the Equal Protection Clause is the "rational basis"

test.     See Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 103, 376

S.E.2d 525, 534 (1989).    "The rational basis test is satisfied

'if the legislature could have reasonably concluded that the

challenged classification would promote a legitimate state

purpose.'"     Id. at 104, 376 S.E.2d at 534 (quoting Exxon Corp.

v. Eagerton, 462 U.S. 176, 196 (1983)).

        It is within the public safety function of the legislature

to pass laws determining who may or may not drive based upon a

person's driving history and to treat those who repeatedly

violate the law differently from those who do not.    The purpose

of the Habitual Offender Act is to protect the public by

preventing those who repeatedly commit the offenses described in

the Act from driving.     See Nesselrodt v. Commonwealth, 19 Va.

                                 - 8 -
App. 448, 450, 452 S.E.2d 676, 677 (1994) (en banc).     Here, in

enacting the subject provision of Code § 46.2-351, the

legislature simply carved out an exception precluding the

unintended result of having a driver with no prior qualifying

convictions under the Habitual Offender Act adjudged an habitual

offender solely on the basis of a single act of driving, rather

than on his or her driving history.

     We find that the challenged provision is rationally related

to a legitimate government interest.     We hold, therefore, that

Monger's claim under the Equal Protection Clause of the United

States Constitution is without merit.

         III.   ADMISSIBILITY OF OFFICER REDD'S TESTIMONY

     At trial, the Commonwealth presented evidence of Monger's

March 17, 1997 conviction of driving under a suspended license

in violation of a Halifax local ordinance.    Monger called

Officer R.E. Redd, a narcotics investigator for the Town of

South Boston, as a rebuttal witness.     The following exchange

took place between Monger's counsel and Redd:

               Q. Officer, you work in the South
          Boston, Halifax area, correct?

                A.   That's correct.

               Q. And in that connection, have you
          had occasion to be familiar with South
          Boston's ordinances?

                A.   Yes, sir, I have.

               Q. And in that connection, you're
          aware of the fact that there are no


                                - 9 -
            ordinances concerning traffic infractions of
            Halifax County?

At that point, the Commonwealth objected.    The trial court

sustained the Commonwealth's objection, ruling that the

testimony of the witness was not the appropriate method of

proving the existence or nonexistence of the ordinance.

     Monger contends the trial court erred in not permitting

Redd to testify regarding the local ordinance that served as the

basis for Monger's second qualifying offense under Code

§ 46.2-351.   Such testimony, Monger argues, should have been

allowed because it would have rebutted the Commonwealth's prima

facie case that she had been convicted of three qualifying

offenses.

     Code § 8.01-386 provides the mechanism for the court to

take judicial notice of a local ordinance.   Monger, however, did

not pursue this statutory method.    Instead, she sought to prove

the nonexistence of the ordinance by attempting to introduce the

hearsay testimony of Officer Redd.

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842




                               - 10 -
(1988).   We hold the trial court did not abuse its discretion by

not allowing the hearsay testimony of Officer Redd. 3

     Accordingly, we affirm the decision of the trial court.

                                                        Affirmed.




     3
       Because it was never presented to the trial court, we do
not address Monger's further argument that Redd should have been
allowed to testify about the local ordinance because he was an
expert witness. See Rule 5A:18.


                              - 11 -
