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1996 SESSION
Be 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 of any county, city or town and 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 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 § 18.2-266 or § 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
the any petition, summons or warrant or warrants, 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 (i)
the general district court or, as appropriate, the court with
jurisdiction over juveniles of the jurisdiction in which the arrest was
made and (ii) 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 § 18.2-266 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, or 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 § 18.2-266 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.
2. That an emergency exists and this act is in force from its passage.