2006 Code of Virginia § 46.2-391.2 - Administrative suspension of license or privilege to operate a motor vehicle

46.2-391.2. Administrative suspension of license or privilege to operate amotor vehicle.

A. If a breath test is taken pursuant to 18.2-268.2 or any similarordinance and (i) the results show a blood alcohol content of 0.08 percent ormore by weight by volume or 0.08 grams or more per 210 liters of breath, or(ii) the results, for persons under 21 years of age, show a blood alcoholconcentration of 0.02 percent or more by weight by volume or 0.02 grams ormore per 210 liters of breath or (iii) the person refuses to submit to thebreath test in violation of 18.2-268.3 or any similar ordinance, and uponissuance of a petition or summons, or upon issuance of a warrant by themagistrate, for a violation of 18.2-51.4, 18.2-266, or 18.2-266.1, or anysimilar ordinance, or upon the issuance of a warrant or summons by themagistrate or by the arresting officer at a medical facility for a violationof 18.2-268.3, or any similar ordinance, the person's license shall besuspended immediately or in the case of (i) an unlicensed person, (ii) aperson whose license is otherwise suspended or revoked, or (iii) a personwhose driver's license is from a jurisdiction other than the Commonwealth,such person's privilege to operate a motor vehicle in the Commonwealth shallbe suspended immediately. The period of suspension of the person's license orprivilege to drive shall be seven days, unless the petition, summons orwarrant issued charges the person with a second or subsequent offense. If theperson is charged with a second offense the suspension shall be for 60 days.If not already expired, the period of suspension shall expire on the day andtime of trial of the offense charged on the petition, summons or warrant,except that it shall not so expire during the first seven days of thesuspension. If the person is charged with a third or subsequent offense, thesuspension shall be until the day and time of trial of the offense charged onthe petition, summons or warrant.

A law-enforcement officer, acting on behalf of the Commonwealth, shall servea notice of suspension personally on the arrested person. When notice isserved, the arresting officer shall promptly take possession of any driver'slicense held by the person and issued by the Commonwealth and shall promptlydeliver it to the magistrate. Any driver's license taken into possessionunder this section shall be forwarded promptly by the magistrate to the clerkof the general district court or, as appropriate, the court with jurisdictionover juveniles of the jurisdiction in which the arrest was made together withany petition, summons or warrant, the results of the breath test, if any, andthe report required by subsection B. A copy of the notice of suspension shallbe forwarded forthwith to both (a) the general district court or, asappropriate, the court with jurisdiction over juveniles of the jurisdictionin which the arrest was made and (b) the Commissioner. Transmission of thisinformation may be made by electronic means.

The clerk shall promptly return the suspended license to the person at theexpiration of the suspension. Whenever a suspended license is to be returnedunder this section or 46.2-391.4, the person may elect to have the licensereturned in person at the clerk's office or by mail to the address on theperson's license or to such other address as he may request.

B. Promptly after arrest and service of the notice of suspension, thearresting officer shall forward to the magistrate a sworn report of thearrest that shall include (i) information which adequately identifies theperson arrested and (ii) a statement setting forth the arresting officer'sgrounds for belief that the person violated 18.2-51.4, 18.2-266, or18.2-266.1, or a similar ordinance or refused to submit to a breath test inviolation of 18.2-268.3 or a similar ordinance. The report required by thissubsection shall be submitted on forms supplied by the Supreme Court.

C. Any person whose license or privilege to operate a motor vehicle has beensuspended under subsection A may, during the period of the suspension,request the general district court or, as appropriate, the court withjurisdiction over juveniles of the jurisdiction in which the arrest was madeto review that suspension. The court shall review the suspension within thesame time period as the court hears an appeal from an order denying bail orfixing terms of bail or terms of recognizance, giving this matter precedenceover all other matters on its docket. If the person proves to the court by apreponderance of the evidence that the arresting officer did not haveprobable cause for the arrest, that the magistrate did not have probablecause to issue the warrant, or that there was not probable cause for issuanceof the petition, the court shall rescind the suspension, or that portion ofit that exceeds seven days if there was not probable cause to charge a secondoffense or 60 days if there was not probable cause to charge a third orsubsequent offense, and the clerk of the court shall forthwith, or at theexpiration of the reduced suspension time, (i) return the suspended license,if any, to the person unless the license has been otherwise suspended orrevoked, (ii) deliver to the person a notice that the suspension under 46.2-391.2 has been rescinded or reduced, and (iii) forward to theCommissioner a copy of the notice that the suspension under 46.2-391.2 hasbeen rescinded or reduced. Otherwise, the court shall affirm the suspension.If the person requesting the review fails to appear without just cause, hisright to review shall be waived.

The court's findings are without prejudice to the person contesting thesuspension or to any other potential party as to any proceedings, civil orcriminal, and shall not be evidence in any proceedings, civil or criminal.

D. If a person whose license or privilege to operate a motor vehicle issuspended under subsection A is convicted under 18.2-36.1, 18.2-51.4,18.2-266, or 18.2-266.1, or any similar ordinance during the suspensionimposed by subsection A, and if the court decides to issue the person arestricted permit under subsection E of 18.2-271.1, such restricted permitshall not be issued to the person before the expiration of the first sevendays of the suspension imposed under subsection A.

(1994, cc. 359, 363; 1996, cc. 865, 1007; 1997, c. 691; 2001, c. 779; 2003,c. 605; 2004, cc. 937, 960; 2005, cc. 757, 840.)

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