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2011 SESSION
11102483DBe it enacted by the General Assembly of Virginia:
1. That § 46.2-391.2 of the Code of Virginia is amended and reenacted as follows:
§ 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 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 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, 18.2-266, or 18.2-266.1, or any
similar 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 ordinance, the person's license shall be suspended
immediately 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. The period of suspension of the person's license or privilege to
drive shall be seven days, unless the
petition, summons or warrant issued charges the person with a second or
subsequent offense. If the person is charged with a second offense the
suspension shall be for 60 days. If not already expired,
the period of suspension shall expire on the day and time of trial of the
offense charged on the petition, summons or warrant, except that it shall not
so expire during the first seven 60 days of the suspension. If
the person is charged with a third second or subsequent offense,
the suspension shall be until the day and time of trial of the offense charged
on the petition, summons or warrant.
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 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, 18.2-266, or 18.2-266.1, or a similar ordinance or refused to submit to a breath test in violation of § 18.2-268.3 or a similar 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, or that portion of it that exceeds seven days if there was not probable cause to
charge a second offense or 60 days if there was not
probable cause to charge a third second or subsequent offense,
and the clerk of the court shall forthwith, or at the expiration of the reduced
suspension time, (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 or reduced,
and (iii) forward to the Commissioner a copy of the notice that the suspension
under § 46.2-391.2 has been rescinded or reduced. 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
When a person’s license
or privilege to operate a motor vehicle is suspended under subsection A is
convicted under § 18.2-36.1, 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar
ordinance during the 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, the court shall order that such
restricted permit shall not be issued to the
person before become effective until
the expiration of the first
seven days of the suspension imposed under subsection A.