2006 Code of Virginia § 46.2-391 - Revocation of license for multiple convictions of driving while intoxicated; exception; petition fo...

46.2-391. Revocation of license for multiple convictions of driving whileintoxicated; exception; petition for restoration of privilege.

A. The Commissioner shall forthwith revoke and not thereafter reissue forthree years the driver's license of any person on receiving a record of theconviction of any person who (i) is adjudged to be a second offender inviolation of the provisions of subsection A of 46.2-341.24 (driving acommercial motor vehicle under the influence of drugs or intoxicants), or 18.2-266 (driving under the influence of drugs or intoxicants), if thesubsequent violation occurred within 10 years of the prior violation, or (ii)is convicted of any two or more offenses of 18.2-272 (driving while thedriver's license has been forfeited for a conviction under 18.2-266) if thesecond or subsequent violation occurred within 10 years of the prior offense.However, if the Commissioner has received a copy of a court order authorizingissuance of a restricted license as provided in subsection E of 18.2-271.1,he shall proceed as provided in the order of the court. For the purposes ofthis subsection, an offense in violation of a valid local ordinance, or lawof any other jurisdiction, which ordinance or law is substantially similar toany provision of Virginia law herein shall be considered an offense inviolation of such provision of Virginia law. Additionally, in no event shallthe Commissioner reinstate the driver's license of any person convicted of aviolation of 18.2-266, or of a substantially similar valid local ordinanceor law of another jurisdiction, until receipt of notification that suchperson has successfully completed an alcohol safety action program if suchperson was required by court order to do so unless the requirement forcompletion of the program has been waived by the court for good cause shown.A conviction includes a finding of not innocent in the case of a juvenile.

B. The Commissioner shall forthwith revoke and not thereafter reissue thedriver's license of any person after receiving a record of the conviction ofany person (i) convicted of a violation of 18.2-36.1 or 18.2-51.4 or (ii)convicted of three offenses arising out of separate incidents or occurrenceswithin a period of 10 years in violation of the provisions of subsection A of 46.2-341.24 or 18.2-266, or a substantially similar ordinance or law ofany other jurisdiction, or any combination of three such offenses. Aconviction includes a finding of not innocent in the case of a juvenile.

C. Any person who has had his driver's license revoked in accordance withsubsection B of this section may petition the circuit court of his residence,or, if a nonresident of Virginia, any circuit court:

1. For restoration of his privilege to drive a motor vehicle in theCommonwealth after the expiration of five years from the date of his lastconviction. On such petition, and for good cause shown, the court may, in itsdiscretion, restore to the person the privilege to drive a motor vehicle inthe Commonwealth on condition that such person install an ignition interlocksystem in accordance with 18.2-270.1 on all motor vehicles, as defined in 46.2-100, owned by or registered to him, in whole or in part, for a period ofat least six months, and upon whatever other conditions the court mayprescribe, subject to the provisions of law relating to issuance of driver'slicenses, if the court is satisfied from the evidence presented that: (i) atthe time of his previous convictions, the petitioner was addicted to orpsychologically dependent on the use of alcohol or other drugs; (ii) at thetime of the hearing on the petition, he is no longer addicted to orpsychologically dependent on the use of alcohol or other drugs; and (iii) thedefendant does not constitute a threat to the safety and welfare of himselfor others with regard to the driving of a motor vehicle. However, prior toacting on the petition, the court shall order that an evaluation of theperson, to include an assessment of his degree of alcohol abuse and theappropriate treatment therefor, if any, be conducted by a Virginia AlcoholSafety Action Program and recommendations therefrom be submitted to thecourt. The court may, in lieu of restoring the person's privilege to drive,authorize the issuance of a restricted license for a period not to exceedfive years in accordance with the provisions of 18.2-270.1 and subsection Eof 18.2-271.1. The court shall notify the Virginia Alcohol Safety ActionProgram which shall during the term of the restricted license monitor theperson's compliance with the terms of the restrictions imposed by the court.Any violation of the restrictions shall be reported to the court, and thecourt may then modify the restrictions or revoke the license.

