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1999 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-270 and 18.2-271.1 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction.
Any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor.
Any person convicted of a second offense committed within less than five years
after a first offense under § 18.2-266 shall be punishable by a fine of not
less than $200 nor more than $2,500 and by confinement in jail for not less than one
month nor more than one year. Forty-eight hours of such confinement shall be a
mandatory, minimum sentence not subject to suspension by the court. Any person
convicted of a second offense committed within a period of five to ten years of
a first offense under § 18.2-266 shall be punishable by a fine of not less than
$200 nor more than $2,500 and by confinement in jail for not less than one month nor
more than one year. Any person convicted of a third offense or subsequent
offense committed within ten years of an offense under § 18.2-266 shall be
punishable by a fine of not less than $500 nor more than $2,500 and by confinement
in jail for not less than two months nor more than one year. Thirty days of
such confinement shall be a mandatory, minimum sentence not subject to
suspension by the court if the third or subsequent offense occurs within less
than five years. Ten days of such confinement shall be a mandatory, minimum
sentence not subject to suspension by the court if the third or subsequent
offense occurs within a period of five to ten years of a first offense. Unless
otherwise modified by the court, the defendant shall remain on probation and under
the terms of any suspended sentence for the same period as his operator’s
license was suspended, not to exceed three years.
In addition to the penalty otherwise authorized by this section or §
16.1-278.9, any person convicted of a violation of § 18.2-266 committed while
transporting a person seventeen years of age or younger shall be (i) fined an
additional minimum of $100 and not more than $500 and not more than $1000 and
(ii) sentenced to perform forty hours of community service in a program benefitting children or, for
a subsequent offense, eighty hours of community service in such a program.
For the purpose of this section a conviction or finding of guilty in the case
of a juvenile under the following shall be considered a prior conviction: (i)
the provisions of § 18.2-51.4, § 18.2-266, former § 18.1-54 (formerly § 18-75),
the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of
the United States substantially similar to the provisions of § 18.2-51.4, and
§§ 18.2-266 through 18.2-269, or (ii) the provisions of subsection A
of § 46.2-341.24 or the substantially similar laws of any other state or of the
United States.
§ 18.2-271.1. Probation, education and rehabilitation of person charged or convicted; person convicted under law of another state.
A. Any person convicted of a first or second offense of § 18.2-266 (i), (ii),
(iii) or (iv), or any ordinance of a county, city, or town similar to the provisions thereof,
or provisions of subsection A of § 46.2-341.24, shall or upon conviction of a
second offense thereunder, may, be required by court order, as a condition of
probation or otherwise, to enter into and successfully complete an alcohol safety
action program in the judicial district in which such charge is brought or in
any other judicial district upon such terms and conditions as the court may set
forth. However, upon motion of a person convicted of a first any such offense
following an assessment of the person conducted by an alcohol safety action program, the court, for
good cause, may decline to order participation in such a program. In no event
shall such persons be permitted to enter any such program which is not certified as
meeting minimum standards and criteria established by the Commission on the
Virginia Alcohol Safety Action Program (VASAP) pursuant to subsection H of this
section and to § 18.2-271.2. In the determination of the eligibility of such
person convicted of a second offense to enter such a program, the court shall consider
his prior record of participation in any other alcohol rehabilitation program. If such
person has never entered into an alcohol safety action program, in keeping with
the procedures provided for in this section, and upon motion of the accused or
his counsel, the court shall give mature consideration to the needs of such
person in determining whether he shall be allowed to enter such program.
B. The court shall require the person entering such program under the provisions of this section to pay a fee of no less than $250 but no more than $300. A reasonable portion of such fee, as may be determined by the Commission on VASAP, but not to exceed ten percent, shall be forwarded monthly to be deposited with the State Treasurer for expenditure by the Commission on VASAP, and the balance shall be held in a separate fund for local administration of driver alcohol rehabilitation programs. Upon a positive finding that the defendant is indigent, the court may reduce or waive the fee. In addition to the costs of the proceeding, fees as may reasonably be required of defendants referred for intervention under any such program may be charged.
