SEARCH SITE
VIRGINIA LAW PORTAL
- Code of Virginia
- Virginia Administrative Code
- Constitution of Virginia
- Charters
- Authorities
- Compacts
- Uncodified Acts
- RIS Users (account required)
SEARCHABLE DATABASES
- Bills & Resolutions
session legislation - Bill Summaries
session summaries - Reports to the General Assembly
House and Senate documents - Legislative Liaisons
State agency contacts
ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2004 SESSION
040728232Be it enacted by the General Assembly of Virginia:
1. That § 46.2-358 of the Code of Virginia is amended and reenacted, and that the Code of Virginia is amended by adding in Article 9 of Chapter 3 of Subtitle II of Title 46.2 sections numbered 46.2-350.1, 46.2-350.2, 46.2-350.3, 46.2-350.4, 46.2-350.5, 46.2-350.6, and 46.2-350.7 as follows:
§ 46.2-350.1. Habitual offender defined; petition of certain persons for restoration of privilege of operating motor vehicle.
An habitual offender shall be any resident or nonresident person whose record, as maintained in the office of the Department, shows that he has been convicted of an accumulated three or more convictions, or of findings of not innocent in the case of a juvenile, or of findings of liability (hereinafter referred to as convictions) in the case of refusal to submit to a blood alcohol test, singularly or in combination, of the following separate offenses arising out of separate acts:
a. Driving or operating a motor vehicle while under the influence of intoxicants or drugs in violation of § 18.2-266 or subsection A of § 46.2-341.24;
b. Driving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked in violation of §§ 18.2-272; or
c. Refusal to submit to a blood alcohol test under § 18.2-268.3.
These offenses shall be deemed to include offenses under any valid parallel county, city, or town ordinance and any federal law, any law of another state or any valid county, city, or town ordinance of another state substantially conforming to the aforesaid state statutory provisions.
Multiple offenses committed within a six-hour period shall, on the first such occasion, be treated for the purposes of this article as one offense provided the person charged has no record of prior offenses chargeable under this article.
§ 46.2-350.2. Intervention required for certain offenders; fee; penalty; notice.
A. Upon receiving notification of any conviction that will result in the offender's being subject to determination as an habitual offender if convicted of one additional offense, the Commissioner shall notify the person that he shall report to a Virginia Alcohol Safety Action Program within 60 days of the date of such notice for intervention. Intervention shall be in accordance with § 18.2-271.1. The program shall provide the Commissioner with information of compliance.
B. An interview shall be conducted by a representative of a Virginia Alcohol Safety Action Program. The representative shall review with the person attending the interview the habitual offender laws and explain the consequences of future offenses and may refer the person to any driver improvement clinic. A fee of $30 shall be paid to the Virginia Alcohol Safety Action Program for attendance at a driver intervention interview. All fees collected by a Virginia Alcohol Safety Action Program shall be used to meet its expenses.
C. The Commissioner shall suspend the driving privilege of any person who fails to complete and pay the required fee for an intervention interview within the 60-day period. The suspension shall continue until such time as the person has completed and paid for the intervention interview.
D. Notice to report for intervention shall be sent by the Department by certified mail, return receipt requested, to the driver at the last known address supplied by the driver and on file with the Department.
E. Failure of the offender to attend as required or failure of the Department to notify the offender upon the second qualifying offense shall not prohibit determination of the person as an habitual offender upon receipt of the third qualifying offense.
§ 46.2-350.3. Summons to show cause to be issued upon conviction of third qualifying offense.
A. Immediately following disposition of any case involving any offense that qualifies as one that might be used for determination as an habitual offender as set forth in § 46.2-350.1, the court shall review the defendant's Department of Motor Vehicles transcript or abstract of convictions if available. Upon a finding that the person may be within the definition of an habitual offender as set forth in § 46.2-350.1, the court shall forthwith order the issuance of a summons that directs the defendant to appear and show cause why he should not be declared an habitual offender as provided in § 46.2-350.4. The show cause proceeding shall be held not less than 120 days after the date of the summons. The summons shall be immediately served upon the defendant. Such service shall be deemed adequate notice of the show cause proceeding, and no other notice shall be required.
