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What are the Habitual Offender Statutes and What Do They Mean?

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What are the habitual offender statutes and what do they mean?

I. VA Code Ann. § 46.2-355.1

A. Upon receiving notification of a second conviction entered on or after July 1, 1999, for driving while the offender’s license, permit or privilege to drive is suspended or revoked in violation of § 46.2-301, the Commissioner shall notify such person that he shall report to a Virginia Alcohol Safety Action Program within sixty days of the date of such notice for intervention. Intervention shall be in accordance with § 18.2-271.1. The program shall provide the Commissioner with information of the offender’s compliance.

B. An interview shall be conducted by a representative of a Virginia Alcohol Safety Action Program. The representative shall review all applicable laws with the person attending the interview, provide guidance with respect to budgeting for payment of court fines and costs, if applicable, and explain the laws and the consequences of future offenses and may refer the person to any driver improvement clinic. A fee of thirty dollars shall be paid to the Virginia Alcohol Safety Action Program for attendance at a driver intervention interview. All fees collected by a Virginia Alcohol Safety Action Program shall be used to meet its expenses.

C. The Commissioner shall suspend the driving privilege of any person who fails to complete and pay the required fee for an intervention interview within the sixty-day period. The suspension shall continue until such time as the person has completed and paid for the intervention interview.

D. Notice to report for intervention shall be sent by the Department by certified mail, return receipt requested, to the driver at the last known address supplied by the driver and on file with the Department.

E. Failure of the offender to attend as required or failure of the Department to notify the offender upon the second offense shall not prevent conviction for any subsequent offense committed in violation of § 46.2-301.

II. VA Code Ann. § 46.2-356

No license to drive motor vehicles in Virginia shall be issued to any person determined or adjudicated an habitual offender (i) for a period of ten years from the date of any final order of a court entered under this article or if no such order was entered then the notice of the determination by the Commissioner finding the person to be an habitual offender and (ii) until the privilege of the person to drive a motor vehicle in the Commonwealth has been restored by an order of a court entered in a proceeding as provided in this article.

III. VA Code Ann. § 46.2-357

1. It shall be unlawful for any person determined or adjudicated a habitual offender to drive any motor vehicle or self-propelled machinery or equipment on the highways of the Commonwealth while the revocation of the person’s driving privilege remains in effect. However, the revocation determination shall not prohibit the person from operating any farm tractor on the highways when it is necessary to move the tractor from one tract of land used for agricultural purposes to another tract of land used for agricultural purposes, provided that the distance between the said tracts of land is no more than five miles.

A.  Except as provided in subsection D, any person found to be a habitual offender under this article, who is thereafter convicted of driving a motor vehicle or self-propelled machinery or equipment in the Commonwealth while the revocation determination is in effect, shall be punished as follows:

2. If such driving does not of itself endanger the life, limb, or property of another, such person shall be guilty of a Class 1 misdemeanor punishable by a mandatory minimum term of confinement in jail of 10 days except in cases wherein such operation is necessitated in situations of apparent extreme emergency that require such operation to save life or limb, the sentence, or any part thereof, may be suspended.

3. If such driving of itself endangers the life, limb, or property of another or takes place while such person is in violation of §§ 18.2-36.1, 18.2-51.4, 18.2-266 or § 46.2-341.24, irrespective of whether the driving of itself endangers the life, limb or property of another and the person has been previously convicted of a violation of §§ 18.2-36.1, 18.2-51.4, 18.2-266 or § 46.2-341.24, such person shall be guilty of a felony punishable by confinement in a state correctional 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 the discretion of the jury or the court trying the case without a jury, by mandatory minimum confinement in jail for a period of 12 months. However, in cases wherein such operation is necessitated in situations of apparent extreme emergency that require such operation to save life or limb, the sentence, or any part thereof, may be suspended. For the purposes of this section, an offense in violation of a valid local ordinance, or law of any other jurisdiction, which ordinance or law is substantially similar to any provision of law herein shall be considered an offense in violation of such provision of law.

4. If the offense of driving while a determination as an habitual offender is in effect is a second or subsequent such offense, such person shall be punished as provided in subdivision 2 of this subsection, irrespective of whether the offense, of itself, endangers the life, limb, or property of another.

A. For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle or self-propelled machinery or equipment while his license, permit, or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing the charge shall determine whether the person has been determined an habitual offender and, by reason of this determination, is barred from driving a motor vehicle or self-propelled machinery or equipment on the highways in the Commonwealth. If the court determines the accused has been determined to be a habitual offender and finds there is probable cause that the alleged offense under this section is a felony, it shall certify the case to the circuit court of its jurisdiction for trial.

