2006 Code of Virginia § 18.2-271.1 - Probation, education and rehabilitation of person charged or convicted; person convicted under law ...

18.2-271.1. Probation, education and rehabilitation of person charged orconvicted; 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 theprovisions thereof, or provisions of subsection A of 46.2-341.24, shall berequired by court order, as a condition of probation or otherwise, to enterinto and successfully complete an alcohol safety action program in thejudicial district in which such charge is brought or in any other judicialdistrict upon such terms and conditions as the court may set forth. However,upon motion of a person convicted of any such offense following an assessmentof the person conducted by an alcohol safety action program, the court, forgood cause, may decline to order participation in such a program if theassessment by the alcohol safety action program indicates that interventionis not appropriate for such person. In no event shall such persons bepermitted to enter any such program which is not certified as meeting minimumstandards and criteria established by the Commission on the Virginia AlcoholSafety Action Program (VASAP) pursuant to subsection H of this section and to 18.2-271.2. However, any person charged with a violation of a first orsecond offense of 18.2-266 (i), (ii), (iii) or (iv), or any ordinance of acounty, city, or town similar to the provisions thereof, or provisions ofsubsection A of 46.2-341.24, may, at any time prior to trial, enter into analcohol safety action program in the judicial district in which such chargeis brought or in any other judicial district.

B. The court shall require the person entering such program under theprovisions 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 theCommission on VASAP, but not to exceed 10 percent, shall be forwarded monthlyto be deposited with the State Treasurer for expenditure by the Commission onVASAP, and the balance shall be held in a separate fund for localadministration of driver alcohol rehabilitation programs. Upon a positivefinding that the defendant is indigent, the court may reduce or waive thefee. In addition to the costs of the proceeding, fees as may reasonably berequired of defendants referred for intervention under any such program maybe 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 18.2-271. Inaddition, if the conviction was for a second offense committed within lessthan five years after a first such offense, the court shall order thatrestoration of the person's license to drive be conditioned upon theinstallation of an ignition interlock system on each motor vehicle, asdefined in 46.2-100, owned by or registered to the person, in whole or inpart, for a period of six months beginning at the end of the three yearlicense revocation, unless such a system has already been installed for sixmonths prior to that time pursuant to a restricted license order undersubsection E of this section. Upon a finding that a person so convicted isrequired to participate in the program described herein, the court shallenter the conviction on the warrant, and shall note that the person soconvicted has been referred to such program. The court may then proceed toissue an order in accordance with subsection E of this section, if the courtfinds that the person so convicted is eligible for a restricted license. Ifthe court finds good cause for a person not to participate in such program orsubsequently that such person has violated, without good cause, any of theconditions set forth by the court in entering the program, the court shalldispose of the case as if no program had been entered, in which event therevocation provisions of 46.2-389 and subsection A of 46.2-391 shall beapplicable to the conviction. The court shall, upon final disposition of thecase, send a copy of its order to the Commissioner of the Department of MotorVehicles. 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 beallowed as provided by law. The time within which an appeal may be takenshall be calculated from the date of the final disposition of the case or anymotion for rehearing, whichever is later.

D. Any person who has been convicted in another state of the violation of alaw of such state substantially similar to the provisions of 18.2-266 orsubsection A of 46.2-341.24, and whose privilege to operate a motor vehiclein this Commonwealth is subject to revocation under the provisions of 46.2-389 and subsection A of 46.2-391, may petition the general districtcourt of the county or city in which he resides that he be given probationand assigned to a program as provided in subsection A of this section andthat, upon entry into such program, he be issued an order in accordance withsubsection E of this section. If the court finds that such person would havequalified therefor if he had been convicted in this Commonwealth of aviolation of 18.2-266 or subsection A of 46.2-341.24, the court may grantthe petition and may issue an order in accordance with subsection E of thissection as to the period of license suspension or revocation imposed pursuantto 46.2-389 or subsection A of 46.2-391. Such order shall be conditionedupon the successful completion of a program by the petitioner. If the courtsubsequently finds that such person has violated any of the conditions setforth by the court, the court shall dispose of the case as if no program hadbeen entered and shall notify the Commissioner, who shall revoke the person'slicense 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 revokingor suspending such person's license to operate a motor vehicle shall beforthwith sent to the Commissioner of the Department of Motor Vehicles.