B. Notice of the summons shall be transmitted to the Commissioner, along with the abstract of conviction, if any, and the court shall order the Commissioner to certify the person's transcript or abstract of convictions, substantially in the manner provided for in § 46.2-215, for use in the show cause hearing. One copy of such certified transcript or abstract shall be sent to the attorney for the Commonwealth in the jurisdiction of the court issuing the summons and one copy to the court. The Commissioner shall also mail, by first class mail, one copy to the person not less than 30 days prior to the date set in the court order for the show cause proceeding.
C. If the conviction of the third qualifying offense occurs in the general district court and is appealed by the person to the circuit court, the pending show cause proceeding in the general district court shall be stayed until the tenth day following the conviction. If the appeal is not withdrawn within the 10-day period, the show cause proceeding shall be dismissed by the general district court. Upon entry of a final order of conviction of a third qualifying offense by a circuit court, the circuit court shall proceed as otherwise provided in this section.
If the conviction of the third qualifying offense occurs in a circuit court and is appealed by the person, the pending show cause proceeding in the circuit court shall be stayed until such appeal is concluded. Should the person prevail on appeal, the show cause proceeding in the circuit court shall be dismissed, and the clerk of that court shall file with the Department an order of dismissal.
D. The Commissioner shall cause the Department's records to reflect the show cause proceeding and the disposition thereof.
§ 46.2-350.4. Commissioner to determine when person qualifies as habitual offender; when court may refuse to satisfy the Commissioner's determination under § 46.2-350.7; transcript or abstract as evidence.
A. Except when a show cause proceeding pursuant to § 46.2-350.3 followed the person's latest qualifying offense, the Commissioner shall determine, from the Department's records, whether a person named therein qualifies as an habitual offender, as defined in § 46.2-350.1. Upon such determination, the Commissioner shall immediately cause the Department's records to indicate that the person has been determined to be an habitual offender and shall revoke the person's driver's license for the period of time specified in § 46.2-356. The Commissioner shall immediately notify the person of the revocation and of his right to file a petition and request a hearing as provided in subsection B. Such notice shall be mailed by certified mail, return receipt requested, delivered to addressee only, to the address for the person contained in the Department's records. The revocation shall become effective 30 days from the date on which the notice was mailed.
After determination of any person as an habitual offender, the Department shall not thereafter issue a new or duplicate driver's license to any such person until the Department has received (i) a copy of the court order reversing the determination of the Commissioner, (ii) an order of license restoration as otherwise provided in this article, or (iii) a certification from the attorney for the Commonwealth that there is a valid reason not to make a determination that the person is an habitual offender. Any license issued in contravention of this provision shall be invalid.
B. At any time after receipt of the revocation notice, as provided for in subsection A, or after otherwise learning of the revocation, a person who has been determined to be an habitual offender may file, with the circuit court of the county or city in which he resides, or with the Circuit Court of the City of Richmond if the person is not a resident of the Commonwealth, a petition for a hearing and determination by the court that the person is not an habitual offender. Jurisdiction shall also lie in a circuit court to which venue may be changed.
The clerk of the court in which the petition is filed shall forward a copy of the petition to the Commissioner. Upon receiving the petition, the Commissioner shall suspend the revocation of the person's driver's license and, unless otherwise prohibited, his privilege to drive shall be restored pending a final determination by the court in accordance with § 46.2-350.7.
The court may refuse to enter an order affirming the Commissioner's determination, as provided in § 46.2-350.7 if the determination was made more than five years after the date of the most recent of the convictions that bring the person within the definition of habitual offender and the person would be otherwise eligible for restoration of his privilege under § 46.2-360.
The transcript or abstract of convictions that bring the person within the definition of an habitual offender may be admitted as evidence as provided in § 46.2-215 and shall be prima facie evidence that the person named therein was duly convicted, or held not innocent in the case of a juvenile, by the court wherein the conviction or holding was made, of each offense shown by the transcript or abstract. If the person denies any of the facts as stated therein, he shall have the burden of proving that the fact is untrue.