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

IV. VA Code Ann. § 46.2-358

In any case where the provisions of § 46.2-360 or § 46.2-361 do not apply, five years from the date of any final order of a court entered under this article, or if no such order was entered then the notice of the determination by the Commissioner finding a person to be an habitual offender and revoking his privilege to drive a motor vehicle in the Commonwealth, the person may petition the court in which he was found to be an habitual offender, or any court of record in Virginia having criminal jurisdiction in the political subdivision in which he then resides, for restoration of his privilege to drive a motor vehicle in the Commonwealth. On such petition, and for good cause shown, the court may, upon a finding that such person does not constitute a threat to the safety and welfare of himself or others with regard to the driving of a motor vehicle, (i) restore to the person the privilege to drive a motor vehicle in the Commonwealth on whatever conditions the court may prescribe or (ii) order that the person be issued a restricted license to drive a motor vehicle in the Commonwealth for any of the purposes set forth in and in accordance with the procedures of subsection E of § 18.2-271.1, subject to other provisions of law relating to the issuance of driver’s licenses.

V. VA Code Ann. § 46.2-359

Any person eighteen years of age or older who has been adjudged an habitual offender based in whole or in part on findings of not innocent as a juvenile may petition the court in which he was found to be an habitual offender, or any circuit court in Virginia having criminal jurisdiction in the political subdivision in which the person now resides, for restoration of his privilege to operate a motor vehicle in the Commonwealth. On such petition, and for good cause shown, the court may, in its discretion, restore to him the privilege to drive a motor vehicle in the Commonwealth on whatever conditions the court may prescribe, subject to other provisions of law relating to the issuance of driver’s licenses.

VI. VA Code Ann. § 46.2-360

Any person who has been found to be an habitual offender where the determination or adjudication was based in part and dependent on a conviction as set out in subdivision 1 b of former § 46.2-351, may petition the court in which he was found to be an habitual offender, or the circuit court in the political subdivision in which he then resides to:

1. Restore his privilege to drive a motor vehicle in the Commonwealth, provided that five years have elapsed from the date of the final order of a court entered under this article, or if no such order was entered then the notice of the determination by the Commissioner. On such petition, and for good cause shown, the court may, in its discretion, restore to the person the privilege to drive a motor vehicle in the Commonwealth on whatever conditions the court may prescribe, subject to other provisions of law relating to the issuance of driver’s licenses, if the court is satisfied from the evidence presented that: (i) at the time of the previous convictions, the petitioner was addicted to or psychologically dependent on the use of alcohol or other drugs; (ii) at the time of the hearing on the petition, he is no longer addicted to or psychologically dependent on the use of alcohol or such other drug; and (iii) the person does not constitute a threat to the safety and welfare of himself or others with regard to the driving of a motor vehicle. However, prior to acting on the petition, the court shall order that an evaluation of the person be conducted by a Virginia Alcohol Safety Action Program and recommendations therefrom be submitted to the court. 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 exceed five years in accordance with the provisions of subsection E of § 18.2-271.1. The local Virginia Alcohol Safety Action Program shall during the term of the restricted license monitor the person’s compliance with the terms of the restrictions imposed by the court. Any violation of the restrictions shall be reported to the court, and the court may then modify the restrictions or revoke the license.

2. Issue a restricted permit to authorize such person to drive a motor vehicle in the Commonwealth in the course of his employment, to and from his home to the place of his employment or such other medically necessary travel as the court deems necessary and proper upon written verification of need by a licensed physician, provided that three years have elapsed from the date of the final order, or if no such order was entered then the notice of the determination by the Commissioner. The court may order that a restricted license for such purposes be issued in accordance with the procedures of subsection E of § 18.2-271.1, if the court is satisfied from the evidence presented that (i) at the time of the previous convictions, the petitioner was addicted to or psychologically dependent on the use of alcohol or other drugs, (ii) at the time of the hearing on the petition, he is no longer addicted to or psychologically dependent on the use of alcohol or such other drugs, and (iii) the defendant does not constitute a threat to the safety and welfare of himself and others with regard to the driving of a motor vehicle. The court may prohibit the person to whom a restricted license is issued from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system during all or any part of the term for which the restricted license is issued, in accordance with the provisions set forth in § 18.2-270.1. However, prior to acting on the petition, the court shall order that an evaluation of the person be conducted by a Virginia Alcohol Safety Action Program and recommendations therefrom be submitted to the court. The local Virginia Alcohol Safety Action Program shall during the term of the restricted license monitor the person’s compliance with the terms of the restrictions imposed by the court. Any violation of the restrictions shall be reported to the court, and the court may then modify the restrictions or revoke the license.

In the computation of the five-year and three-year periods under subdivisions 1 and 2 of this section, such person shall be given credit for any period his driver’s license was administratively revoked under subsection B of § 46.2-391 prior to the final order or notification by the Commissioner of the habitual offender determination.

