If you have been charged with driving while suspended, it is strongly recommended you appear in Court with a lawyer who regularly appears in traffic court. Unlike a simple speeding ticket that is prepayable, driving while suspended is a misdemeanor that requires your attention. It is a charge that is easily overlooked and one that has serious consequences as a conviction. We offer a Free Consultation to discuss your case. Give us a call at 703-273-4100 or use the contact form below.
What is Driving While Suspended?
Driving While Suspended is a traffic misdemeanor that, unfortunately, is the same Class 1 Misdemeanor as a DWI, Reckless Driving, Assault, Brandishing a Firearm, etc. It is governed by §46.2-301 which dictates that no resident or nonresident may drive on the highways of the Commonwealth who is suspended, revoked, or otherwise forbidden to drive. It is a very common charge that many people find themselves with due to the DMV and court procedures that govern it. It is not a charge that an individual should put to chance and represent themselves hoping that a Judge dismisses or reduces it in court.
It is surprising how many people do not retain a lawyer to represent them in court for their driving while suspended cases. Even more surprising is how often a Judge finds the person guilty, institutes a small fine, leaving the person to believe they did well in court. It is not until later that the person realizes they were convicted of a Class 1 Misdemeanor and are facing additional consequences such as a further license suspension. Additionally, most courts do give jail time to those individuals who are facing a 2nd or subsequent driving while suspended charge.
Driving While Suspended Penalties
Driving While Suspended is a Class 1 Misdemeanor. Consequently, in accordance with §18.2-11 of the Virginia Code, the individual faces a punishment of up to 12 months in jail and a fine of $2500. Additionally, if the charge is a 3rd or subsequent offense, there is an additional 10 days of mandatory jail time to serve. A conviction for driving while suspended will also result in a loss of 6 points on the Virginia driving record and will likewise remain on that record for 11 years. Unfortunately, it will remain as a criminal conviction for a lifetime. Insurance rates, employment issues, and security issues are other complications that may result from a driving while suspended conviction.
Reasons For Driving While Suspended
Court Fines and Costs unpaid
Upon being convicted of an offense, whether it is traffic or criminal related, there are court fines and court costs that must be paid within 30 days from the date of conviction. If the court fines and/or court costs are not paid, DMV is notified and the individual's privilege to drive in Virginia is suspended irrespective of whether they are a Virginia resident. As a result, the individual will be driving while suspended if they drive on a Virginia road during the term of the suspension. The suspension is indefinite until the fines and costs and DMV reinstatement fee are paid.
Demerit Point Accumulation
Excessive point accumulation can result in DMV suspended your privilege to drive in Virginia. Upon conviction for a traffic offense, the court sends an abstract of the conviction to the DMV. The DMV will then post the conviction on your driving record and assign demerit points in accordance with the severity of the offense. If too many demerit points are assigned to an individual's driving record within a short period of time, the DMV will first put the individual on probation followed by a license suspension if more demerit points are accumulated during that probationary period. Consequently, the individual will be operating on a suspended license if they drive following the suspension.
Additional reasons for Driving While Suspended (including but no limited to):
Failing to to properly insure and maintain insurance coverage or pay the required uninsured motor vehicle fee
Failing to complete a driver improvement clinic (as required by DMV)
Failing to pay child support
Physical and/or mental conditions that impair the individual's ability to safely drive
DWI and Drug Convictions
Prior suspension for driving while suspended
Helping your Driving While Suspended case
Defenses to Driving While Suspended
Notice – In accordance with Bibb v. Commonwealth, 212 Va. 249 (Va., 1971) and its progeny, the Commonwealth must prove that the individual accused of driving while suspended received “actual notice” of the suspension. For example, if an individual is suspended due to a failure to pay court fines but never went to that court date where the fines were handed down, they are not on notice of having to pay those fines or risk being suspended. As a result, they are driving while suspended without knowing they are suspended.
Emergency – While driving due to an emergency is not an affirmative defense to the charge (i.e. won't make the charge necessarily go away), §46.2-301 says that the court shall not be required to impose any mandatory jail time.
Enhanced Penalties – When there is a charge of driving while suspended as a 3rd or subsequent offense, a 10 day mandatory jail sentence is required by statute. However, case law dictates that the court may not use the enhanced penalty provision of the statute unless the Commonwealth proves the individual was either represented by a lawyer in the prior two charges or waived a lawyer.
Get your license back prior to court! Show the Judge and they may reduce or dismiss the charge. Note: The court may but is not required to.
If you cannot get your license back prior to court, get in good standing with DMV. Be sure all court fines and costs are paid up and try to get yourself in the position of no longer being suspended. Get a copy of your DMV Compliance Summary. This document will tell you what you need to do to be in good standing with DMV.
Driving While Suspended Outcomes
If the Commonwealth cannot prove notice, the charge should be dismissed by the court.