§ 46.2-350.5. Commissioner to certify copy of conviction record; attorney for the Commonwealth or Attorney General to represent Commissioner.
Upon receipt of the copy of the petition filed pursuant to § 46.2-350.4, the Commissioner shall certify the transcript or abstract, substantially in the manner provided for in § 46.2-215, to the petitioner or his attorney of record, to the court in which the petition was filed and to the attorney for the Commonwealth. The attorney for the Commonwealth, on receiving the transcript or abstract from the Commissioner, shall represent the Commissioner at the hearing on the petition. In the event the accused is an inmate of a state or local correctional facility, jurisdiction for the proceedings shall be in the locality wherein the accused is confined.
Venue of any case may be changed upon motion of either party.
§ 46.2-350.6. Hearing by court; scope of hearing; procedure where conviction denied.
At the conclusion of the show cause proceeding pursuant to § 46.2-350.3 or the hearing on the petition filed pursuant to § 46.2-350.5, the court shall determine whether the person is the same person named in the record and whether the person was convicted of each offense shown by the transcript or abstract.
If the person denies he was convicted or held not innocent of any offense necessary for the determination that he is an habitual offender, and if the court cannot, on the evidence available to it, make a determination, the court may certify the decision of the issue to the court in which the conviction or holding of not innocent was made. The court to which the certification is made shall forthwith conduct a hearing to determine the issue and send a certified copy of its final order determining the issue to the court that certified the decision of the issue and to the Department.
§ 46.2-350.7. Determination of court.
If, pursuant to the show cause proceeding or the hearing as provided for in § 46.2-350.3 or § 46.2-350.6, the court finds that the person (i) is not the same person named in the transcript or abstract or (ii) is not an habitual offender under this article, the court shall enter an order finding that the person is not an habitual offender and, unless otherwise prohibited, restoring his privilege to drive. If the court finds that the person is the same person named in the transcript or abstract and that the person is an habitual offender, the court shall enter an order (i) revoking the person's license if the proceeding is pursuant to § 46.2-350.3 or (ii) affirming the determination of the Commissioner and the revocation of the person's license if the proceeding is pursuant to § 46.2-350.4 and directing the person not to operate a motor vehicle on the highways in the Commonwealth and to surrender to the court all licenses or permits to drive a motor vehicle on the highways in the Commonwealth for disposal in the manner provided in § 46.2-398.
The clerk of the court shall file with the Department a copy of any order entered, which shall become a part of the permanent records of the Department. Unless it appears from the record of the case that the person was present at the hearing in which the court found him to be an habitual offender, the clerk shall also mail a copy of the order to the person at his last known address appearing in the records of the case. Mailing, by first class mail, shall be deemed adequate notice of the order of the court, and no other notice shall be required.
§ 46.2-358. Restoration of privilege of driving motor vehicle; when petition may be brought; terms and conditions.
A. In any case where a person was declared an habitual offender prior to July 1, 1999, and the provisions of § 46.2-360 or § 46.2-361 do not apply, five years from the date of any final order of a court entered under this article, or if no such order was entered then the notice of the determination by the Commissioner finding a person to be an habitual offender and revoking his privilege to drive a motor vehicle in the Commonwealth, the person may petition the court in which he was found to be an habitual offender, or any court of record in Virginia having criminal jurisdiction in the political subdivision in which he then resides, for restoration of his privilege to drive a motor vehicle in the Commonwealth. On such petition, and for good cause shown, the court may, upon a finding that such person does not constitute a threat to the safety and welfare of himself or others with regard to the driving of a motor vehicle, (i) restore to the person the privilege to drive a motor vehicle in the Commonwealth on whatever conditions the court may prescribe or (ii) order that the person be issued a restricted license to drive a motor vehicle in the Commonwealth for any of the purposes set forth in and in accordance with the procedures of subsection E of § 18.2-271.1, subject to other provisions of law relating to the issuance of driver's licenses.
B. Any person declared an habitual offender pursuant to § 18.2-350.1 may petition to have his privilege to drive restored pursuant to the provisions of subsection C of § 46.2-391.