2. For a restricted license to authorize such person to drive a motor vehiclein the Commonwealth in the course of his employment and to drive a motorvehicle to and from his home to the place of his employment after theexpiration of three years from the date of his last conviction. The court mayorder that a restricted license for such purposes be issued in accordancewith the procedures of subsection E of 18.2-271.1, if the court issatisfied from the evidence presented that (i) at the time of the previousconvictions, the petitioner was addicted to or psychologically dependent onthe use of alcohol or other drugs; (ii) at the time of the hearing on thepetition, he is no longer addicted to or psychologically dependent on the useof alcohol or such other drugs; and (iii) the defendant does not constitute athreat to the safety and welfare of himself and others with regard to thedriving of a motor vehicle. The court shall prohibit the person to whom arestricted license is issued from operating a motor vehicle that is notequipped with a functioning, certified ignition interlock system during allor any part of the term for which the restricted license is issued, inaccordance with the provisions set forth in 18.2-270.1. However, prior toacting on the petition, the court shall order that an evaluation of theperson, to include an assessment of his degree of alcohol abuse and theappropriate treatment therefor, if any, be conducted by a Virginia AlcoholSafety Action Program and recommendations therefrom be submitted to thecourt. The Virginia Alcohol Safety Action Program shall during the term ofthe restricted license monitor the person's compliance with the terms of therestrictions imposed by the court. Any violation of the restrictions shall bereported to the court, and the court may then modify the restrictions orrevoke the license.

The ignition interlock system installation requirement under subdivisions 1and 2 of this subsection need only be satisfied once as to any singlerevocation under subsection B of this section for any person seekingrestoration under subdivision 1 following the granting of a restrictedlicense under subdivision 1 or 2.

D. Any person convicted of driving a motor vehicle or any self-propelledmachinery or equipment (i) while his license is revoked pursuant tosubsection A or B or (ii) in violation of the terms of a restricted licenseissued pursuant to subsection C shall, provided such revocation was based onat least one conviction for an offense committed after July 1, 1999, bepunished as follows:

1. If such driving does not of itself endanger the life, limb, or property ofanother, such person shall be guilty of a Class 1 misdemeanor punishable by amandatory minimum term of confinement in jail of 10 days except in caseswherein such operation is necessitated in situations of apparent extremeemergency that require such operation to save life or limb, the sentence, orany part thereof, may be suspended.

2. a. If such driving (i) of itself endangers the life, limb, or property ofanother or (ii) takes place while such person is in violation of 18.2-36.1, 18.2-51.4, 18.2-266, subsection A of 46.2-341.24, or asubstantially similar law or ordinance of another jurisdiction, irrespectiveof whether the driving of itself endangers the life, limb or property ofanother and the person has been previously convicted of a violation of 18.2-36.1, 18.2-51.4, 18.2-266, subsection A of 46.2-341.24, or asubstantially similar local ordinance, or law of another jurisdiction, suchperson shall be guilty of a felony punishable by confinement in a statecorrectional facility for not less than one year nor more than five years,one year of which shall be a mandatory minimum term of confinement or, in thediscretion of the jury or the court trying the case without a jury, bymandatory minimum confinement in jail for a period of 12 months and noportion of such sentence shall be suspended or run concurrently with anyother sentence.

b. However, in cases wherein such operation is necessitated in situations ofapparent extreme emergency that require such operation to save life or limb,the sentence, or any part thereof, may be suspended.

3. If any such offense of driving is a second or subsequent violation, suchperson shall be punished as provided in subdivision 2 of this subsection,irrespective of whether the offense, of itself, endangers the life, limb, orproperty of another.

E. Notwithstanding the provisions of subdivisions 2 and 3 of subsection D,following conviction and prior to imposition of sentence with the consent ofthe defendant, the court may order the defendant to be evaluated for and toparticipate in the Boot Camp Incarceration Program pursuant to 19.2-316.1,or the Detention Center Incarceration Program pursuant to 19.2-316.2, orthe Diversion Center Incarceration Program pursuant to 19.2-316.3.

F. Any period of driver's license revocation imposed pursuant to this sectionshall not begin to expire until the person convicted has surrendered hislicense to the court or to the Department of Motor Vehicles.

G. Nothing in this section shall prohibit a person from operating any farmtractor on the highways when it is necessary to move the tractor from onetract of land used for agricultural purposes to another such tract of landwhen the distance between the tracts is no more than five miles.

H. Any person who operates a motor vehicle or any self-propelled machinery orequipment (i) while his license is revoked pursuant to subsection A or B, or(ii) in violation of the terms of a restricted license issued pursuant tosubsection C, where the provisions of subsection D do not apply, shall beguilty of a violation of 18.2-272.

(Code 1950, 46-417; 1958, c. 541, 46.1-421; 1960, c. 364; 1964, c. 194;1968, c. 561; 1976, cc. 359, 612, 691; 1983, c. 504; 1984, cc. 658, 673, 780;1987, c. 409; 1989, cc. 705, 727; 1990, c. 949; 1994, c. 573; 1995, c. 486;1997, cc. 691, 706; 1999, cc. 945, 987; 2000, cc. 243, 956, 958, 959, 980,982, 985; 2001, c. 739; 2004, cc. 461, 937, 951.)

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