Virginia Code

Va. Code Ann. § 46.2-391.2 (2026)

Administrative suspension of license or privilege to operate a motor vehicle

✓ current as of May 2026

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A. If a breath test is taken pursuant to § 18.2-268.2 or any similar ordinance or § 46.2-341.26:2 and (i) the results show a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath, or (ii) the results, for persons younger than 21 years of age, show a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath or (iii) the person refuses to submit to the breath or blood test in violation of § 18.2-268.3 or any similar ordinance or § 46.2-341.26:3, and upon issuance of a petition or summons, or upon issuance of a warrant by the magistrate, for a violation of § 18.2-51.4, 18.2-266, or 18.2-266.1, or any similar ordinance, or § 46.2-341.24 or upon the issuance of a warrant or summons by the magistrate or by the arresting officer at a medical facility for a violation of § 18.2-268.3, or any similar ordinance, or § 46.2-341.26:3, the person's license shall be suspended immediately or in the case of (a) an unlicensed person, (b) a person whose license is otherwise suspended or revoked, or (c) a person whose driver's license is from a jurisdiction other than the Commonwealth, such person's privilege to operate a motor vehicle in the Commonwealth shall be suspended immediately. The period of suspension of the person's license or privilege to drive shall be seven days, unless the petition, summons or warrant issued charges the person with a second or subsequent offense. If the person is charged with a second offense the suspension shall be for 60 days. If not already expired, the period of suspension shall expire on the day and time of trial of the offense charged on the petition, summons, or warrant, except that it shall not so expire during the first seven days of the suspension. If the person is charged with a third or subsequent offense, the suspension shall be until the day and time of trial of the offense charged on the petition, summons, or warrant. Any person whose license is suspended under this section after being charged with a second offense may petition the general district court where the charge occurred, or, if a nonresident of the Commonwealth, the general district court where the charge occurred for a restricted license and installation of an ignition interlock system pursuant to § 18.2-270.1. Any person granted a restricted license pursuant to this subsection shall be required, by court order, to enter into an alcohol safety action program to pre-qualify with the program to have an ignition interlock system installed on any motor vehicle owned or operated by him and may have such ignition interlock system installed. Any installation period of time accrued by such person prior to trial for the pending charge shall count toward any (i) ignition interlock or restricted license period of time ordered by a court or (ii) restricted license, suspension, or revocation issued by the Department of Motor Vehicles pursuant to § 46.2-389.

A law-enforcement officer, acting on behalf of the Commonwealth, shall serve a notice of suspension personally on the arrested person. When notice is served, the arresting officer shall promptly take possession of any driver's license held by the person and issued by the Commonwealth and shall promptly deliver it to the magistrate. Any driver's license taken into possession under this section shall be forwarded promptly by the magistrate to the clerk of the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made together with any petition, summons, or warrant, the results of the breath test, if any, and the report required by subsection B. A copy of the notice of suspension shall be forwarded forthwith to both (1) the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made and (2) the Commissioner. Transmission of this information may be made by electronic means.

The clerk shall promptly return the suspended license to the person at the expiration of the suspension. Whenever a suspended license is to be returned under this section or § 46.2-391.4, the person may elect to have the license returned in person at the clerk's office or by mail to the address on the person's license or to such other address as he may request.

B. Promptly after arrest and service of the notice of suspension, the arresting officer shall forward to the magistrate a sworn report of the arrest that shall include (i) information which adequately identifies the person arrested and (ii) a statement setting forth the arresting officer's grounds for belief that the person violated § 18.2-51.4, 18.2-266, or 18.2-266.1, or a similar ordinance, or § 46.2-341.24 or refused to submit to a breath or blood test in violation of § 18.2-268.3 or a similar ordinance or § 46.2-341.26:3. The report required by this subsection shall be submitted on forms supplied by the Supreme Court.

