Protecting Your Rights
“Can I Drive Yet?”
What Happens to Your License After Arrest for DUI but Before Trial
Next to going to jail, the worst thing that can happen to most people is losing their driver’s license. Unfortunately, Virginia is extraordinarily strict about taking away people’s right to drive.
There are three types of license suspension that can affect a person charged with DUI in Virginia: 1) administrative suspension – in which the arresting officer automatically confiscates your license before trial; 2) judicial suspension – in which the judge suspends and the bailiff confiscates your license; and 3) DMV suspension – in which the DMV sends you a letter after your trial notifying you that you no longer have the right to drive because of excessive demerit points.
What Is an Administrative Suspension and to Which DUIs Does It Apply?
An “administrative suspension” (found in Va. Code §§ 46.2-391.2) occurs when a driver’s license is taken away after an arrest for DUI or Refusal to Submit to a Breath Test. Administrative suspensions apply only to drivers who are charged with refusal to submit to a breath/blood test, or who are charge with DUI based on a BAC of .08 or more (unless they are under 21, in which case it is a BAC of .02 or more). There should be no administrative suspension for DUI arrests based only on erratic driving and field sobriety tests.
If you have a Virginia driver’s license, the officer will confiscate it upon arrest or at the police station and will make you sign a notification of administrative suspension. If you have an out-of-state license the police should not confiscate your physical license but instead will make you sign a piece of paper that notifies you of your administrative suspension from driving in Virginia.
If the police confiscate an out-of-state license or if the police lose your license you should contact a DUI attorney immediately to aid you in getting your license back.
Seven Days versus 60 Days of Administrative Suspension
In Virginia, administrative suspensions last only seven days for first-time offenders, but drivers with a prior DUI or refusal to submit conviction will be suspended from driving for 60 days or until the day of trial (whichever comes first). Drivers charged with a third DUI may be administratively suspended until their trial.
Drivers can appeal an administrative suspension and/or receive a restricted driver’s license before trial. However, drivers should make sure that any attorney contract they sign includes help with the administrative suspension process.
What Happens to My Actual License When the Police Take It for DUI?
When a driver’s license is confiscated in Virignia, the police turn it in to the magistrate with a copy of the notice of administrative suspension. The magistrate then gives the license to the court clerk. The court clerk will keep the license until the suspension period is over, and then mail it back to the driver at the address on the license. Consequently, the driver will not get the license back until the administrative suspension is up and the license arrives in the mail. If the address on the license is incorrect, then the driver may not receive their license. Drivers may request that the court clerk hold the license for pick-up at the court clerk’s office.
The police are not supposed to confiscate out-of-state driver’s licenses and the administrative suspension only applies to driving in Virginia. This means that if you are arrested for DUI in Virginia and have a non-Virginia driver’s license, you can drive anywhere except Virginia during the suspension period. Virginia driver’s license holders, however, cannot drive anywhere during the suspension period, even if they are outside of Virginia.
Appealing an Administrative Suspension
A driver can appeal an administrative suspension. If the suspension is appealed, the court must let the driver appear before a judge within the next business day. Contact an attorney immediately to see whether you may be able to void your administrative suspension. Also, read your attorney-client contract carefully to determine whether you will be charged extra for an administrative suspension appeal.
Judicial Suspension for DUI etc.
The second way that Virginia may revoke your right to drive is through the judicial process. If a person is found guilty of DUI for the first time, the judge (by law) must suspend that person’s license for 12 months. A second offense in ten years requires a mandatory suspension of three years. A third or fourth offense will result in an indefinite suspension of the right to drive.
Conviction of refusal to submit to a breath/blood test with no prior convictions will result in a 12-month suspension of your driver’s license, and the suspension will be in addition to whatever license suspensions you may have pending for DUI or other charges.
For all types of DUI and refusal to submit, the judicial license suspension is mandatory and neither the judge nor the prosecutor has the power to convict a person without also suspending their license for the full time period.
The court may, under certain circumstances, grant a driver a restricted driver’s license. Restricted driver’s licenses are by definition “restrictive.” A restricted driver’s license limits when and where you can drive, and these restrictions must be strictly obeyed. If they are not, the driver may be charged with additional crimes.
A first-time DUI offender may be granted a restricted license immediately upon registering for ASAP, but a second conviction within ten years means no restricted license will be granted for four months. If the second conviction is within five years, the driver must wait one year to apply for a restricted license. A third-time offender must wait three years to get a restricted license.
Drivers convicted of refusal to submit are not able to receive a restricted license during the duration of their suspension for refusal to submit.
The final way that a driver can lose his license from a DUI conviction in Virginia is by DMV demerit points. Almost all of the DUI and DUI-related offenses (including refusal) are six-point offenses. The Virginia DMV has complete control over the driver’s license point system, and there is nothing a judge can do about it.
For minor drivers, any demerit-point conviction means they must attend a driver improvement class. Failure to do so within 90 days results in a license suspension which lasts until the program is completed. A second point-conviction results in a 90-day license suspension. A third results in a suspension of one year or until the offender reaches age 18, whichever is longer.
