Oct 10, 2020 DWI and Virginia restricted driving- Fairfax DUI lawyer comments
DWI first offenses- For pre-July 1, 2020, Virginia sentences, you may wish to return to court, says Fairfax DUI lawyer
DWI first offense convictions in Virginia now enable driving anywhere during the one-year license suspension period with the alcohol ignition interlock device (“IID”). As a Fairfax DUI lawyer, I know that this option is available only so long as the conviction was not for a blood alcohol content (“BAC”) result of 0.15 or higher, and the driving suspension period at least partly overlaps a time period beyond July 1, 2020.
What does Virginia DUI law say about driving anywhere with the alcohol ignition interlock during the one year driving suspension period?
A Virginia DUI / driving under the influence of alcohol and/or drugs conviction under Va. Code § 18.2-266 “shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth for a period of one year from the date of such judgment.” Va. Code § 18.2-271(A). For such Virginia DWI convictions, “the court may, in its discretion and for good cause shown, provide that such person be issued a restricted permit to operate a motor vehicle for any of the following purposes: (i) travel to and from his place of employment, …” Va. Code § 18.2-271.1(E).
Effective July 1, 2020, once the trial court grants a restricted license, upon the motion of an adult Virginia DUI defendant convicted for a first-time DWI offense not with a BAC of 0.15 or over, “the only restriction of a restricted license that the court shall impose is to prohibit the offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for not less than 12 consecutive months without alcohol-related violations of the interlock requirements. ” Va. Code § 18.2-270.1(C).
Fairfax DUI lawyer on how to handle judicial questions about retroactivity of Virginia’s new DWI restricted driving law
As a Fairfax DUI lawyer, I have returned to court with some clients sentenced for DWI before the above-discussed July 1, 2020, law change concerning the alcohol IID, usually convincing the judge to grant the option to drive anywhere at any time, with the alcohol interlock device being the only limitation, for first time Virginia DUI offenses with BAC’s not 0.15 or higher. Sometimes the judge asks if this law change is retroactive versus prospective. I respond that the applicable statutory language, read as a whole, permits a convictred Virginia DUI defendant at any time during the pendency of his or her Virginia DUI-related license suspension to make such a motion, which, the Court shall grant. Va. Code § 18.2-270.1(C).
If the trial judge asks me whether said motion only can be made at the time the original restricted operator license (“ROL”) application is submitted, I say “no”, in that the statutor language does not impose such a limitation, and an updated ROL application can be submitted by motion at any time during the ROL period, for such purposes as updating one’s home and work address and other data listed therein. In fact, as a Fairfax DWI lawyer, I know that the Fairfax County General District Court judges ordinarily require a hearing for making such changes to the ROL rather than to simply deal with VASAP for making such a change.
When the court grants my motion for the interlock to be my only Virginia DUI conviction driving restriction, does the twelve-month IID usage period begin anew? No
The Virginia DWI statutory provision for driving only with the interlock provides for the IID operation to be “not less than 12 consecutive months without alcohol-related violations of the interlock requirements.” With twelve months being the restricted driving period for a first-time Virginia DUI conviction, reasonbly read, this means that the trial judge may not impose an IID requirement to last for longer than twelve months absent any alleged violation of the IID program. Moreover, with pre-July 1, 2020, IID and ROL requirements being at least as restrictive as the requirements for driving only with the IID for twelve months, credit needs to be given for every uninterrupted day that the IID has been installed in the Virginia DUI defendant’s vehicle, including for the pre-July 1, 2020, time period.
Do I still have the option to seek to drive for only six months with the ignition interlock device for my Virginia DUI conviction? Yes
The above-discussed Va. Code § 18.2-270.1(C) puts the Virginia DWI defendant in the driver’s seat to choose between one year of the IID as the only driving restriction, or to have more restricted driving restrictions in exchange for the option to applying to drive for not more than six months with the IID. Va. Code § 18.2-271.1(D).
Fairfax DUI lawyer Jonathan L. Katz pursues your best defense against Virginia DWI, misdemeanor and felony prosecutions. Call 703-383-1100 to schedule a free in-person confidential consultation with Jon Katz about your court-pending case.