Wednesday, August 27, 2014

Virginia Driver's License with a New York DWI = Double Penalties

Lately I have had a number of New York clients with VA (Virginia) driver's licenses. Every state is different as to license penalties but to represent them completely I always turn to my out-of-state comrades. My VA DUI attorney friends gave me the low down of what they will be facing back in Virginia.


= PAIN X 2

#1 It is Legal to be Given Administrative Penalties in Two States

In this case, they must deal with both NYS DMV, and the VA DMV. They will have consequences and hoops to jump through to clear license issues in both jurisdictions. My job is to see if I can get them some reciprocity, eliminate redundancy, and to ensure that punishments to licensure are minimized. Even though these people do not have a NYS driver's license they hold (or held) NYS privileges while driving in NYS, and will now face NYS DMV sanctions.

#2 It is Customary to be Given Administrative Penalties in Two States

Few states do not have penalties for out-of-state of DWI/DUI/OUI/OWI (the number of different acronyms is staggering). I can only name one state currently that has NO out-of-state administrative penalties, drumroll please,,,,,, Pennsylvania. I love PA for a number of reasons, I was first licensed and practiced as an attorney there, and their DMV policy is very generous.

Virginia License Consequences

A Virginia-licensed client will be suspended in Virginia for 12 months on a first offense, and he/she may apply to the district court in his/her resident jurisdiction for restricted privileges (license) with a mandatory interlock for at least 6 months of that period, and be required to attend Virginia ASAP as a condition of any such restricted license

VASAP has many different programs. Some are public, and some are private. When I researched their offerings I was amazed with the number of choices for Virginia residents. Their traditional first offender program is around 20 hours (similar to ours), which is 15 hours. They allow people to proceed with many of the programs on their own schedules. This flexibility coupled with a plethora of options makes finding help and receiving it much easier than in NYS. 

If the BAC was below 0.15, your client will be eligible for a restricted license, but will have to go into the General District Court in his/her county and request one.  

If the BAC was 0.15 or more, it will depend on the judge.  While the driver is technically eligible for the restricted license right away, most Virginia judges will not grant one to a 0.15+ driver for four months.

The (special conditional) license is restricted to:

(i) travel to and from his place of employment; (ii) travel to and from an alcohol rehabilitation or safety action program; (iii) travel during the hours of such person's employment if the operation of a motor vehicle is a necessary incident of such employment; (iv) travel to and from school if such person is a student, upon proper written verification to the court that such person is enrolled in a continuing program of education; (v) travel for health care services, including medically necessary transportation of an elderly parent or, as designated by the court, any person residing in the person's household with a serious medical problem upon written verification of need by a licensed health professional; (vi) travel necessary to transport a minor child under the care of such person to and from school, day care, and facilities housing medical service providers; (vii) travel to and from court-ordered visitation with a child of such person; (viii) travel to a screening, evaluation and education program entered pursuant to  18.2-251 or subsection H of  18.2-258.1; (ix) travel to and from court appearances in which he is a subpoenaed witness or a party and appointments with his probation officer and to and from any programs required by the court or as a condition of probation; (x) travel to and from a place of religious worship one day per week at a specified time and place; (xi) travel to and from appointments approved by the Division of Child Support Enforcement of the Department of Social Services as a requirement of participation in a court-ordered intensive case monitoring program for child support for which the participant maintains written proof of the appointment, including written proof of the date and time of the appointment, on his person; (xii) travel to and from jail to serve a sentence when such person has been convicted and sentenced to confinement in jail and pursuant to  53.1-131.1 the time to be served is on weekends or nonconsecutive days; or (xiii) travel to and from the facility that installed or monitors the ignition interlock in the person's vehicle.

NOTE: I find it unusual that VA allows travel for religious worship. NYS has no such provision in our statutes. VA residents may think us heathens.

1. Many jurisdictions in Virginia require the individual to have a letter from their employer, setting out the need to drive for work purposes, and a letter from medical personnel regarding medically necessary transportation of an elderly parent, or other person residing in the applicant’s household. 

2. They will also need a current (within 2 weeks) copy of their Virginia DMV record, and a compliance report from DMV, showing that they are “otherwise qualified” for restricted privileges.  

3. I would also recommend bringing a certified copy of the NYS disposition, showing that he/she was deemed eligible for restricted privileges with an interlock by the convicting court.

NYS attorneys take note of this prior to sentencing although most NYS courts will provide the interlock order which should suffice here.

Some VA administrative (license) consequences, like the ignition interlock will overlap with the NYS consequences. In place of the NYS DDP most judges will allow the out-of-state VASAP program attendance or an equivalent. 

I thank Corinne J. Magee for all this VA license information and guidance. Corinne is a fellow member of the NCDD (National College of DUI Defense), and an excellent DUI attorney.

The Magee Law Firm, PLLC
6845 Elm Street, Suite 205
McLean, VA 22101-3822
facsimile: 703-356-6863

Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Reviews of Larry Newman:

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers