The Administrative License Suspension (ALS): the license suspension before your trial
In most cases, your ability to drive after a DUI arrest will be affected even though you have not been convicted of anything. If you have a Virginia license, you will not be able to legally drive during the suspension anywhere; if you have an out-of-state license, you will not be able to drive within the borders of Virginia.
Why did they take my license before trial?
The administrative license suspension applies to you if you are an:
1) adult whose breath test at the station or jail (not the one by the car) is 0.08 or higher,
2) underage drinkers whose breath test at the station or jail (not the one by the car) is 0.02 or higher,
3) person who is charged with Refusal to take a breath or blood test.
The officer did not take my license even though I was charged with a DWI. Why not?
The suspension usually does not apply to:
1) a person that submitted to an emergency room blood test that is not sent to the Department of Forensic Science for analysis. (The emergency room blood test is performed on just the blood serum or plasma – not whole blood – so the result will be artificially high. We used to call it a “quick and dirty” test at Trauma because it is not very accurate, but it was quick.)
2) a person that submitted to a blood test that is sent to the Department of Forensic Science because this blood test result will usually take months to get back.
3) a person that was just driving in a parking lot or on private property. The implied consent law for breath and blood tests only applies to driving or operating (sitting in the driver’s seat with the key in the ignition) a motor vehicle on a highway or road in Virginia. The police cannot demand a breath or blood test in these cases.
How long until I can drive again?
The period of suspension depends upon what you are charged with
1) DUI 1st: 7 days
2) DUI 2nd: 60 days or until trial (whichever occurs first)
3) DUI 3rd or subsequent: until trial
Can I get permission to drive to work during the Administrative License Suspension (ALS)?
No. Virginia does not allow a restricted license during the ALS.
Can I get the suspension reversed?
Possibly! No matter what you read on the web, Virginia does not have DMV (Department of Motor Vehicle) hearings like some other states. ALS hearings are heard in General District Court.
As a practical matter, its hard to challenge probable cause in a DWI 1st because by the time you hire an attorney and get a court date the 7 days is over.
It’s a different story with a DUI 2nd or subsequent. Administrative License Suspension hearings are successful if we can show a lack of (1) reasonable suspicion for the stop, (2) probable cause for the arrest, (3) probable cause for the magistrate to issue a warrant, or (4) probable cause for charging it as a DWI 2nd or 3rd. In any of these cases, your license will be restored before trial.
How do I get my license back? Where do I get my license back?
If you have a Virginia license, the arresting officer will confiscate your license and give it to the magistrate. The magistrate forwards it to the Clerk of the General District Court. If you have an out of state license, the officer should not take your license, but you will still not be able to drive within Virginia.
After the suspension is over, you can pick your license up from the Clerk’s office at the court. If you don’t pick it up, the Clerk will mail it out to your address.
HOPEFULLY HELPFUL HINT: It’s usually much quicker to pick your license up. You cannot drive in Virginia unless you have the hard copy of your license with you.
Will I have restrictions on my driving after the Administrative License Suspension is over?
No. You can drive like you did before your DUI arrest.
Wrong on the web:
#1: “A first offense DUI arrest results in administrative license suspension of one year.”
Wrong! The webmaster here is confusing the Administrative License Suspension that only occurs before your trail with a one year license revocation that will occur after conviction for a DUI 1st. The Administrative License Suspension for a first driving under the influence first offense is 7 days.
#2: “Virginia Administrative Drivers License Hearing
“Important: You only have 10 days from the date of your arrest in which to request an administrative hearing if you wish to save your driver’s license … At the administrative license hearing the Administrative Law Judge (ALJ) who has been assigned to hear your case will look at the evidence against you …”
Wrong! A General District Court judge will hear your motion in General District Court – not an “Administrative Law Judge” in a DMV court. Also, as long as your license is administratively suspended, you can ask a judge to review reasonable suspicion and probable cause. There is no 10 day limit.
What the law says:
Virginia Code § 46.2-391.2. Administrative suspension of license or privilege to operate a motor vehicle
A. If a breath test is taken pursuant to § 18.2-268.2 or any similar ordinance and (i) the results show a blood alcohol content of 0.08 percent or more 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 alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath or (iii) the person refuses to submit to the breath test in violation of § 18.2-268.3 or any similar ordinance, and upon issuance of a petition or summons, or upon issuance of a warrant by the magistrate, for a violation of § 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar ordinance, or upon the issuance of a warrant or summons by the magistrate or by the arresting officer at a medical facility for a violation of § 18.2-268.3, or any similar ordinance, the person’s license shall be suspended immediately or in the case of (i) an unlicensed person, (ii) a person whose license is otherwise suspended or revoked, or (iii) a person whose driver’s license is from a jurisdiction other than the Commonwealth, such person’s privilege to operate a motor vehicle in the Commonwealth shall be suspended immediately. The period of suspension of the person’s license or privilege to drive shall be seven days, unless the petition, summons or warrant issued charges the person with a second or subsequent offense. If the person 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 and time 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 the suspension. If the person is charged with a third or subsequent offense, the suspension shall be until the day and time of trial of the offense charged on the petition, summons or warrant.
A law-enforcement officer, acting on behalf of the Commonwealth, shall serve a notice of suspension personally on the arrested person. When notice is served, the arresting officer shall promptly take possession of any driver’s license held by the person and issued by the Commonwealth and shall promptly deliver it to the magistrate. Any driver’s license taken into possession under this section shall be forwarded promptly by the magistrate to the clerk of the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made together with any petition, summons or warrant, the results of the breath test, if any, and the report required by subsection B. A copy of the notice of suspension shall be forwarded forthwith to both (a) the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made and (b) the Commissioner. Transmission of this information may be made by electronic means.
The clerk shall promptly return the suspended license to the person at the expiration of the suspension. Whenever a suspended license is to be returned under this section or § 46.2-391.4, the person may elect to have the license returned in person at the clerk’s office or by mail to the address on the person’s license or to such other address as he may request.
B. Promptly after arrest and service of the notice of suspension, the arresting officer shall forward to the magistrate a sworn report of the arrest that shall include (i) information which adequately identifies the person arrested and (ii) a statement setting forth the arresting officer’s grounds for belief that the person violated § 18.2-51.4, 18.2-266, or 18.2-266.1, or a similar ordinance or refused to submit to a breath test in violation of § 18.2-268.3 or a similar ordinance. The report required by this subsection shall be submitted on forms supplied by the Supreme Court.
C. Any person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period of the suspension, request the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made to review that suspension. The court shall review the suspension within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition, the court shall rescind the suspension, or that portion of it that exceeds seven days if there was not probable cause to charge a second offense or 60 days if there was not probable cause to charge a third or subsequent offense, and the clerk of the court shall forthwith, or at the expiration of the reduced suspension time, (i) return the suspended license, if any, to the person unless the license has been otherwise suspended or revoked, (ii) deliver to the person a notice that the suspension under § 46.2-391.2 has been rescinded or reduced, and (iii) forward to the Commissioner a copy of the notice that the suspension under § 46.2-391.2 has been rescinded or reduced. Otherwise, the court shall affirm the suspension. If the person requesting the review fails to appear without just cause, his right to review shall be waived.
The court’s findings are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.
D. If a person whose license or privilege to operate a motor vehicle is suspended 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 suspension imposed by subsection A, and if the court decides to issue the person a restricted permit under subsection E of § 18.2-271.1, such restricted permit shall not be issued to the person before the expiration of the first seven days of the suspension imposed under subsection A.