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ACROSS SESSIONS
- Subject Index: Since 1995
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Developed and maintained by the Division of Legislative Automated Systems.
1995 SESSION
LD0221378Be it enacted by the General Assembly of Virginia:
1. That §§ 46.2-351.1, 46.2-352 through 46.2-358, 46.2-360 and 46.2-361 of the Code of Virginia are amended and reenacted as follows:
§ 46.2-351.1. Intervention required for certain offenders; fee; penalty; notice.
A. Upon receiving notification of any alcohol-related or drug-related
conviction entered on or after January 1, 1994, which will result in the
offender's being subject to adjudication determination
as an habitual offender if convicted of one additional offense, the
Commissioner shall notify the person that he shall report to an alcohol
safety action program within sixty 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. Upon receiving notification of any conviction which is not alcohol or
drug related entered on or after January 1, 1994, which will result in the
offender's being subject to adjudicationdetermination
as an habitual offender if convicted of one additional offense, the
Commissioner shall notify the person that he shall attend a driver
intervention interview within sixty days of the date of the notice. The
interview shall be conducted by a representative of the Department, to be
designated by the Commissioner. 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 program approved by the Commissioner. A fee of thirty dollars
shall be paid for attendance at a driver intervention interview.
C. The Commissioner shall suspend the driving privilege of any person who fails to report for intervention within the sixty-day period. The suspension shall continue until such time as the person reports.
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 be used to prohibit adjudicationdetermination as an
habitual offender upon receipt of the third qualifying offense.
§ 46.2-352. Commissioner to determine when person qualifies as habitual offender; when court may refuse to satisfy the Commissioner's determination under § 46.2-355; transcript or abstract as evidence.
A. The Commissioner shall certifydetermine,
from the Department's records, substantially in the manner provided for
in § 46.2-215, three transcripts or abstracts of those conviction documents
which bring thethat a person named therein within
qualifies under the definition of an habitual offender, as
defined in § 46.2-351, to the attorney for the Commonwealth of the
political subdivision in which the person resides according to the records of
the Department or the attorney for the Commonwealth of the City of Richmond
if the person is not a resident of the Commonwealth. The
Commissioner shall revoke the person's driver's license for the period of
time defined in § 46.2-356. The Commissioner shall immediately notify the
person of the revocation by certified mail, return receipt requested, and in
the same letter shall notify the person of his right to a hearing on the
revocation as provided in subsection B. After
certificationdetermination 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 (i) a show cause proceeding
has been held under § 46.2-354 and a notice of
dismissalreversal of the revocation has been received by the
Department from the clerk of court as provided in § 46.2-355 or
(ii) an order of license restoration has been received by the Department as
otherwise provided in this article. Any license issued in contravention of
this provision shall be invalid.
In any proceeding under § 46.2-354, theB. If the person
denies that he is an habitual offender, he may file, with the criminal court
of the city, county, or town in which the person 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 also is in the court of
record 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.
The court may refuse to enter any order as provided in § 46.2-355 if
such certification the determination by the
Commissioner was made more than five years after the date of the most
recent of the convictions which 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 may be admitted
as evidence as provided in § 46.2-215. The transcript or abstract as
provided for in § 46.2-353 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.
§ 46.2-353. 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 received by the clerk of the
court pursuant to § 46.2-352, the Commissioner shall certify the transcript
or abstract of any person whose record brings him within the definition of an
habitual offender, substantially in the manner provided for in § 46.2-215 to
the court and to the attorney for the Commonwealth of the city, county, or
town in which the person resides or to the Attorney General if the person is
not a resident of the Commonwealth. The attorney for the Commonwealth,
on receiving the transcripts or abstracts from the Commissioner provided
for in § 46.2-352, shall forthwith file information
represent the Commissioner against the person named therein
in the court of record having jurisdiction of criminal offenses in the
county, city, or town in which Department of Motor Vehicle records indicate
to be the person's latest address. Jurisdiction also is in the court of
record to which venue may be changed. In the event the person is a
nonresident of the Commonwealth, the attorney for the Commonwealth of the
City of Richmond shall file information against the accused person in the
Circuit Court of the City of Richmond. The clerk of the Circuit Court
of the City of Richmond shall be allowed a fee of five dollars for each
information petition filed
againstby a nonresident accused
designated as an habitual offender. The fee shall be paid out of the
state treasury from the appropriation for criminal charges on the certificate
of the court as provided in § 19.2-334 and shall be taxed against the
defendant person challenging the determination of the
Commissioner as a part of the costs of the proceeding, if the
defendant person is found to be an habitual offender.
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.
§ 46.2-354. Hearing by court; scope of hearing; procedure where conviction denied.