If the individual has obtained their license back from suspension and is in good standing with DMV, the court may dismiss the charge.
The court may also reduce the charge to the lesser offense of failing to possess their driver's license under §46.2-104. This result is preferable as it is considered a non-moving violation and is a $10 fine.
If the court finds you guilty of driving while suspended and gives you a fine, be sure it did not also suspend your privilege to drive. The statute requires that the court suspend the individual's privilege to drive for the same period for which it had been previously suspended or revoked or for 90 days if the current suspension period has no definite ending date. Note that many Judges will suspend an individual's privilege to drive in Virginia for 90 days if they convict the individual of driving while suspended.
What will happen in Court?
If you are represented by a lawyer, your court appearance will be different than those without a lawyer. For example, in Fairfax County, your lawyer will “pass the case” which means the Judge will not call your name during the docket. Instead, your file will be on the prosecutor's desk and the Judge will only call those individuals representing themselves pro se. The prosecutor will then speak with the officer's, witnesses, and victims, if any, of those cases where the Defendant is represented by a lawyer. Once the prosecutor has done so, your lawyer will then have an opportunity to speak with the prosecutor to get discovery (essentially, what their evidence is). During that time, your lawyer will also attempt work out a favorable resolution for your case. This is the time in which your lawyer will present mitigating evidence to the prosecutor, such as your newly “unsuspended driver's license,” your driving record reflecting you did not receive actual notice of the suspension, etc.
Once your lawyer has spoken to the prosecutor, they will come get you from the courtroom and you will discuss the plea offer that has been made. Some prosecutors are more lenient than others and offer better plea bargains than others. In the event you are offered a plea bargain that does not suit your expectations, your lawyer will have one of two options: (i) ask the court to continue the case to the officer's next traffic date (they're preset), or (ii) go to trial.
In Fairfax County, Prince William County, and Loudoun County, they have trial advisement and plea forms that must be signed in the event you and lawyer have worked out a plea bargain with the prosecutor. The plea form will set forth the charge and the agreement. The client must read the form carefully and ask their lawyer any questions before signing it. In driving while suspended cases, generally, it's fairly straight forward. Presumably, a good deal would be a dismissal as complied (i.e. the person got their license back), reduction from driving while suspended to driving without a valid operator's license, or some other minor traffic infraction, with a fine. If signed and agreed, your lawyer would then hand up the plea form to the Judge for them to execute the plea agreement. At that point, the Judge is merely a scrivener of sorts and incorporates the plea agreement in the file. In driving while suspended cases, the presiding Judge will typically “strike” the driving while suspended charge by crossing it out on the summons or warrant and insert whatever reduced charge has been worked out if the charge is not dismissed outright. The clerk will then update the Virginia Case Information System accordingly.
We always recommend people appear in court with a lawyer. At the Letnick Law Firm, we have had the privilege of hearing our clients say how much easier we made it for them when they hired us as their lawyer. They don't have to say anything to the officer or Judge and they know they have an experienced lawyer working for them.
Do you need to go to Court for your Driving While Suspended charge?
In certain driving while suspended cases, your lawyer can appear on your behalf for court. Unlike simple speeding cases and some reckless driving cases, this waiver of appearance for driving while suspended depends heavily on your prior record. Certainly, even if you're technically guilty of the offense, with no other record and a restored license, the lawyers at Letnick Law Firm can appear on the client's behalf as we've done dozens of times. In the event we go to Court and it turns out we need the client present to resolve the case, we will simply continue (move) the case to another day for the client's appearance at that later date. This method saves valuable time for the client and keeps the dockets lighter for the Judges in court. In addition, we have not had it negatively affect the outcome of the case. At the conclusion of the case, we contact the client letting them know the result and the fines and court costs, if any.
Your Free Initial Consultation
We offer a no obligation Free Initial Consultation to discuss your driving while suspended case. You can either come in for an in-office appointment or do a telephone conference. We will talk about the facts of your case, whether any mitigating evidence is necessary, the price for the representation, and the next steps. While each case is different, our fees are reasonable. We like being in court and enjoy helping people. We can help you too.
Finding the Best Driving While Suspended Lawyer is vitally important to your case. There are thousands of lawyers in the Northern Virginia area but only a handful can properly handle your case. You will want a lawyer who regularly appears in traffic court.
Certainly, you would not want to hire a civil lawyer to handle your traffic case. Traffic lawyers are generally in court everyday and appear in front of the same judges and prosecutors on a consistent basis. This relationship with the court is not established when an attorney appears in court once a month.
The best way to find the best lawyer for your case is to do your research and meet with the lawyers you're considering. Make sure they answer all of your questions and make sure that they consistently represent people on such cases. Driving While Suspended is a serious traffic misdemeanor and the case should be handled by a competent attorney.