ASAP – or, “VASAP,” – stands for “Virginia Alcohol Safety Action Program. “ It is both hated and revered…depending on who you are asking. There is a complex relationship between the court system, ASAP, and DMV.
Those who revere ASAP and VASAP point to the positive goals and objectives: read them here.
If convicted of DWI in Virginia, one of the many consequences is the successful completion of an alcohol safety action program (ASAP). In the vast majority of DWI convictions, successful completion of the Virginia Alcohol Safety Action Program is required in order to avoid serving suspended jail time.
Active Time: must be served regardless completion of any court-ordered program, good behavior or payment of court costs and fines.
Suspended Time: does not result in time in jail unless the court’s orders are violated.
What happens if you or your loved one has been convicted of DWI and has received a suspended jail sentence contingent upon successful completion of VASAP? Does the court even have to mandate ASAP completion, or is it up to the judge? Will a single missed appointment result in a serious consequence (such as serving active jail time), or is it not a big deal? This page is meant to educate, inform, and may include opinions of the author. This page does not offer legal advice, but does offer a look at the ASAP concept.
For purposes of this page, ASAP and VASAP is used interchangeably unless otherwise noted.
Brief Overview and History of the Virginia Alcohol Safety Action Program
What is ASAP and VASAP?
The mission and inception goes back to the 1970’s. The original purpose relates to society’s drunk-driving issues decades ago. Today, VASAP is most often implicated in two types of cases: DWI and Possession of Marijuana. This particular page addresses the role VASAP plays in a common type of probation violation hearing, often referred to as an “ASAP Noncompliance hearing.” But note: VASAP offers numerous programs; see the official website for more information.
Timeline and ASAP History
1972: According to a recent publication (an executive summary), The Virginia Alcohol Safety Action Program started in Fairfax County, Virginia, back in 1972. At that time, it was one of just 35 “Alcohol Safety Action Projects,” funded by the federal government (National Highway Traffic Safety Administration (NHTSA).
1975: In the 1970’s and early 80’s, the public eye and the media turned their attention to an alarming number of traffic fatalities due to intoxicated drivers. As a result, the Virginia General Assembly extended the program across the entire state.
1986: a commission was formed (the Commission on Virginia Alcohol Safety Action Program, also called the Commission on VASAP). At this time, the ASAP program became standardized across the Commonwealth.
Present-day: there are a total of 24 ASAP programs in the Commonwealth of Virginia.
Why is ASAP both hated and revered?
On one hand, the stated mission is:
“To improve highway safety by decreasing the incidence of driving under the influence of alcohol and other drugs, leading to the reduction of alcohol and drug-related fatalities and crashes.”
But, one of the published “objectives” is controversial:
“[To] raise the conviction rate for offenders and the number of appropriate referrals to Alcohol Safety Action Programs”
While it is in everyone’s best interests to keep repeat offenders off the Commonwealth’s highways, it could be argued that the General Assembly – by way of VASAP legislation – deprives fact finders of discretion…leading the courts to over-punish those charged and convicted of driving with a relatively modest BAC around 0.08.
Related: In today’s modern justice system, plea bargains are becoming increasingly controversial. (see Debate.org for more insight…currently, about 60% of respondents believe plea bargaining undermines the justice system. It is hard to say whether or not courts would impose more active jail time if ASAP ceased to exist, hypothetically.
Before proceeding, readers may find it helpful to review the dui dwi penalties in Virginia for Driving While Intoxicated (DWI).
While this page does not recite the Virginia DUI / DWI penalties in full (see the prior link, or our main Virginia DWI law page if you are looking for a starting point in your search for information and a trusted Northern Virginia, Fairfax DUI lawyer. A first offense DWI conviction in Virginia with a BAC less than 0.15 is punishable as follows:
- Class 1 misdemeanor
- Mandatory fine of at least $250, but often more.
- Suspended jail time* (customary jail sentence depends on jurisdiction.
- Suspended license for 12 months
- Ignition interlock device installed on any car operated by the individual.
- ASAP classes and probation (oversight), including conditions such as sobriety
One of the most significant (yet most overlooked or least understood) may be the ASAP (VASAP) requirements. Upon a first impression to the accused, the prospect of having to complete an alcohol-related program seems rather slight compared to the other inconvenient and harsh consequences; yet many people find themselves in jail because they fail to complete the program to the satisfaction of the case manager and/or court. See the ASAP FAQ below for more information. (create separate page)
Where do I have to take the ASAP classes?
VASAP is completed within the county or city (technically, the “judicial district) where the Commonwealth prosecuted the DWI charge. However, it is possible to obtain court permission to transfer the location of the ASAP program in certain cases. Talk to a Virginia DWI lawyer about the specifics of your case if you are under supervision but hope to move out-of-state.
Does the court have control over requirements after assessment?
“Upon motion of a person convicted of any such offense following an assessment of the person conducted by an alcohol safety action program, the court, for good cause, may decline to order participation in such a program if the assessment by the alcohol safety action program indicates that intervention is not appropriate for such person”
Virginia law establishes the standards and criteria of ASAP programs, which are traced to the Commission on the Virginia Alcohol Safety Action Program (VASAP) (see 18.2-271.2)
May I enroll in ASAP in Virginia after I have been charged with DWI or DUI, but before trial?