The court in which an information is filed as provided for in §
46.2-353, shall enter an order, which incorporates the transcript or abstract
provided for in § 46.2-352 and is directed to the person named therein, to
show cause why he should not be barred from driving a motor vehicle on the
highways in the Commonwealth. A copy of the show cause order and the
transcript or abstract shall be served on the person named therein in the
manner prescribed by § 8.01-296 (1). The person may be served wherever he may
be found in the Commonwealth. Service thereof on any nonresident of the
Commonwealth may be made on the Secretary of the Commonwealth, who for this
purpose shall be the statutory agent of the person. Service shall be made by
leaving a copy of the order and the transcript or abstract in the hands of
the Secretary or in his office in the City of Richmond, and this service
shall be sufficient on the nonresident, provided that notice of the service
and a copy of the order and the transcript or abstract are forthwith sent by
certified or registered mail, with delivery receipt requested, by the
Secretary to the person at his last known address, and an affidavit of
compliance herewith by the Secretary or someone designated by him for that
purpose and having knowledge of the compliance, shall forthwith be filed with
the papers. For this service, a fee of seven dollars, which shall be paid
into the general fund of the Commonwealth, shall be taxed against the
defendant as a part of the cost of the proceeding, if he is found to be an
habitual offender. subsection B of § 46.2-352, shall provide a
hearing for the person and shall make the final determination of whether the
person is not an habitual offender. The scope of the hearing shall be
limited to whether or not the person is the same person named in the record
and whether or not 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 a holding 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 in which the information was filed.
§ 46.2-355. (Effective January 1, 1994) Determination of court.
If, pursuant to the show cause proceeding hearing as
provided for in § 46.2-354, the court finds that the person is not the same
person named in the transcript or abstract, or that he is not an habitual
offender under this article, the proceeding determination of
the Commissioner shall be dismissed, and the clerk of the court shall
file with the Department a notice of the dismissal. 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 so find and by
appropriate order affirm the determination of the Commissioner and
direct 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 the order 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 cause to be mailed to the person at his
last known address appearing in the records of the case a copy of the
habitual offender order. Such mailing, by first class mail, shall be deemed
adequate notice of affirmation of the habitual offender order, and
no other notice shall be required to make the order
Commissioner's determination effective if there was
appropriate service of process for the show cause proceeding as provided in §
46.2-354. The date upon which the person received the habitual
offender determination letter from the Commissioner shall remain the date
upon which the person's privilege to drive was revoked.
§ 46.2-356. Period during which habitual offender not to be licensed to drive motor vehicle.
No license to drive motor vehicles in Virginia shall be issued to an habitual
offender, (i) for a period of ten years from the date of the order of
the courtnotification of the Commissioner to the person,
finding the person to be an habitual offender, and (ii) until the
privilege of the person to drive a motor vehicle in the Commonwealth has been
restored by an order of a court of record entered in a proceeding as provided
in this article.
§ 46.2-357. Operation of motor vehicle or self-propelled machinery or equipment by habitual offender prohibited; penalty; enforcement of section.
A. It shall be unlawful for any person to drive any motor vehicle or
self-propelled machinery or equipment on the highways of the Commonwealth
while the order of the court revocation of the person's
driving privilege by the Commissioner prohibiting such operation
remains in effect. However, an orderthe Commissioner's
revocation determination shall not prohibit the person from operating
any farm tractor on the highways when it is necessary to move the tractor
from one tract of land used for agricultural purposes to another tract of
land used for agricultural purposes, provided that the distance between the
said tracts of land is no more than five miles.
B. Any person found to be an habitual offender under this article, who is
thereafter convicted of driving a motor vehicle or self-propelled machinery
or equipment in the Commonwealth while the order
determination of the courtCommissioner
prohibiting such driving is in effect, shall be punished as follows:
1. If such driving does not, of itself, endanger the life, limb, or property of another, such person shall be guilty of a misdemeanor punishable by confinement in jail for no more than ninety days and a fine of not more than $2,500, either or both. However, ten days of any such confinement shall not be suspended except in cases designated in subdivision 2 (ii) of this section.
2. If such driving, of itself, does endanger the life, limb, or property of another, such person shall be guilty of a felony punishable by confinement in the state correctional facility for not less than one year nor more than five years or, in the discretion of the jury or the court trying the case without a jury, by confinement in jail for twelve months and no portion of such sentence shall be suspended except that (i) if the sentence is more than one year in the state correctional facility, any portion of such sentence in excess of one year may be suspended or (ii) in cases wherein such operation is necessitated in situations of apparent extreme emergency which require such operation to save life or limb, said sentence, or any part thereof may be suspended.
3. If the offense of driving while an order of adjudication a
determination as an habitual offender is in effect is a second or
subsequent such offense, such person shall be punished as provided in
subdivision 2 of this section, irrespective of whether the offense, of
itself, endangers the life, limb, or property of another.
C. For the purpose of enforcing this section, in any case in which the
accused is charged with driving a motor vehicle or self-propelled machinery
or equipment while his license, permit, or privilege to drive is suspended or
revoked or is charged with driving without a license, the court before
hearing the charge shall determine whether the person has been held
classified as an habitual offender by the Commissioner
and, by reason of this holdingdetermination, is
barred from driving a motor vehicle or self-propelled machinery or equipment
on the highways in the Commonwealth. If the court determines the accused has
been helddetermined to be an habitual offender, it
shall certify the case to the court of record of its jurisdiction for trial.
