Driving on a Suspended License: Is Lack of Notice of a Suspension a Defense?

One cannot be convicted of Driving on a Suspended License or Driving Without a Valid license if he didn’t know his license was suspended.  The controlling cases are Bibb v. Commonwealth,  212 Va. 249, 249-50 (1971) (for Driving on Suspended cases) and Carew v. Commonwealth, 62 Va. App. 574 (2013) (for No Valid Operator’s License cases).

The rationale is that Virginia’s Driving on Suspended law makes a reference to notice of one’s suspension.  Virginia Code § 46.2-301(B) states in pertinent part: “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.”  The Supreme Court extrapolated this language to create a notice element.

When one is charged with either of these crimes, the first line of defense is seeing whether the prosecutor can prove that the defendant had been notified of the suspension.  This can be challenging.  Certainly, proof that the defendant had actual notice does the trick.  It is common for police officers, upon learning that one’s license had been suspended, to ask the motorist if he knew his license had been suspended.  When the motorist concedes knowledge this admission is all that the prosecutor needs for that element.  However, when such a confession is not in the fact pattern, the prosecutor has to rely upon DMV records, which are often inconclusive as to whether the motorist was ever really notified of the suspension.

It is important to note that, for No Valid Operator’s license charges, the notice requirement is necessary only if the license was invalid due to a suspension.  If the license was invalid for some other reason, the notice element may not exist.

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