A copy of any petition filed hereunder shall be served on the attorney for the Commonwealth for the jurisdiction wherein the petition was filed, and shall also be served on the Commissioner of the Department of Motor Vehicles, who shall provide to the attorney for the Commonwealth a certified copy of the petitioner’s driving record. The Commissioner shall also advise the attorney for the Commonwealth whether there is anything in the records maintained by the Department that might make the petitioner ineligible for restoration, and may also provide notice of any potential ineligibility to the Attorney General’s Office, which may join in representing the interests of the Commonwealth where it appears that the petitioner is not eligible for restoration. The hearing on a petition filed pursuant to this article shall not be set for a date sooner than thirty days after the petition is filed and served as provided herein.

VII. VA Code Ann. § 46.2-361

A. Any person who has been found to be an habitual offender, where the determination or adjudication was based in part and dependent on a conviction as set out in subdivision 1 c of former § 46.2-351, may, after three years from the date of the final order of a court entered under this article, or if no such order was entered then the notice of the determination or adjudication by the Commissioner, petition the court in which he was found to be an habitual offender, or the circuit court in the political subdivision in which he then resides, for restoration of his privilege to drive a motor vehicle in the Commonwealth. In no event, however, shall the provisions of this subsection apply when such person’s determination or adjudication was also based in part and dependent on a conviction as set out in subdivision 1 b of former § 46.2-351. In such case license restoration shall be in compliance with the provisions of § 46.2-360 .

B. Any person who has been found to be an habitual offender, where the determination or adjudication was based entirely upon a combination of convictions of § 46.2-707 and convictions as set out in subdivision 1 c of former § 46.2-351, may, after payment in full of all outstanding fines, costs and judgments relating to his determination, and furnishing proof of (i) financial responsibility and (ii) compliance with the provisions of Article 8 (§ 46.2-705 et seq.) of Chapter 6 of this title or both, if applicable, petition the court in which he was found to be an habitual offender, or the circuit court in the political subdivision in which he then resides, for restoration of his privilege to drive a motor vehicle in the Commonwealth.

C. This section shall apply only where the conviction or convictions as set out in subdivision 1 c of former § 46.2-351 resulted from a suspension or revocation ordered pursuant to (i) § 46.2-395 for failure to pay fines and costs, (ii) § 46.2-459 for failure to furnish proof of financial responsibility, or (iii) § 46.2-417 for failure to satisfy a judgment, provided the judgment has been paid in full prior to the time of filing the petition or was a conviction under § 46.2-302 or former § 46.1-351.

D. On any such petition, the court, in its discretion, may restore to the person his privilege to drive a motor vehicle, on whatever conditions the court may prescribe, if the court is satisfied from the evidence presented that the petitioner does not constitute a threat to the safety and welfare of himself or others with respect to the operation of a motor vehicle, and that he has satisfied in full all outstanding court costs, court fines and judgments relating to determination as an habitual offender and furnished proof of financial responsibility, if applicable.

E. A copy of any petition filed hereunder shall be served on the attorney for the Commonwealth for the jurisdiction wherein the petition was filed, and shall also be served on the Commissioner of the Department of Motor Vehicles, who shall provide to the attorney for the Commonwealth a certified copy of the petitioner’s driving record. The Commissioner shall also advise the attorney for the Commonwealth whether there is anything in the records maintained by the Department that might make the petitioner ineligible for restoration, and may also provide notice of any potential ineligibility to the Attorney General’s Office, which may join in representing the interests of the Commonwealth where it appears that the petitioner is not eligible for restoration. The hearing on a petition filed pursuant to this article shall not be set for a date sooner than thirty days after the petition is filed and served as provided herein.

VIII. VA Code Ann. § 46.2-362

An appeal to the circuit court may be taken from any final action or order of the general district court under former § 46.2-355 in the same manner and form as provided in §§ 16.1-106 and 16.1-107. An appeal to the Court of Appeals may be taken from any final action or order of a circuit court entered under this article in the same manner and form as such an appeal would be taken in any criminal case.

What do the statutes mean?

After an individual  was declared a habitual offender, he cannot drive until his license is reinstated.  If he does drive, he generally faces a Class 1 misdemeanor involving up to 12 months in jail and up to a $2,500.00 fine on a first offense if such driving does not endanger the life limb or property of another.  Additionally, the driver faces a mandatory period of 10 days in jail.

A second or subsequent offense or a first offense where such driving does endanger the life, limb, or property of another the driver faces  a felony and confinement in a state correctional facility for not less than one year or more than five years, one year which is mandatory , or in the discretion of the judge or jury, jail for a period of 12 months.

A habitual offender must generally petition a Circuit Court for restoration of his privilege to drive.

If you have questions, please contact the trial tested Norfolk traffic lawyer, Anthony L. Montagna, III, at 757-625-3500.




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