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2003 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-266.1 and 46.2-391.2 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-266.1. Persons under age 21 driving after illegally consuming alcohol; penalty.
A. It shall be unlawful for any person under the age of twenty-one 21 to
operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol
concentration of 0.02 percent or more by weight by volume or 0.02 grams or more
per 210 liters of breath but less than 0.08 by weight by volume or less than
0.08 grams per 210 liters of breath as indicated by a chemical test
administered as provided in this article shall be in violation of this section.
B. A violation of this section shall be punishable by forfeiture of such person's license to operate a motor vehicle for a period of six months from the date of conviction and by a fine of not more than $500. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2. The penalties and license forfeiture provisions set forth in §§ 16.1-278.9, 18.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.
C. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.
§ 46.2-391.2. Administrative suspension of license or privilege to operate a motor vehicle.
A. If a breath test is taken pursuant to § 18.2-268.2 or any similar ordinance
of any county, city or town and (i) the results show a blood alcohol content of
0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters
of breath, or (ii) the results, for persons under 21 years of age, show a blood
alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or
more per 210 liters of breath or (iii) the person refuses to submit to the
breath test in violation of § 18.2-268.3 or any similar local ordinance, and
upon issuance of a petition or summons, or upon issuance of a warrant by the
magistrate, for a violation of §§ 18.2-51.4 or, § 18.2-266, or § 18.2-266.1, or
any substantially similar local ordinance, or upon the issuance of a warrant or
summons by the magistrate or by the arresting officer at a medical facility for
a violation of § 18.2-268.3, or any similar local ordinance, the person's
license shall be suspended immediately for seven days or in the case of (i) an
unlicensed person, (ii) a person whose license is otherwise suspended or
revoked, or (iii) a person whose driver's license is from a jurisdiction other
than the Commonwealth, such person's privilege to operate a motor vehicle in
the Commonwealth shall be suspended immediately for seven days.
A law-enforcement officer, acting on behalf of the Commonwealth, shall serve a notice of suspension personally on the arrested person. When notice is served, the arresting officer shall promptly take possession of any driver's license held by the person and issued by the Commonwealth and shall promptly deliver it to the magistrate. Any driver's license taken into possession under this section shall be forwarded promptly by the magistrate to the clerk of the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made together with any petition, summons or warrant, the results of the breath test, if any, and the report required by subsection B. A copy of the notice of suspension shall be forwarded forthwith to both (a) the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made and (b) the Commissioner. Transmission of this information may be made by electronic means.
The clerk shall promptly return the suspended license to the person at the expiration of the seven-day suspension. Whenever a suspended license is to be returned under this section or § 46.2-391.4, the person may elect to have the license returned in person at the clerk's office or by mail to the address on the person's license or to such other address as he may request.
B. Promptly after arrest and service of the notice of suspension, the arresting
officer shall forward to the magistrate a sworn report of the arrest that shall
include (i) information which adequately identifies the person arrested and
(ii) a statement setting forth the arresting officer's grounds for belief that
the person violated §§ 18.2-51.4 or, § 18.2-266, or § 18.2-266.1, or a similar
local ordinance or refused to submit to a breath test in violation of §
18.2-268.3 or a similar local ordinance. The report required by this subsection
shall be submitted on forms supplied by the Supreme Court.
C. Any person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period of the suspension, request the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made to review that suspension. The court shall review the suspension within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition, the court shall rescind the suspension, and the clerk of the court shall forthwith (i) return the suspended license, if any, to the person unless the license has been otherwise suspended or revoked, (ii) deliver to the person a notice that the suspension under § 46.2-391.2 has been rescinded, and (iii) forward to the Commissioner a copy of the notice that the suspension under § 46.2-391.2 has been rescinded. Otherwise, the court shall affirm the suspension. If the person requesting the review fails to appear without just cause, his right to review shall be waived.
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.
D. If a person whose license or privilege to operate a motor vehicle is
suspended under subsection A is convicted under §§ 18.2-51.4 or, § 18.2-266, or
§ 18.2-266.1, or any similar local ordinance during the seven-day suspension
imposed by subsection A, and if the court decides to issue the person a restricted permit
under subsection E of § 18.2-271.1, such restricted permit shall not be issued
to the person before the expiration of the seven-day suspension imposed under
subsection A.