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Developed and maintained by the Division of Legislative Automated Systems.
1996 SESSION
965810324Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-36.1, 46.2-391.2 and 46.2-391.4 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-36.1. Certain conduct punishable as involuntary manslaughter.
A. Any person who, as a result of driving under the influence in violation of subdivision (ii), (iii), or (iv) of § 18.2-266, unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than twenty years, one year of which shall be a mandatory, minimum term of imprisonment.
C. The provisions of this section shall not preclude prosecution under any other homicide statute. The driver's license of any person convicted under this section may be suspended for a period of up to five years , which shall be in addition to the suspension period provided under § 46.2-391.2. This section shall not preclude any other revocation or suspension required by law.
§ 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 warrant by the magistrate for a violation of §
18.2-36.1, § 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 license suspension
shall be for seven days if the warrant is issued for a
violation of § 18.2-266 or § 18.2-268.3. If the accused
is charged with a violation of §
18.2-36.1 and has been convicted of
a violation of § 18.2-36.1 or §
18.2-266 within the ten-year period
immediately preceding the alleged offense, the
license suspension shall continue in effect
until a subsequent dismissal, acquittal, nolle
prosequi or conviction of the charge. If the
accused has not previously been convicted of
such a violation within the
ten-year period, the suspension shall be for seven
days and, within the
seven-day period, the court in which the
charge will be heard shall issue a restricted permit to
the accused to operate a motor vehicle for the purposes
specified in subsection E of § 18.2-271.1 and in accordance
with procedures for issuance of the permit set forth in that section.
The restricted permit shall continue in effect until an
acquittal, dismissal, nolle prosequi or conviction of the charge.
As a condition of issuing the restricted permit
and for the period during which the permit is in effect,
the court shall further prohibit the accused from
operating a motor vehicle that is
not equipped with a functioning, certified ignition
interlock system in the same manner as provided in §
18.2-270.1.
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 of the jurisdiction in which the arrest was made together with the 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 the general district court of the jurisdiction in which the arrest was made and 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, or violated
§ 18.2-36.1. 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 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, 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.
§ 46.2-391.4. When suspension to be rescinded.
Notwithstanding any other provision of § 46.2-391.2, a subsequent dismissal or acquittal of all the charges under §§ 18.2-266 and 18.2-268.3 or any similar local ordinances or under § 18.2-36.1, for the same offense for which a person's driver's license or privilege to operate a motor vehicle was suspended under § 46.2-391.2 shall result in the immediate rescission of the suspension. In any such case, 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.