For adults, the accumulation of eight demerit points in 12 months or 12 points in 24 months results in an advisory letter from the Virginia DMV. The accumulation of 12 demerit points within 12 months or 18 points in 24 months results in a mandatory driver improvement class and six months of DMV driving probation followed by 18 months on a control period. The driver improvement program must be completed within 90 days or the driver’s license will be suspended indefinitely.
|Consequences of Demerit Points in Virginia (Adult Drivers)|
|within 12 months||within 24 months|
|8 points||Letter from DMV||Nothing|
|12 points||Mandatory driver-improvement class||Letter from DMV|
|18 points||Mandatory 90-day license suspension + driver-improvement class + probation for 6 months||Mandatory driver-improvement class|
|24 points||Mandatory 90-day license suspension + driver-improvement class + probation for 6 months||Mandatory 90-day license suspension + driver-improvement class + probation for 6 months|
The accumulation of 18 points in 12 months or 24 points in 24 months results in a mandatory 90-day license suspension. Once that period has expired, offenders must complete driver improvement classes before their license can be restored. After restoration, they will be on probation for six months and a control period for 18 months.
If a driver is convicted of any traffic offense while on DMV probation, his license will be suspended. The suspension will last 45 days for a three-point violation, 60 days for a four-point violation, and 90 days for a six-point violation. Once the suspension period is over, the driver will be placed on probation for an additional six months followed an 18 month control period.
If a driver gets any demerit point moving violations while on the control period, the DMV will place that driver back on probation for another six months, followed by another 18-month control period.
A driver should always get a copy of his driving record before trial and give it to their DUI attorney, so he can determine whether the driver is in danger of a Virginia DMV suspension. A DMV suspension can jeopardize a driver’s restricted license.
Restrictive Driver’s License
If convicted for DUI (but not for refusal to submit to a breath test), a Virginia driver may be able to get a restricted license. Check your attorney-client contract before signing it to make sure that your attorney will be obligated to assist you in the post-trial restricted license application process.
Your judge must approve your restricted license application. The trial judge has the discretion to determine whether a driver can get a restricted license and what the restrictions will be.
A restrictive driver’s license allows a driver to drive to and from home, work, for work, medical treatment, ASAP sessions, court, court-ordered child visitation, church, probation visits, delayed turn in, and/or school during very specific times. The restricted license states the addresses you can drive to and the hours during which you may drive to each. Driving outside those times or on anything but a direct path between the approved locations will result in a conviction for driving on a suspended license.
The courts will ask for documentation of your health care needs, school schedule, or other approved needs and schedules, and the judge will set the times (for example, 7:00 – 9:00 a.m. and 4:00 – 6:00 p.m., Monday – Friday). Talk to your attorney about your schedule and driving needs to determine how much driving your local judges will allow.
A restricted driver’s license may be conditional on the driver registering for ASAP, paying fines and court costs, getting evaluated by ASAP, or completing ASAP. The trial judge or the court clerk’s office will set the terms and conditions (if any) on when and how you can get a restricted driver’s license. Make sure your attorney-client contract includes provisions for applying for a restricted license and registering for ASAP.
In Virginia, installing an ignition interlock is often a condition for receiving a restricted driver’s license. Ignition interlock is mandatory anytime a driver is convicted of any form of DUI (other than first-time DUI) without an elevated BAC (i.e. BAC must be lower than .15).
The interlock system is a portable breathalyzer that is installed in the defendant’s car. The system comes with a key-chain style breathalyzer, and the driver must blow into the breathalyzer to start the car. He then must blow again every 15-30 minutes to keep the car running.
If the device detects a BAC of .02 or above, the car shuts off. Furthermore, the results of the test are saved electronically so that if the driver has violated the terms of his restricted license, he may be charge with “DUI with a restricted license”. Blowing a .02 on the ignition interlock may also trigger a probation violation, and the driver may have to serve the remainder of his suspended jail sentence, pay the remainder of his suspended fine, and possibly lose his restricted license.
The ignition interlock system costs approximately $70-$110 to install, and $60 (per system) a month to lease. A driver will need one system for each car he owns or drives. Sometimes a driver can petition the court to remove the ignition interlock after a certain period of time has passed. Talk to your attorney about this possibility.
Operating a vehicle without ignition interlock after being required to do so by the court is a crime, and blowing into someone else’s ignition interlock is also a serious crime.
Reinstating Your License After DUI
A Virginia driver who was found guilty of DUI cannot get his driver’s license back until his suspension period has expired, he has paid approximately $175 in DMV reinstatement fees, and he has been reissued a driver’s license from the DMV. If a driver has any concerns about whether he can get his license back, he should contact the DMV and request a “compliance summary.” The summary will spell out all the conditions necessary for the driver to get his license back.
Out-of-State Driver’s License
The Virginia government (police, judge, or DMV) can suspend an out-of-state license holder’s right to drive in Virginia, but they are not allowed to confiscate an out-of-state license. If the police or bailiff confiscates your out-of-state driver’s license, you should notify your attorney immediately to begin the process of getting it back. Once again, check your attorney-client contract to make sure your attorney will not charge you extra for these services.
Virginia can only suspend a Virginia driver’s license. If you have an out-of-state license, you can still drive anywhere outside of Virginia unless your own state suspends your license. Each state has unique rules and processes for determining whether to suspend a license based on a Virginia DUI conviction.
What Happens if I Drive While My License Is Suspended for DUI?
In Virginia, driving on a license suspended for DUI is a Class 1 misdemeanor. It can lead to up to 12 months of jail, one year of additional license suspension, 120 days of vehicle impoundment, and can cost up to thousands in fines, fees, and costs.
Many people think that they can get away with a little bit of driving while their license is suspended. However, an officer in a cruiser can pull up behind you in traffic, run your license plate in 15 seconds, and potentially tell whether you are suspended. Driving on a suspended license is one of the most common criminal charges in Virginia.