C. Any person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period of the suspension, request the general district court or, as appropriate, the court with jurisdiction over juveniles of the jurisdiction in which the arrest was made to review that suspension. The court shall review the suspension within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition, the court shall rescind the suspension, or that portion of it that exceeds seven days if there was not probable cause to charge a second offense or 60 days if there was not probable cause to charge a third or subsequent offense, and the clerk of the court shall forthwith, or at the expiration of the reduced suspension time, (i) return the suspended license, if any, to the person unless the license has been otherwise suspended or revoked, (ii) deliver to the person a notice that the suspension under § 46.2-391.2 has been rescinded or reduced, and (iii) forward to the Commissioner a copy of the notice that the suspension under § 46.2-391.2 has been rescinded or reduced. Otherwise, the court shall affirm the suspension. If the person requesting the review fails to appear without just cause, his right to review shall be waived.

The court's findings are without prejudice to the person contesting the suspension or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.

D. If a person whose license or privilege to operate a motor vehicle is suspended under subsection A is convicted under § 18.2-36.1, 18.2-51.4, 18.2-266, or 18.2-266.1 or subdivision A 1 or B 1 of § 18.2-268.3, or any similar ordinance, or § 46.2-341.24 during the suspension imposed by subsection A, and if the court decides to issue the person a restricted permit under subsection E of § 18.2-271.1 or subsection F of § 18.2-268.3, such restricted permit shall not be issued to the person before the expiration of the first seven days of the suspension imposed under subsection A.

1994, cc. 359, 363; 1996, cc. 865, 1007; 1997, c. 691; 2001, c. 779; 2003, c. 605; 2004, cc. 937, 960; 2005, cc. 757, 840; 2014, c. 707; 2017, c. 623; 2020, c. 341; 2026, c. 1112.

Notes of Decisions

Cited in 31 cases, 1995–2007 · leading case: Tench v. Commonwealth, 462 S.E.2d 922 (Va. Ct. App. 1995).

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Tench v. Commonwealth, 462 S.E.2d 922 (Va. Ct. App. 1995). · cites it 62× “Tench claims that because his driver's license had been suspended pursuant to Code § 46.2-391.2 prior to his conviction and punishment for driving while intoxicated, he was twice placed in jeopardy for the same offense in violation of the United States Constitution.”

Depsky v. Commonwealth, 650 S.E.2d 867 (Va. Ct. App. 2007). · cites it 50× “On appeal, she contends the trial court erred in ruling her conviction for DUI, after her privilege to drive in Virginia had been suspended pursuant to the sixty-day suspension provision in Code § 46.2-391.2 for the same offense, did not violate the constitutional prohibition…”

Nicely v. Commonwealth, 477 S.E.2d 11 (Va. Ct. App. 1996). · cites it 40× “2-266, and their driver’s licenses were suspended for seven days pursuant to Code § 46.2-391.2. The dispositive issue in both cases is whether the trial court erred in finding that it had no jurisdiction to consider an appeal of the seven- *329 day suspension of each appellant’s…”

Brame v. Commonwealth, 476 S.E.2d 177 (Va. 1996). · cites it 20× “3, the court shall suspend his privilege to drive for a period of one year, in addition to the seven-day suspension imposed under Code § 46.2-391.2. The record shows that on February 13, 1995, C.”

Jones v. City of Lynchburg, 474 S.E.2d 863 (Va. Ct. App. 1996). · cites it 28× “Pursuant to Code § 46.2-391.2, upon appellant's arrest, his driver's license was suspended administratively for seven days.”

Ingram v. Commonwealth, 514 S.E.2d 792 (Va. Ct. App. 1999). · cites it 15× “Based on his inability to take a breath test, the Commonwealth administratively suspended his operator’s license for seven days pursuant to Code § 46.2-391.2. Although the Notice of Administrative Suspension issued to appellant indicated he could challenge the suspension by…”

Highsmith v. Commonwealth, 489 S.E.2d 239 (Va. Ct. App. 1997). · cites it 6× “” Additionally, appellant’s operator’s license was suspended pursuant to the administrative license suspension (ALS) provisions of Code § 46.2-391.2. On May 11, 1995, the district court ruled on appellant’s motion to review the suspension of his license under Code § 46.”