Yes. The law provides that any person charged may enter a program prior to trial and may pre-qualify for purposes of ignition interlock installation. With that said, it is not possible to actually get the interlock installed prior a judge ordering installation as well as a restricted license.
How much does ASAP cost?
$250 – $300 (check here, subsection B, for the most up-to-date information). This does not even come close to approaching an accurate reflection of the fees one may actually end up paying. For example, there are ignition interlock installation fees, insurance for the device, and in some cases, additional classes and/or counseling sessions (not free).
When ASAP believes there is good cause for the court to revoke a sentence due to a violation, there will be a court hearing to determine if a violation occurred (note: it is not a “beyond a reasonable doubt standard” because it is not a criminal offense), and if so, what the appropriate measures should be given the particulars of the case.
What happens at the ASAP Non-compliance hearing?
The judge will ask the defendant whether or not he or she admits or denies the allegation. Depending on several factors – and after a local Northern Virginia criminal lawyer / DWI Attorney has assessed a case, the judge may dismiss the person as being in compliance, or may find the person in violation of the terms of probation. of the violation. A judge may impose the suspended jail time in full, in-part, or not at all.
The law (19.2-306) states the court may revoke suspended jail time FOR ANY CAUSE the court deems sufficient! It must, however, be within the “probation period” or other period if the court specifically sets a period of suspension. In some rare cases in which neither a probation period nor period of suspension set by the court exist, then the judge has the power to revoke the suspended jail time during the maximum of suspended time.
How can a lawyer help someone in an ASAP noncompliance case?
There are several facets: first, a Virginia DUI lawyer may ask the client questions in order to determine whether or not a violation really occurred. The DWI attorney may also check dates and times to ensure a case manager or other officer did not make an error (it happens). Each case is unique to the point that it would be impossible to list each feasible defense or mitigating factor (for example, there are a myriad of scientific defenses involving mechanical errors, human errors, and biological factors in certain types of noncompliance cases.
After analyzing a client’s defenses or mitigating factors, a Virginia DWI lawyer will explain to the client the realistic expectations, but no lawyer is permitted to make a promise or guarantee as to a result. The existence of a violation does not require analysis of factors such as the tendencies and personalities of various judges in a particular court system. On the other hand, if it is established that a violation has occurred, then there are jurisdiction-specific and locality-specific tendencies and trends which may heavily influence the consequences. Any busy Virginia DWI lawyer will agree: the same exact violation could result in drastically different outcomes from one county to the next in Virginia. Therefore, it is important any person facing an ASAP noncompliance hearing hire an attorney with adequate experience in the particular county or city court system.
If the judge finds a violation has occurred, a common consequence is some period of revocation of suspended jail time. The time one must serve in jail after found to be in violation of probation and/or ASAP terms depends, in-part, on the original suspended sentence imposed by the judge.
For purposes of illustration, consider this example: in the case of a first offense DWI conviction with a BAC level below 0.15, Fairfax County judges may sentence a defendant to 30 days in jail, but suspend the sentence in its’ entirety. Or, it may be much more (in Arlington County, a typical DWI 1st offense with a BAC of just 0.08 will result in 180 days of suspended time).
Will the judge send me to jail for my VASAP violation?
It depends on the nature and severity of the violation. For instance, one may face an ASAP non-compliance hearing for picking up a new alcohol related charge (even something relatively minor, such as public intoxication or drinking in public) and receive a stern warning, additional ASAP classes and counseling/therapy, and no active time to serve in jail* Compare that to a more severe violation, such as a second conviction for driving while intoxicated.
*this is merely a hypothetical and is not intended to provide a prediction or convey legal advice.
Just like the length of a suspended jail sentence differs from one jurisdiction/county to the next, so does the typical period of time imposed for ASAP violations.
Will my original lawyer be at my ASAP non-comp hearing?
If faced with an upcoming hearing for ASAP noncompliance, it is wise to seek counsel as soon as possible. Do not assume your original lawyer (the attorney who represented you at the DWI hearing) will be present. Almost every DWI lawyer in Virginia will require additional legal fees for representation at a non-compliance hearing. Generally speaking, however, the fee most lawyers charge for such representation is half, or less than half, of the fee for the underlying DWI case.
Can I appeal an ASAP violation?
Yes. Just like you had the right to appeal a DWI conviction within 10 days in General District Court, a non-compliance and probation violation finding may be appealed to Circuit Court.
How are ASAP Violations (Noncompliance) Initiated?
[http://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+24VAC35-30-150]According to 24VAC35-30-150. Reporting: There are several key players. Other than the obvious – the judge, prosecutor, defendant, and attorney – noncompliance cases involve communications, reports, and findings by service providers and case managers.
When a case manager deems someone on probation as “non-compliant,” then it should take no longer than five work-days to notify the court as well as the defendant/offender.
Violations Leading to ASAP Non Compliance:
- First appointment no-show.