No period of license suspension or revocation shall be imposed pursuant tothis subsection which, when considered together with any period of licensesuspension or revocation previously imposed for the same offense in anystate, results in such person's license being suspended for a period inexcess of the maximum periods specified in this subsection.

E. Except as otherwise provided herein, whenever a person enters a certifiedprogram pursuant to this section, and such person's license to operate amotor vehicle, engine or train in the Commonwealth has been suspended orrevoked, the court may, in its discretion and for good cause shown, providethat such person be issued a restricted permit to operate a motor vehicle forany of the following purposes: (i) travel to and from his place ofemployment; (ii) travel to and from an alcohol rehabilitation or safetyaction program; (iii) travel during the hours of such person's employment ifthe 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 properwritten verification to the court that such person is enrolled in acontinuing program of education; (v) travel for health care services,including medically necessary transportation of an elderly parent with aserious medical problem upon written verification of need by a licensedhealth professional; (vi) travel necessary to transport a minor child underthe care of such person to and from school, day care, and facilities housingmedical service providers; (vii) travel to and from court-ordered visitationwith a child of such person; (viii) travel to a screening, evaluation andeducation program entered pursuant to 18.2-251 or subsection H of 18.2-258.1; or (ix) travel to and from court appearances in which he is asubpoenaed witness or a party and appointments with his probation officer andto and from any programs required by the court or as a condition ofprobation. No restricted license issued pursuant to this subsection shallpermit any person to operate a commercial motor vehicle as defined in theVirginia Commercial Driver's License Act ( 46.2-341.1 et seq.). The courtshall order the surrender of such person's license to operate a motor vehicleto be disposed of in accordance with the provisions of 46.2-398 and shallforward to the Commissioner of the Department of Motor Vehicles a copy of itsorder entered pursuant to this subsection, which shall specifically enumeratethe restrictions imposed and contain such information regarding the person towhom such a permit is issued as is reasonably necessary to identify suchperson. The court shall also provide a copy of its order to the person soconvicted who may operate a motor vehicle on the order until receipt from theCommissioner of the Department of Motor Vehicles of a restricted license, ifthe order provides for a restricted license for that time period. A copy ofsuch order and, after receipt thereof, the restricted license shall becarried at all times while operating a motor vehicle. Any person who operatesa motor vehicle in violation of any restrictions imposed pursuant to thissection shall be guilty of a violation of 18.2-272. Such restricted licenseshall be conditioned upon enrollment within 15 days in, and successfulcompletion of, a program as described in subsection A of this section. Norestricted license shall be issued during the first four months of arevocation 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 committedwithin 10 years of a first such offense. No restricted license shall beissued during the first year of a revocation imposed pursuant to subsection Bof 18.2-271 or subsection A of 46.2-391 for a second offense of the typedescribed therein committed within five years of a first such offense. Norestricted license shall be issued during any revocation period imposedpursuant 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 whoseprivilege or license has been suspended or revoked as a result of a violationof 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 tothe 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 Departmentof Motor Vehicles as provided in 46.2-411, $40 shall be transferred to theCommission on VASAP, and $25 shall be transferred to the CommonwealthNeurotrauma Initiative Trust Fund.

F. The court shall have jurisdiction over any person entering such programunder any provision of this section until such time as the case has beendisposed of by either successful completion of the program, or revocation dueto ineligibility or violation of a condition or conditions imposed by thecourt, whichever shall first occur. Revocation proceedings shall be commencedby notice to show cause why the court should not revoke the privilegeafforded by this section. Such notice shall be made by first-class mail tothe last known address of such person, and shall direct such person to appearbefore the court in response thereto on a date contained in such notice,which shall not be less than 10 days from the date of mailing of the notice.Failure to appear in response to such notice shall of itself be grounds forrevocation of such privilege. Notice of revocation under this subsectionshall be sent forthwith to the Commissioner of the Department of MotorVehicles.