C. Upon conviction of a violation of § 18.2-266 or any ordinance of a county,
city or town similar to the provisions thereof, or subsection A of §
46.2-341.24, the court shall impose the sentence authorized by § 18.2-270 or §
46.2-341.28 and the license revocation as authorized by §§ 18.2-270 and §
18.2-271. Upon a finding that a person so convicted is eligible for
participation required to participate in the program described herein, the
court shall enter the conviction on the warrant, and shall note that the person so convicted has
been referred to such program. The court may then proceed to issue an order in accordance with
subsection E of this section, if the court finds that the person so convicted
is eligible for a restricted license. If the court finds that a person is not
eligible for good cause for a person not to participate in such program or
subsequently that such person has violated, without good cause, any of the conditions set forth
by the court in entering the program, the court shall dispose of the case as if no program had
been entered, in which event the revocation provisions of § 46.2-389 and
subsection A of § 46.2-391 shall be applicable to the conviction. The court
shall, upon final disposition of the case, send a copy of its order to the
Commissioner of the Department of Motor Vehicles. If such order provides for the
issuance of a restricted license, the Commissioner of the Department of Motor
Vehicles, upon receipt thereof, shall issue a restricted license. Appeals from
any such disposition shall be allowed as provided by law. The time within which
an appeal may be taken shall be calculated from the date of the final
disposition of the case or any motion for rehearing, whichever is later.
D. Any person who has been convicted in another state of the violation of a law of such state substantially similar to the provisions of § 18.2-266 or subsection A of § 46.2-341.24, and whose privilege to operate a motor vehicle in this Commonwealth is subject to revocation under the provisions of § 46.2-389 and subsection A of § 46.2-391, may petition the general district court of the county or city in which he resides that he be given probation and assigned to a program as provided in subsection A of this section and that, upon entry into such program, he be issued an order in accordance with subsection E of this section. If the court finds that such person would have qualified therefor if he had been convicted in this Commonwealth of a violation of § 18.2-266 or subsection A of § 46.2-341.24, the court may grant the petition and may issue an order in accordance with subsection E of this section as to the period of license suspension or revocation imposed pursuant to § 46.2-389 or subsection A of § 46.2-391. Such order shall be conditioned upon the successful completion of a program by the petitioner. If the court subsequently finds that such person has violated any of the conditions set forth by the court, the court shall dispose of the case as if no program had been entered and shall notify the Commissioner, who shall revoke the person's license in accordance with the provisions of § 46.2-389 or subsection A of § 46.2-391. A copy of the order granting the petition or subsequently revoking or suspending such person's license to operate a motor vehicle shall be forthwith sent to the Commissioner of the Department of Motor Vehicles.
No period of license suspension or revocation shall be imposed pursuant to this subsection which, when considered together with any period of license suspension or revocation previously imposed for the same offense in any state, results in such person's license being suspended for a period in excess of the maximum periods specified in this subsection.
