Habitual Offenders
Driving after being declared an habitual offender in Virginia is a crime under Va. Code §46.2-357. It can be a misdemeanor or a felony depending on if the offender drove recklessly, was charged with an alcohol-related offense, or had prior convictions for driving on a revoked license after being declared an habitual offender in Virginia. Driving after being declared an habitual offender in Virginia is one of the most serious traffic offenses and is punished very severely.
What Is An Habitual Offender in Virginia?
Until 1999, drivers could be declared “habitual offenders” in Virginia if they were convicted of 3 serious traffic offenses within a 10 year period. Anyone declared an habitual offender in Virginia had his driving privileges revoked for 10 years, and an habitual offender in Virginia is prohibited from driving until he has had his privilege to drive restored by court order (Va. Code §46.2-356).
For more information on restoration of driving privileges for an habitual offender in Virginia, click here.
For more information on habitual offender laws in Virginia, click here.
Driving After Being Declared An Habitual Offender in Virginia
Virginia stopped declaring drivers habitual offenders in 1999, but anyone who was declared an habitual offender in Virginia at that time still remained revoked until he had his driving privileges reinstated. This means that there are still some drivers who are considered habitual offenders in Virginia if they have not had their driving privileges restored. If these habitual offenders drive a motor vehicle while revoked, even if they have a restricted driver’s license, they have committed a crime under Va. Code §46.2-357.
For more information on how an habitual offender in Virginia can obtain a restricted license, click here.
Proof of Driving After Being Declared An Habitual Offender in Virginia
To convict an offender of driving after being declared an habitual offender in Virginia under Va. Code §46.2-357, the Commonwealth must prove that the offender:
has been declared an habitual offender in Virginia- had knowledge that he had been declared an habitual offender in Virginia
- drove a motor vehicle
- on a highway in the Commonwealth
has been declared an habitual offender in VirginiaDeclared an Habitual Offender
The Commonwealth must prove that the driver has been declared an habitual offender in Virginia to convict him of a violation of Va. Code §46.2-357. For more information on habitual offenders in Virginia, click here.
Knowledge of Habitual Offender Status
To convict an offender of driving after being declared an habitual offender in Virginia under Va. Code §46.2-357, the Commonwealth must prove that the offender knew that his privilege to drive has been revoked due to his habitual offender status.
Drove a Motor Vehicle
The Commonwealth must prove that the offender drove a motor vehicle to convict him of driving after being declared an habitual offender in Virginia under Va. Code §46.2-357. A motor vehicle is defined in Va. Code §46.2-100 as “every vehicle as defined in this section that is self-propelled or designed for self-propulsion except as otherwise provided in this title. Any structure designed, used, or maintained primarily to be loaded on or affixed to a motor vehicle to provide a mobile dwelling, sleeping place, office, or commercial space shall be considered a part of a motor vehicle. Except as otherwise provided, for the purposes of this title, any device herein defined as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped shall be deemed not to be a motor vehicle.”
On a Public Highway
To convict someone of driving after being declared an habitual offender in Virginia under Va. Code §46.2-357, the Commonwealth must prove the offender was driving on a public highway in the Commonwealth.
A highway is defined in Va. Code §46.2-100 as “the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, (i) the entire width between the boundary lines of all private roads or private streets that have been specifically designated “highways” by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth.”
Penalty for Driving After Being Declared An Habitual Offender in Virginia
First Offense: A first offense of driving after being declared an habitual offender in Virginia under Va. Code §46.2-357 is a Class 1 misdemeanor. It is punished with up to 90 days in jail and a fine up to $2500. There is a mandatory minimum sentence of 10 days that cannot be suspended.
First Offense, Endangering Life, Limb, or Property: If the habitual offender drives in a way that endangers the life, limb or property of another person, the offense is a felony punished with up to 5 years in prison with a mandatory minimum sentence of 1 year.
First offense + DUI Charge: If an habitual offender in Virginia commits a violation of certain alcohol-related statutes and he has previously been convicted of a DUI charge, the driving offense under Va. Code §46.2-357 becomes a felony punished with a mandatory minimum of of 1 year in prison up to 5 years in prison. The offenses which make the driving offense a felony include:
- DUI Involuntary Manslaughter (Va. Code §18.2-36.1)
- DUI Maiming (Va. Code §18.2-51.4)
- Commercial Driver DUI (Va. Code §46.2-341.24), or
- DUI (Va. Code §18.2-266)
Second or Subsequent Offense: A second offense of driving after being declared an habitual offender in Virginia under Va. Code §46.2-357 is a felony, punished with a mandatory minimum of one year in jail or prison and a maximum of 5 years in prison.
What if the Habitual Offender Was Driving Because of an Emergency?
If the offender was driving because of an apparent extreme emergency that required operation of the motor vehicle to save life or limb, the sentence-or a portion of the sentence-can be suspended.
Driving on Suspended License After Being Declared An Habitual Offender: Statute
§46.2-357. Operation of motor vehicle or self-propelled machinery or equipment by habitual offender prohibited; penalty; enforcement of section.
B. Except as provided in subsection D, any person found to be an 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:
1. 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.
2. 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.
3. 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.
C. 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 an 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.
D. 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.