G. For the purposes of this section, any court which has convicted a personof a violation of 18.2-266, subsection A of 46.2-341.24 or any ordinanceof a county, city or town similar to the provisions of 18.2-266 shall havecontinuing jurisdiction over such person during any period of licenserevocation related to that conviction, for the limited purposes of (i)referring such person to a certified alcohol safety action program, (ii)providing for a restricted permit for such person in accordance with theprovisions of subsection E, and (iii) imposing terms, conditions andlimitations for actions taken pursuant to clauses (i) and (ii), whether ornot it took either such action at the time of the conviction. This continuingjurisdiction is subject to the limitations of subsection E that provide thatno restricted license shall be issued during a revocation imposed pursuant tosubsection C of 18.2-271 or subsection B of 46.2-391 or during the firstfour months or first year, whichever is applicable, of the revocation imposedpursuant to subsection B of 18.2-271 or subsection A of 46.2-391. Theprovisions of this subsection shall apply to a person convicted of aviolation of 18.2-266, subsection A of 46.2-341.24 or any ordinance of acounty, city or town similar to the provisions of 18.2-266 on, after and atany time prior to July 1, 2003.

H. The State Treasurer, the Commission on VASAP or any city or county isauthorized to accept any gifts or bequests of money or property, and anygrant, loan, service, payment or property from any source, including thefederal government, for the purpose of driver alcohol education. Any suchgifts, bequests, grants, loans or payments shall be deposited in the separatefund provided in subsection B.

I. The Commission on VASAP, or any county, city, town, or any combinationthereof may establish and, if established, shall operate, in accordance withthe standards and criteria required by this subsection, alcohol safety actionprograms in connection with highway safety. Each such program shall operateunder the direction of a local independent policy board chosen in accordancewith procedures approved and promulgated by the Commission on VASAP. Localsitting or retired district court judges who regularly hear or heard casesinvolving driving under the influence and are familiar with their localalcohol safety action programs may serve on such boards. The Commission onVASAP shall establish minimum standards and criteria for the implementationand operation of such programs and shall establish procedures to certify allsuch programs to ensure that they meet the minimum standards and criteriastipulated by the Commission. The Commission shall also establish criteriafor the administration of such programs for public information activities,for accounting procedures, for the auditing requirements of such programs andfor the allocation of funds. Funds paid to the Commonwealth hereunder shallbe utilized in the discretion of the Commission on VASAP to offset the costsof state programs and local programs run in conjunction with any county, cityor town and costs incurred by the Commission. The Commission shall submit anannual report as to actions taken at the close of each calendar year to theGovernor and the General Assembly.

J. Notwithstanding any other provisions of this section or of 18.2-271,nothing in this section shall permit the court to suspend, reduce, limit, orotherwise modify any disqualification from operating a commercial motorvehicle imposed under the provisions of the Virginia Commercial Driver'sLicense Act ( 46.2-341.1 et seq.).

(1975, c. 601; 1976, cc. 612, 691; 1977, c. 240; 1978, c. 352; 1979, c. 353;1980, c. 589; 1981, c. 195; 1982, c. 301; 1983, c. 504; 1984, c. 778; 1986,cc. 552, 590; 1987, cc. 465, 663; 1988, cc. 781, 858, 859, 888; 1989, c. 705;1990, c. 949; 1991, cc. 131, 491; 1992, c. 559; 1993, cc. 527, 919; 1994, cc.359, 363, 870; 1996, c. 984; 1997, cc. 472, 508; 1998, c. 703; 1999, c. 743;2000, cc. 958, 970, 980; 2001, cc. 182, 645, 779; 2002, c. 806; 2003, c. 290;2004, c. 720.)