E. Except as otherwise provided herein, whenever a person enters a certified
program pursuant to this section, and such person's license to operate a motor
vehicle, engine or train in the Commonwealth has been suspended or revoked, the
court may, in its discretion and for good cause shown, provide that such person
be issued a restricted permit to operate a motor vehicle for any or all of the
following purposes: (i) travel to and from his place of employment; (ii) travel
to and from an alcohol rehabilitation program entered pursuant to this
subsection; (iii) travel during the hours of such person's employment if the
operation of a motor vehicle is a necessary incident of such employment; (iv)
travel to and from school if such person is a student, upon proper written
verification to the court that such person is enrolled in a continuing program
of education; or (v) such other medically necessary travel as the court deems
necessary and proper upon written verification of need by a licensed health
professional; or (vi) travel necessary to transport a minor child under
the care of such person to and from school, day care, and facilities housing
medical service providers. No restricted license issued pursuant to this
subsection shall permit any person to operate a commercial motor vehicle as defined
in the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.). The
court shall order the surrender of such person's license to operate a motor vehicle
to be disposed of in accordance with the provisions of § 46.2-398 and shall
forward to the Commissioner of the Department of Motor Vehicles a copy of its order
entered pursuant to this subsection, which shall specifically enumerate the
restrictions imposed and contain such information regarding the person to whom
such a permit is issued as is reasonably necessary to identify such person. The
court shall also provide a copy of its order to the person so convicted who may
operate a motor vehicle on the order until receipt from the Commissioner of the
Department of Motor Vehicles of a restricted license, if the order provides for
a restricted license for that time period. A copy of such order and, after
receipt thereof, the restricted license shall be carried at all times while
operating a motor vehicle. Any person who operates a motor vehicle in violation
of any restrictions imposed pursuant to this section shall be guilty of a
violation of § 18.2-272. Such restricted license shall be conditioned upon
enrollment within fifteen days in, and successful completion of, a program as
described in subsection A of this section. No restricted license shall be
issued during the first four months of a revocation imposed pursuant to
subsection B of § 18.2-271 or subsection A of § 46.2-391 for a second offense
of the type described therein committed within ten years of a first such offense. No
restricted license shall be issued during any revocation period imposed pursuant to
subsection C of § 18.2-271 or subsection B of § 46.2-391. Notwithstanding the
provisions of § 46.2-411, the fee charged pursuant to § 46.2-411 for
reinstatement of the driver's license of any person whose privilege or license has been
suspended or revoked as a result of a violation of § 18.2-266, subsection A of
§ 46.2-341.24 or of any ordinance of a county, city or town, or of any federal law
or the laws of any other state similar to the provisions of § 18.2-266 or
subsection A of § 46.2-341.24 shall be $105. Forty dollars of such
reinstatement fee shall be retained by the Department of Motor Vehicles as provided
in § 46.2-411, forty dollars shall be transferred to the Commission on VASAP,
and twenty-five dollars shall be transferred to the Commonwealth Neurotrauma
Initiative Trust Fund.
F. The court shall have jurisdiction over any person entering such program under any provision of this section until such time as the case has been disposed of by either successful completion of the program, or revocation due to ineligibility or violation of a condition or conditions imposed by the court, whichever shall first occur. Revocation proceedings shall be commenced by notice to show cause why the court should not revoke the privilege afforded by this section. Such notice shall be made by first-class mail to the last known address of such person, and shall direct such person to appear before the court in response thereto on a date contained in such notice, which shall not be less than ten days from the date of mailing of the notice. Failure to appear in response to such notice shall of itself be grounds for revocation of such privilege. Notice of revocation under this subsection shall be sent forthwith to the Commissioner of the Department of Motor Vehicles.
G. The State Treasurer, the Commission on VASAP or any city or county is authorized to accept any gifts or bequests of money or property, and any grant, loan, service, payment or property from any source, including the federal government, for the purpose of driver alcohol education. Any such gifts, bequests, grants, loans or payments shall be deposited in the separate fund provided in subsection B.
H. The Commission on VASAP, or any county, city, town, or any combination thereof may establish and, if established, shall operate, in accordance with the standards and criteria required by this subsection, alcohol safety action programs in connection with highway safety. Each such program shall operate under the direction of a local independent policy board chosen in accordance with procedures approved and promulgated by the Commission on VASAP. Local sitting or retired district court judges who regularly hear or heard cases involving driving under the influence and are familiar with their local alcohol safety action programs may serve on such boards. The Commission on VASAP shall establish minimum standards and criteria for the implementation and operation of such programs and shall establish procedures to certify all such programs to ensure that they meet the minimum standards and criteria stipulated by the Commission. The Commission shall also establish criteria for the administration of such programs for public information activities, for accounting procedures, for the auditing requirements of such programs and for the allocation of funds. Funds paid to the Commonwealth hereunder shall be utilized in the discretion of the Commission on VASAP to offset the costs of state programs and local programs run in conjunction with any county, city or town and costs incurred by the Commission. The Commission shall submit an annual report as to actions taken at the close of each calendar year to the Governor and the General Assembly.
I. Notwithstanding any other provisions of this section or of § 18.2-271, nothing in this section shall permit the court to suspend, reduce, limit, or otherwise modify any disqualification from operating a commercial motor vehicle imposed under the provisions of the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.).