Driving on Suspended Checklist

Driving on Suspended License Checklist

Driving on Suspended License and Driving Without a License
The Weiland Firm, PLC, – Attorneys at Law
Richmond, Virginia

I. Va. Code § 46.2-300.  DRIVING WITHOUT LICENSE

1. Rule. No person shall drive a motor vehicle on a highway without a valid license.

1. Elements.
   1. Drive v. Operate.
      1. Statute says “drive”.
      2. Edenton v. Commonwealth, 227Va. 413, uses the term operate in interpreting the prior driving without a license statute, § 46.1-349.
      3. Motor Vehicle.  § 46.2-100.
         1. Motor Vehicle – Every vehicle that is self-propelled but does not include a moped.
         2. Vehicle.  Every device for transporting person or property except devices moved by human power.  A bicycle is, however, a vehicle for purposes of §§ 46.2-800, et seq.
         3. Highway.  § 46.2-100.
            1. Test of whether a “way” is a “highway” depends upon the degree to which the “way” is open to the public.  Furman v. Call, 234Va. 437.
            2. Absence of a physical barrier blocking public access does not necessarily demonstrate unrestricted access thus giving rise to presumption of “highway.”  Caplan v. Bogard, 264Va. 219.
            3. Posting restricting public access can defeat “highway” designation.  United States v. Smith, 395 F.3^rd 516 (restricted government facility); White v. City of Lynchburg, No. 0591-99-3 (Ct. of Appeals Feb 15, 2005) (Apartment Complex).
            4. Private property open to the public can be a “highway.”  Furman v. Call, 234 Va. 437 (Condominium Complex); Underwood v. Commonwealth, No. 1805-99-2, 2000Va. App. (Ct. of Appeals June 13, 2000) (Shopping Center).
            5. “Ways” open only by business invitation are not “highways.”  Waldron v. Stephens, 119 F. Supp 1 (Service Station);  Roberts v. Commonwealth, 28 Va. App. 401 (Convenience Store); Edwards v. City of Virginia Beach, No. 2751-00-1 2001Va. App. (Ct. of Appeals Sept. 25, 2001) (Restaurant).

1. Punishment. Conviction  of a first offense under § 46.2-300 is a Class 2 misdemeanor punishable by jail of up to 6 months and a fine of up to $1,000.00.  Conviction of a second or subsequent offense is a class 1 misdemeanor.  Upon conviction under § 46.2-300  the court may suspend a person’s privilege to drive for up to 90 days.

1. Exemption.
   1. Road machinery, farm tractor and farm equipment.  § 46.2-303.
   2. Armed services furnished with driver’s license – must be operating official motor vehicle.  § 46.2-305.
   3. Armed services personnel, spouses and dependent children licensed in another jurisdiction.  § 46.2-306.
   4. Nonresidents licensed in another jurisdiction.  § 46.2-307.
   5. Exemption for new residents.  § 46.2-308.

II. Va. Code § 46.2-301 DRIVING ON A SUSPENDED LICENSE

1. Rule. No resident or non resident (i) whose driver’s license has been suspended, or (ii) who has been directed not to drive by a court or the Commissioner, or (iii) who has been forbidden by operation of a statute of ordinance, shall thereafter drive any motor vehicle or self-propelled machinery (not mopeds) on any highway in the Commonwealth.

1. Elements.
   1. Can be resident or non-resident.
   2. Suspension or revoked.
   3. Drives v. Operates.  In Copeland v. Commonwealth, 96 Vap UNP 0654952, court found no evidence that defendant was driving.
   4. Motor vehicle, self-propelled machinery.
      1. Moped is excluded.
      2. Moped defined in § 46.2-100 as (i) bicycle-like with pedals and helper motor rated no more than two brake horsepower and maximum of 30MPH or (ii) motorcycle with engine displacement of 50 cubic centimeters or less, maximum speed of 30MPH.
      3. Highway.  Prillaman v. Commonwealth, 199 Va. 401; United States v. Adams, 426 F 3^rd 730.
      4. Notice.  Notice is a required element of driving on a suspended license.  See Bibb v. Commonwealth, 212Va.249 (1971).
         1. § 46.2-395.  Clerk’s notice is sufficient.

(i) Provided at time of trial (DC-210).

(ii) Provided by first class mail (DC-225).  If so mailed on date of conviction or within five business days thereafter, it shall be adequate notice of license suspension. Morrisette v. Commonwealth, 00Vap UNP 1648991.

1. Contrast notice by DMV.  In a case where record states, “not accepted by addressee.”  Also see case where DMV sent suspension order to wrong address and therefore Commonwealth may not avail itself of prima facie notice set out in Code. Plummer v. Virginia, 13Va. App. 13
2. Driving record admissible to prove defendant’s license revoked.  Ingram v. Commonwealth, 1 Va. App. 335.  Record admissible under the official records exception to the hearsay rule pursuant to § 46.2-215.  Allen v. Commonwealth. 95 Vap UNP 1469934. The Commonwealth has the burden of proof and the driving record cannot be ambiguous.  Bishop v. Commonwealth, 275 Va. 9, (2008)   

1. Punishment.
   1. Class one misdemeanor.
   2. Third or subsequent in 10 years includes mandatory minimum jail of 10 days.  There is an extreme emergency exception.
   3. Shall suspend for same period for which license or privilege has been previously suspended.  If prior suspension was for an indefinite term the court shall suspend for an additional period not to exceed 90 days.

1. Exception. Va. Code § 46.2-411.1 (b).  Any person who drives a motor vehicle in the Commonwealth after the period of suspension has expired and after all requirements for reinstatement have been satisfied except successful completion of ASAP, shall be guilty of § 46.2-300.

III. Va. Code § 46.2-302. DRIVING WHILE RESTORATION CONTINGENT    UPON FURNISHING PROOF OF FINANCIAL RESPONSIBILITY

1. Elements.
   1. Suspension or revocation.
   2. During a period wherein restoration is contingent upon furnishing proof of financial responsibility.

B. Punishment.

1. First offense is a Class two misdemeanor.
2. Second or subsequent offense is a Class one misdemeanor.
3. No mandatory suspension set out by statute.

1. IV. Va. Code § 18.2-272 DRIVING AFTER FORFEITURE OF LICENSE

1. Elements.
   1. Drive or operate.
   2. Motor vehicle.
   3. In Commonwealth.
   4. Right to drive deprived due to:
      1. Conviction of refusal.  § 18.2-268.3.
      2. DUI.  § 18.2-266/271.
      3. DUI related manslaughter.  § 18.2-36.1
      4. Maiming while under influence.  § 18.2-51.4.
      5. Driving commercial vehicle while intoxicated.  § 46.2-341.24.
      6. Administrative suspension.  § 46.2-391.2.
      7. Certain convictions requiring a one year revocation.  §  46.2-389. (Ex. Perjury regarding registration of a motor vehicle.
      8. Violation of terms of restricted license.
      9. Driving while restricted, suspended or revoked with a BAC of 0.02 or more.

B. Punishment.

1. Class one misdemeanor.
2. Suspend license for one year pursuant to § 46.2-389 (except in manslaughter cases where the suspension is imposed under § 46.2-391(B).