Va Code 46.2-391.2. Administrative suspension – Controversy and error

Virginia DWI and DUI Administrative License Suspension Rules and Controversies

fairfax dui lawyer and defense attorneysEvery so often, errors are made by government and local authorities when they apply certain law sections to those accused. Administrative license suspension has recently been one such issue to strike our Fairfax and Northern Virginia criminal law firm and DUI defense attorney as worthy of publication. Lately, an uptick in instances in which authorities improperly administer code sections became apparent. Although it likely is not intentional, these mistakes affect lives. This article is about education, as well as errors authorities may make when it comes to imposing the proper administrative license suspension following a DWI/DUI arrest in Virginia. There is a significant difference when it  comes to license suspension time for a first vs. second offense. Our Fairfax DUI attorney has noticed that some defendants have been suspended for 60 days rather than 7 days, because a lack of diligence on the part of law enforcement. The easiest example is as follows:

Hypothetical person (“Joe”) is charged with driving while intoxicated. His charge is dismissed. Two years later, he is arrested for driving while intoxicated again. Although he has no prior conviction, sloppy work, or careless attention to detail could result in Joe being served with an administrative suspension for 60  days, as opposed to 7 days (because his second arrest should be considered a first offense, because he was not convicted of anything the first time he was arrested).

Virginia Code requires automatic license suspension for  a period of 7 days after an arrest for driving while intoxicated (DWI – note: DWI and DUI are interchangeable synonyms for purposes of Virginia law). If the accused already has been convicted of driving while intoxicated (or convicted of a prior refusal — to consent to a breath test — following a valid arrest), the individual will be statutorily suspended for 60 days or more, depending upon prior record. Here is the problem: what if an individual is arrested for driving while intoxicated, found either not guilty or perhaps, the charge has been amended to reckless driving? Law enforcement and/or the judicial branch should not treat a prior arrest as a “first offense,” but this has been something notably observed by our Fairfax criminal attorney on more than one occasion, very recently.

Human error is a fact of life, but when the same error shows up multiple times in a short period of time, it is incumbent upon Virginia defense attorneys to make this information / experiences known.

Fairfax DUI Lawyer Explains: Administrative license suspension law in Virginia

Administrative license suspension when charged with DWI / DUI in Virginia

When a person is arrested for driving while intoxicated (DWI/DUI) in Virginia, the law automatically imposes an “administrative license suspension” prior to trial. Reference statute. Recently, our Fairfax criminal law attorney has noticed more than one instance in which an administrative suspension period was incorrectly imposed (for far longer than required by law). For example,

Imagine being suspended for 53 more days than required by law…and the Uber and public transportation fees that would go along with it. Not to mention, these extra expenses come at a time when the accused is already likely under financial strain or strict budgeting, in order to prepare legally, to hire a local Fairfax criminal attorney for representation.

Read more about the consequences of a DWI conviction here. Read about probable cause to arrest, here. And more, here. It is important for all Virginia criminal attorneys to be vigilant when trends are spotted – and that is what this article is about.

 If arrested for DUI, will my license be suspended?

After arrest but prior to trial, a DWI arrest will result in a temporary suspension. Even if the driver is found “not guilty,” or if the case is dismissed, under Virginia law, he or she will face license suspension for at least 7 days – but sometimes, far longer. This article is intended to educate as well as inform. As a Fairfax criminal lawyer and DUI defense attorney, there have been cases in which a person’s license is suspended prior to trial, for a time period which greatly exceeds the proper time frame.

The Basic Administrative License Suspension Law in Virginia

For a first DWI arrest, the administrative suspension period is 7 days. A second offense will result in a 60 day suspension. A third or subsequent results in an indefinite automatic administrative suspension – until the day of trial.

See the statute below:

  • 46.2-391.2. Administrative suspension of license or privilege to operate a motor vehicle.

Read the statute here.

This laws is meant to provide the Commonwealth with a civil sanction over the accused. (Ingram v. Commonwealth, 29 Va. App. 759, (1999). Virginia case law has expounded upon jurisdiction, placing it within the General District Court (as opposed to Circuit Court). (Nicely v. Commonwealth, 23, Va. 759 (1996).

Grounds for Review of Suspension

This statute states that an accused driver may petition the court to review whether or not the suspension is proper. It states that a probable cause challenge is grounds to challenge the suspension – it does not state that other grounds do not exist. For example, clerk or officer error. (Easter v. Commonwealth, 31 Va. App. 714 (2000).

The law in Layman’s terms

  1. If a breath test following DUI arrest results in a blood alcohol content (BAC) level of .08 or higher (percent by weight by volume per 210 liters of breath) (or if the accused refuses, or is under 21 years of age and is found to have a reading of .02), then the driver’s license is suspended automatically for seven days immediately. If the person is unlicensed; already suspended or revoked; or, possesses a license from another jurisdiction/state, then the suspension takes place immediately. The suspension period lasts 7 days for a first offense, or 60 days if it is a second offense. If the defendant goes to trial and the license suspension period has not already expired, it will expire on the day of trial…with the caveat that the first seven days is required. If the charge is a third or subsequent, then the suspension period will last until the day/time of trial,

What must the officer do?

The officer must serve a “notice of suspension” on the individual arrested. The officer will then take the license of the accused and hand it over to the magistrate. From there, the license is forwarded to the clerk of the general district court where the case is pending.

When and How Do I get My License back after administrative suspension?

After the suspension period has lapsed, law requires the clerk to return the license. The accused can either pick up the license at the clerk’s office, or, request the clerk mail it to the address on the license, or any address he or she requests.

What should I do if I believe the court or law enforcement officer made a mistake?

A “mistake” – when it come to administrative license suspension – may arise in different ways. First, one may be arrested without probable cause. In such a case, the Fairfax or Northern Virginia criminal defense DUI attorney may file a motion pursuant to this statute, and petition the court to attempt to obtain the client’s license prior to the trial date. The law states that any person who has been administratively suspended may, during the period of suspension, request a review by the general district court before the case which it is pending. The statute places a strict time constraint upon the court – in fact, it requires the court to review the suspension within “the same time period as the court hears an appeal from an order denying bail or fixing bail or terms of recognizance.” This hearing is unique, in that the burden is only a “preponderance of the evidence,” rather than beyond a reasonable doubt (the standard required to find someone guilty of a criminal law.)” if the court finds by a preponderance (that probable cause did not exist), or that the magistrate erred in suspending the license, then the court is required to rescind the suspension.

The court’s findings are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.

For a second DWI arrest within 5 years, or, for a subsequent “refusal” charge, the administrative license suspension period is 60 days.

As a Fairfax criminal lawyer, and Fairfax county criminal DUI attorney, it is important to make sure the police, Department of Motor Vehicles (DMV), and court clerks have processed the client and his/her record properly.

Contact us for a free consultation.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


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