Driving On A Suspended License

(VA Code § 46.2-301)

Background: Common causes of license suspension are convictions for Reckless driving, DUI, or simply failing to maintain car insurance. In extreme cases, individuals who acquire too many negative demerit points within a certain period may have their license suspended by the DMV.

Elements: To be convicted of driving on a suspended or revoked license under Va. Code § 46.2-301, an individual has actually to have been driving the vehicle. In addition, the driving must have occurred on a public highway. This is in contrast to DUI cases, where operating the vehicle suffices for the purpose of a conviction.  Second, the individual must have actually had his/her license suspended or revoked at the time of the offense. In most cases, the government will use the individual’s driving record to show that the license was suspended or revoked. Lastly, a key element of the offense is whether the individual noticed their license was suspended.

Defenses: The third element can be difficult to prove because, although mailing a notification of an impending license suspension is a form of notice, there are arguments that can be made as to whether the notice was actually received by the defendant.  A defendant may rebut the presumption of receiving notice as a defense. There are many reasons why a defendant may not have received the required notice from the clerk. Furthermore, the clerk is required to mail a notice of suspension for failure to pay court costs within five business days of the conviction of the traffic offense, notifying the individual that their license will be suspended within 30 days of the conviction for the traffic offense.  In cases where the driver admits to the officer that he or she knew the license was suspended, proof of notice can be established by an officer testifying that the defendant admitted he was aware that the license was suspended.

In some cases, the driver should not have been suspended at all, and the suspension was caused by human or clerical error.  Other times, the license wasn’t actually suspended at the time of the offense.  A defense attorney can assist in determining what caused the suspension and how to rectify the error.


A lack of reasonable articulable suspicion for initiating the traffic stop may keep any evidence against a defendant from being used in court.   This is a case-by-case analysis, and consulting with a Fairfax Criminal Defense Attorney is recommended if you would like more information about this defense.

*It is recommended that an individual get their license reinstated before their court date, as this may help get the charge dismissed or reduced, although other factors may affect whether a prosecutor will actually choose to do so.


Since driving on a suspended or revoked license is a Class 1 Misdemeanor, the maximum punishment is confinement in jail for 12 months, a $ 2,500 fine, or both. An additional license suspension for the duration of the original suspension may also be imposed. If the offense occurs three times within a ten-year period, there is a mandatory minimum requirement of 10 days in jail and a required suspension period for a period of time equaling the length of the original suspension.

The Statute:

§ 46.2-301. Driving while license, permit, or privilege to drive suspended or revoked.

A. In addition to any other penalty provided by this section, any motor vehicle administratively impounded or immobilized under the provisions of § 46.2-301.1 may, in the discretion of the court, be impounded or immobilized for an additional period of up to 90 days upon conviction of an offender for driving while his driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked for (i) a violation of § 18.2-36.1, 18.2-51.4, 18.2-266, 18.2-272, or 46.2-341.24 or a substantially similar ordinance or law in any other jurisdiction or (ii) driving after adjudication as a habitual offender, where such adjudication was based in whole or in part on an alcohol-related offense, or where such person’s license has been administratively suspended under the provisions of § 46.2-391.2. However, if the offender was driving a motor vehicle owned by another person at the time of the violation, the court shall have no jurisdiction over such a motor vehicle but may order the impoundment or immobilization of a motor vehicle owned solely by the offender at the time of the arrest. All costs of impoundment or immobilization, including removal or storage expenses, shall be paid by the offender prior to the release of his motor vehicle.

B. Except as provided in §§ 46.2-304 and 46.2-357, no resident or nonresident (i) whose driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked or (ii) who has been directed not to drive by any court or by the Commissioner, or (iii) who has been forbidden, as prescribed by operation of any statute of the Commonwealth or a substantially similar ordinance of any county, city or town, to operate a motor vehicle in the Commonwealth shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in the Commonwealth until the period of such suspension or revocation has terminated or the privilege has been reinstated or a restricted license is issued pursuant to subsection E. A clerk’s notice of suspension of license for failure to pay fines or costs given in accordance with § 46.2-395 shall be sufficient notice for the purpose of maintaining a conviction under this section. For the purposes of this section, the phrase “motor vehicle or any self-propelled machinery or equipment” shall not include mopeds.

C. A violation of subsection B is a Class 1 misdemeanor. A third or subsequent offense occurring within a 10-year period shall include a mandatory minimum term of confinement in jail of 10 days. However, the court shall not be required to impose a mandatory minimum term of confinement in any case where a motor vehicle is operated in violation of this section in an apparent extreme emergency that requires such an operation to save life or limb.

D. Upon a violation of subsection B, the court shall suspend the person’s license or privilege to drive a motor vehicle for the same period for which it had been previously suspended or revoked.

In the event the person violated subsection B by driving during a period of suspension or revocation that was not for a definite period of time, the court shall suspend the person’s license, permit, or privilege to drive for an additional period not to exceed 90 days, to commence upon the expiration of the previous license suspension or revocation or to commence immediately if the previous suspension or revocation has expired.

E. Any person who operates a motor vehicle or any self-propelled machinery or equipment in violation of the terms of a restricted license issued pursuant to subsection E of 18.2-271.1 is not guilty of a violation of this section but is guilty of a violation of 18.2-272.