Kootner v. Commissioner, Division of Motor Vehicles

By JUDGE EDWARD L. RYAN, JR. Lewis Kootner appeals to this court from the action of the Commissioner of the Division of Motor Vehicles in suspending his automobile operator’s license for a period of thirty days, pursuant to the provisions of Code of Virginia (1950), § 46.1-430. The Commissioner’s action was taken, and was based, on the appellant’s following driving record: Convictions Date of Conviction Court Offense (1) Jan. 29, 1968 Municipal Court, Part II, Norfolk, Va. Fail to keep right (2) Dec. 15, 1967 County Court, New Kent Co., Va. Following too close; Accident (3) Nov. 28, 1967 Municipal Court, Va. Beach, Va. Improper turn [459] (4) June 27, 1967 County Court, York County, Va. Improper stopping on highway Accidents (1) February 23, 1968, in Norfolk, Virginia, resulting in personal injury and property damage. (N.B. The appellant was acquitted of the traffic charges arising out of the accident.) (2) June 21, 1968, in Norfolk, Virginia, resulting in property damage. (N.B. No traffic charges involved.) (3) Conviction No. (2), above, involved an accident and minor property damage. Standing alone, this court is not impressed by any one of the above-listed convictions and accidents. It is open to debate that the convictions involved "serious violations," except perhaps for that of December 15, 1967. The accident of the 23rd of February, 1968, did result in "serious property damage," but those of December 15, 1967, and June 21, 1968, involved minimal property damage. In his memorandum of law submitted to the court, the Commissioner speaks of "the totality of Petitioner’s driving record," and the fact that the several convictions and accidents occurred within a relatively short period of time. The Commissioner is vested with discretionary powers, and while this court, in reviewing the actions of the Commissioner, is also vested with broad discretionary powers, it cannot vacate the Commissioner’s order if it is "supported by a preponderance of the evidence and he has applied correct principles of law to the proved facts." Lamb v. Rubin, 198 Va. 628 (1957). The court may, of course, reverse or modify the decision if the Commissioner has been guilty of an "abuse of discretion." (The several other grounds for reversal or modification set out in Code § 46.1-437 appear to have no application in this matter.) [460] Thus, the court, sitting without a jury, must affirm, if the weight of the evidence before the Commissioner overbears, in some degree, the weight upon the other side, not necessarily in quantity, but in effect. In other words, the "totality" of effect. Admittedly, the evidence against the Petitioner is not overwhelming; nevertheless, it is sufficient to support the fact that the Petitioner’s record shows a thoughtless performance on his part. Webster’s New Collegiate Dictionary, 2nd Ed., defines "thoughtless" as "1. Heedless; rash; reckless. 2. Destitute of thought. 3. Not thoughtful; inconsiderate." If this be so, then it follows that the Commissioner was also supported by the preponderance of the evidence in finding that the petitioner "Is habitually a reckless or negligent driver of a motor vehicle." Code of Virginia (1950), § 46.1-430(4). Giving § 46.1-430 a liberal construction, the court being so charged by the General Assembly, and finding that there is sufficient evidence to justify the Commissioner’s order, and that he did not abuse the discretion vested in him, the court must, and hereby does, affirm the decision of the Commissioner. Code of Virginia, Section 46.1-437(e).