- Conviction of an alcohol-related offense (but any subsequent DWI, misdemeanor, infraction, or felony conviction deemed pertinent, or, related to the probation status. Most Virginia judges impose a term of probation to require no further violations of the law.
- Drug or alcohol use detected by a service provider (e.g., showing up to a class while under the influence).
- Skipping or missing classes without valid reason and prior approval.
What if I have an emergency?
Yes. There are a few acceptable reasons one may be excused.
- death of a loved one (must be immediate family, but does include in-laws);
- medical excuse (requires a doctor’s note);
- an emergency, but only if approved by a case manager.
- Failure to pay fees when the individual has not been deemed indigent.
Part of successfully making it through a DWI conviction and ASAP includes avoiding ignition interlock violations.
If convicted of 2nd DWI within 10 years, the law requires the court to refrain from granting a restricted license unless it is conditioned on an ignition interlock device installed on each and every motor vehicle owned OR registered by that person. This includes vehicles with co-owners! (for definition of “motor vehicle” see the definition from Virginia Code 46.2-100 below)
Definition of Motor Vehicle:
“Motor vehicle” means every vehicle as defined in this section that is self-propelled or designed for self-propulsion except as otherwise provided in this title. Any structure designed, used, or maintained primarily to be loaded on or affixed to a motor vehicle to provide a mobile dwelling,sleeping place, office, or commercial space shall be considered a part of a motor vehicle. For the purposes of this title, any device herein defined as a bicycle, electric personal mobility device, electric power-assisted bicycle, or moped shall be deemed not to be a motor vehicle.
Can I drive a moped with a suspended or revoked license?
No. It is illegal. If your license is suspended or revoked for any of the following convictions, it is against the law.
- DUI / DWI conviction
- underage consumption of alcohol
- refusing a blood/breath test, or
- driving while suspended/revoked for a DUI-related offense.
How long do I have to keep the interlock on my car?
The interlock must be ordered for six months. Plus, this six month period does not start until the 3-year license revocation period runs. The exception: if the interlock was installed for six months before the 3 year period has expired, pursuant to a restricted license order.
I was convicted of DUI in another state.
Now I live in Virginia. What do I need to do to legally drive?
Section D of 18.2-271.1 states that if a person is convicted in another state of a “substantially similar” offense to Virginia’s DWI law (18.2-266), and is without the legal privilege/ability to drive in the Commonwealth, then he or she may submit a petition in general district court asking for probation and assignment to an ASAP program for purposes of ultimately obtaining a restricted operator’s license and restricted privileges. Just like persons convicted of DWI in Virginia, the court is required – by law – to only grant a restricted license if conditioned upon installation of an approved and certified ignition interlock for at least six months. Furthermore, the six month period must pass with no violations of the interlock terms and requirements.
If I qualify for a restricted license, where can I drive?
The court must approve, but by statute, the following are all possible:
- Place of employment
- Alcohol rehab or ASAP classes/program
- Travel during hours of employment but only if use and operation of a vehicle is required as part of employment
- School or continuing education
- Minor child’s day-care, school, and doctor
- Court ordered visitation locations
- Location(s) of screenings or education programs required by the court
- Court, if required as a party or subpoenaed as a witness
- Place of Worship
- Jail (example: a delayed turn-in)
- Ignition interlock installation facility
The restricted license must be kept in possession of the driver to whom it is issued. If stopped by a law enforcement official without the restricted license, it is highly likely a very serious criminal charge will follow (see our page covering 18.2-272: driving while revoked due to DWI).
Can the court grant a restricted license now?
Is there a waiting period?
This is a question best answered on a case-by-case basis. Talk to an attorney in your jurisdiction, including our Northern Virginia DUI and criminal lawyer if an answer is sought and you are unclear as to restricted operator’s license questions specific to your case. Below are a few examples of the nuances in this area:
- No restricted license may be issued by a court during the first four months of revocation following a conviction for a 2nd DWI within 10 years.
- Similarly, the period is extended to a full year if the DWI is a 2nd within 5 years.
- No restricted license is permitted following a 3rd DWI within 10 years.
- Furthermore, even a first conviction of refusal to submit to a blood alcohol evidential test after arrest results in 12 months without the ability to obtain a restricted license.
Revocation Proceedings: how are they initiated?
The statute requires notice sent by first-class mail to the last known address of the alleged offender. It must instruct the person to appear in court on the date specified. This date must be at least 10 days from the date it is mailed.
The “revocation of a suspended sentence lies in the discretion of the trial court and that ․ discretion is quite broad.” Peyton v. Commonwealth, 268 Va. 503, 508, 604 S.E.2d 17, 19 (2004). – See more at: http://caselaw.findlaw.com/va-court-of-appeals/1600994.html#sthash.DI2trhbL.dpuf
Given the fact that a DWI conviction costs about $10,000 in court costs, legal fees, fines, and program fees, it is not hard to understand why it is very difficult to accept additional fees, classes, and therapy sessions for miniscule and often arguably unrelated issues. Please keep in mind, it is not appropriate to blame VASAP employees. If you have a problem with VASAP, you should blame the General Assembly.
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