§ 46.2-358. Restoration of privilege of driving motor vehicle; when petition may be brought; terms and conditions.
In any case where 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 notification of the revocation determination by the
Commissioner finding a person to be an habitual offender and directing
him not 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,local Alcohol Safety Action
Program for restoration of his privilege to drive a motor vehicle in
the Commonwealth. On such petition, and for good cause shown, the court
maylocal Alcohol Safety Action Program may recommend to the
Commissioner that he, 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 Commissioner may prescribe or (ii) issue
an 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.
§ 46.2-360. Restoration of privilege of operating motor vehicle; restoration of privilege to persons convicted under certain other provisions of Habitual Offender Act.
Any person who has been found to be an habitual offender where the
adjudication determination was based in part and
dependent on a conviction as set out in subdivision 1 b of § 46.2-351, may
petition the court in which he was found to be an habitual offender, or
the circuit court in the political subdivision in which he then
resideslocal Alcohol Safety Action Program for a recommendation to
the Commissioner:
1. For restoration of his privilege to drive a motor vehicle in the
Commonwealth after the expiration of five years from the date of
the adjudicationnotice of the determination by the
Commissioner was received by the person. On such petition, and
recommendation by the local Alcohol Safety Action Program and for good
cause shown, the court Commissioner may, in
its his discretion, restore to the person the privilege
to drive a motor vehicle in the Commonwealth on whatever conditions the
court Commissioner may prescribe, subject to other
provisions of law relating to the issuance of driver's licenses, if the
court Commissioner is satisfied from the evidence
presented that: (i) at the time of the previous convictions, the petitioner
was addicted to or psychologically dependent on the use of alcohol or other
drugs; (ii) at the time of the hearing on the petition, he is no
longer addicted to or psychologically dependent on the use of alcohol or such
other drug; and (iii) the defendant person does not
constitute a threat to the safety and welfare of himself or others with
regard to the driving of a motor vehicle.
2. For a restricted permit to authorize such person to drive a motor vehicle
in the Commonwealth in the course of his employment and to drive a motor
vehicle to and from his home to the place of his employment after the
expiration of three years from the date of the
adjudicationhabitual offender determination by the
Commissioner. The court Commissioner may order
that a restricted license for such purposes be issued in accordance with the
procedures of subsection E of § 18.2-271.1, if the court
Commissioner is satisfied from the evidence presented that (i) at
the time of the previous convictions, the petitioner was addicted to or
psychologically dependent on the use of alcohol or other drugs, (ii) at the
time of the hearing on the petition, he is no longer addicted to or
psychologically dependent on the use of alcohol or such other drugs, and
(iii) the defendant person does not constitute a threat
to the safety and welfare of himself and others with regard to the driving of
a motor vehicle.
In the computation of the five- and three-year periods under subdivisions 1
and 2 of this section, such person shall be given credit for any period his
driver's license was administratively revoked under § 46.2-391 prior to
his adjudication the date on which notice of the
determination as an habitual offender by the Commissioner was
received by the person.
§ 46.2-361. Restoration of privilege after driving while license revoked or suspended for failure to pay fines or costs or furnish proof of financial responsibility.
A. Any person who has been found to be an habitual offender, where the
adjudication determination was based in part and
dependent on a conviction as set out in subdivision 1 c of § 46.2-351, may,
after three years from the date of the adjudication on which
notice the determination by the Commissioner was received by the
person, petition the court in which he was found to be an habitual
offender, or the circuit court in the political subdivision in which he then
resideslocal Alcohol Safety Action Program for a recommendation to
the Commissioner, for restoration of his privilege to drive a motor
vehicle in the Commonwealth.
B. Any person who has been found to be an habitual offender, where the
adjudication determination was based entirely upon
convictions as set out in subdivision 1 c of § 46.2-351, may, after payment
in full of all outstanding fines, costs and judgments relating to his
adjudication, and furnishing proof of financial responsibility, if
applicable, petition the court in which he was found to be an habitual
offender, or the circuit court in the political subdivision in which he then
resides, for restoration of local Alcohol Safety Action Program
for a recommendation to the Commissioner that his privilege to drive a
motor vehicle in the Commonwealth be restored.
C. This section shall apply only where the conviction resulted from a suspension or revocation ordered pursuant to (i) § 46.2-395 for failure to pay fines and costs, (ii) § 46.2-459 for failure to furnish proof of financial responsibility or (iii) § 46.2-417 for failure to satisfy a judgment, provided the judgment has been paid in full prior to the time of filing the petition.
D. On any such petition, the courtCommissioner, in
itshis discretion, may restore to the person his
privilege to drive a motor vehicle, on whatever conditions the court
Commissioner may prescribe, if the court
Commissioner is satisfied from the evidence presented that the
petitioner does not constitute a threat to the safety and welfare of himself
or others with respect to the operation of a motor vehicle, and that he has
satisfied in full all outstanding court costs, court fines and judgments
relating to his any applicable habitual offender
adjudication and furnished proof of financial responsibility, if applicable.