8.7 Administrative Loss of License

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

8.7 ADMINISTRATIVE LOSS OF LICENSE

8.701 Administrative Pretrial Suspension for DUI and Refusal.

A. Suspension Incident to Arrest. When a driver is arrested for any DUI-related offense, including those resulting in death or injury, or when the driver refuses to take a breath or blood test or a breath test shows a BAC of .08 or higher (.02 or higher if the driver is underage), the arresting officer is directed to immediately issue a notice of suspension of the privilege to drive for seven days. If the charge is for a second offense, the suspension lasts for 60 days or until the date and time of trial. A third or subsequent offense carries a pretrial suspension that remains in effect until the date and time of trial. ²⁰⁰ Regardless of the offense level, the initial seven-day suspension is mandatory, and no restricted privilege to drive can be issued by the court while this suspension remains in effect, even if trial occurs during that time. ²⁰¹ When the arresting officer issues a notice of suspension to the driver, the officer also takes possession of the person's license. The notice of suspension that the officer gives to the driver must state the statutory grounds for the suspension, the effective date and duration, the driver's right to an expedited hearing to review the probable cause issues, and the procedures to request such a review. ²⁰²

B. Pretrial Hearing. At any time during the period of license suspension under section 46.2-391.2, an accused may request a court hearing to review the pretrial suspension and to attempt to prove by a preponderance of the evidence that the arresting officer or the magistrate did not have probable cause for the arrest. ²⁰³ Under the terms of the statute, this type of hearing has scheduling precedence on the court's docket over all other matters. The statute provides that the period of administrative suspension may be rescinded or reduced as a result of this probable cause hearing. ²⁰⁴ As a practical matter, this may become more important with the enhanced

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pretrial suspension for second or third offenses. If the evidence necessary to prove a prior offense is lacking, the suspension period may be reduced to the seven-day mandatory suspension for a second offense and a 60-day suspension for a third offense.

C. Rescission of Suspension. A subsequent dismissal or acquittal of all the charges under section 18.2-36.1, 18.2-51.4, 18.2-266, or 18.2-268.3, or any similar local ordinances, or section 46.2-341.24 or 46.2-341.26:3 for the same offense for which a person's driver's license or privilege to operate a motor vehicle was suspended results in the immediate rescission of the suspension. ²⁰⁵ After dismissal, the clerk of the court must (i) return the suspended license, if any, to the person unless the license has been otherwise suspended or revoked; (ii) deliver to the driver a notice that the suspension under section 46.2-391.2 has been rescinded; and (iii) forward a copy of that notice to the DMV.

8.702 Required Revocations. The DMV is directed to revoke the license of any driver who is convicted of any of the offenses designated under section 46.2-389(A). For most of these offenses, the revocation period is one year, but if the driver is suspended because of a DUI offense, the successful completion of an alcohol safety action program must also be certified before reinstatement can occur if this was required by the sentencing court. ²⁰⁶ Courts may waive the VASAP requirement for good cause shown but such waivers are rare. It is only when the court's order shows that it has waived the requirement that the certification of completion is not required.

The statute increases the revocation period for a driver who has been convicted of voluntary or involuntary manslaughter resulting from driving a motor vehicle or violation of section 18.2-36.1 or section 18.2-51.4. In those cases, the revocation procedure in section 46.2-391(B) controls and the suspension is indefinite. ²⁰⁷

8.703 Suspension for Failure to Pay Costs and Fines. Section 46.2-395 of the Virginia code allowing for the suspension of driving privileges for failure to pay court fines and costs was repealed in 2020. ²⁰⁸ The

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Commissioner of the DMV must reinstate the driving privileges suspended prior to July 1, 2019, for failure to pay court fines and costs without imposing any fees relating to reinstating the person's privilege to drive. ²⁰⁹

8.704 Failure to Pay Motor Vehicle-Related Judgment. ²¹⁰ A driver's license may also be suspended for failure to satisfy a judgment that is based on a motor vehicle accident within 30 days of entry of the judgment against that person or of a failure to pay on an installment plan to satisfy the judgment. On the request of the judgment creditor, the clerk's office must send a copy of the court's order or an abstract of judgment to the DMV to begin the suspension process. The driver can, within 30 days of the notice of suspension, request the reinstatement of any payment plan if the arrearage owed is brought up to date. Conversely, a driver who is suspended for this failure may also be reinstated if the judgment creditor gives consent in writing in whatever form the DMV requires.

The license suspensions issued pursuant to section 46.2-417 may be limited to 10 years if the civil judgment was obtained in general district court and 20 years if the civil judgment was obtained in circuit court. ²¹¹ However, it is possible for judgment creditors to extend these time limits. ²¹²

8.705 Administrative Suspension for Serious Offenses.

A. The Suspension. Section 46.2-391(A) of the Virginia Code provides for a three-year administrative suspension for any driver who is convicted of a violation of second-offense DUI, whether under section 18.2-266 for noncommercial drivers or 46.2-341.24(A) for commercial drivers. The subsection also applies to a driver convicted twice or more within a 10-year period of driving after suspension for DUI. Section 46.2-391(B) provides that drivers convicted of DUI-related manslaughter, DUI-related serious bodily injury, a felony violation of section 18.2-266, or three or more designated offenses within a 10-year...