Simmons v. Commonwealth, 475 S.E.2d 806 (Va. 1996). · cites it 5× “The seven-day administrative suspension was made pursuant to Code § 46.2-391.2, which provides in pertinent part that if a person refuses to submit to a breath test in violation of Code § 18.”

Commonwealth v. Southerly, 551 S.E.2d 650 (Va. 2001). · cites it 2× “In Nicely , a circuit court held it had no jurisdiction to consider either an appeal from a seven-day administrative suspension of a driver’s license under Code § 46.2-391.2 or a motion to dismiss the underlying driving while intoxicated charge.”

Cummings v. Commonwealth, 481 S.E.2d 493 (Va. Ct. App. 1997). · cites it 8× “Pursuant to the administrative license suspension (ALS) provisions, Code § 46.2-391.2, her driver’s license was suspended for seven days.”

Murphy v. Com. of Virginia, 896 F. Supp. 577 (E.D. Va. 1995). · cites it 4× “2-266, after that person has had his driver's license suspended under the ALS procedure of Virginia Code § 46.2-391.2. Yet, because the relief sought is a federal injunction against a state criminal proceeding, the vital threshold question is whether abstention under Younger v.”

Commonwealth v. Dederer, 38 Va. Cir. 52 (Fairfax Cir. Ct. 1995). · cites it 15× “The clear meaning and effect of §§ 46.2-391.2 and 46.2-391.4 belie any claim that their purpose is solely remedial.”

Show all 31 citing cases →

— Va. Code Ann. § 46.2-391.2(0) — 1 case

Easter v. Commonwealth, 525 S.E.2d 592 (Va. Ct. App. 2000).

— Va. Code Ann. § 46.2-391.2(A) — 8 cases

Brame v. Commonwealth, 476 S.E.2d 177 (Va. 1996). “3, the court shall suspend his privilege to drive for a period of one year, in addition to the seven-day suspension imposed under Code § 46.2-391.2. The record shows that on February 13, 1995, C.”

Depsky v. Commonwealth, 650 S.E.2d 867 (Va. Ct. App. 2007). “On appeal, she contends the trial court erred in ruling her conviction for DUI, after her privilege to drive in Virginia had been suspended pursuant to the sixty-day suspension provision in Code § 46.2-391.2 for the same offense, did not violate the constitutional prohibition…”

Nicely v. Commonwealth, 477 S.E.2d 11 (Va. Ct. App. 1996). “2-266, and their driver’s licenses were suspended for seven days pursuant to Code § 46.2-391.2. The dispositive issue in both cases is whether the trial court erred in finding that it had no jurisdiction to consider an appeal of the seven- *329 day suspension of each appellant’s…”

Ingram v. Commonwealth, 514 S.E.2d 792 (Va. Ct. App. 1999). “Based on his inability to take a breath test, the Commonwealth administratively suspended his operator’s license for seven days pursuant to Code § 46.2-391.2. Although the Notice of Administrative Suspension issued to appellant indicated he could challenge the suspension by…”

Commonwealth v. Stump, 69 Va. Cir. 433 (Roanoke County Cir. Ct. 2006).

— Va. Code Ann. § 46.2-391.2(B) — 3 cases

Jones v. City of Lynchburg, 474 S.E.2d 863 (Va. Ct. App. 1996). “Pursuant to Code § 46.2-391.2, upon appellant's arrest, his driver's license was suspended administratively for seven days.”

Easter v. Commonwealth, 525 S.E.2d 592 (Va. Ct. App. 2000).

Commonwealth v. Durst, 39 Va. Cir. 337 (Fairfax Cir. Ct. 1996).

— Va. Code Ann. § 46.2-391.2(C) — 9 cases

Jones v. City of Lynchburg, 474 S.E.2d 863 (Va. Ct. App. 1996). “Pursuant to Code § 46.2-391.2, upon appellant's arrest, his driver's license was suspended administratively for seven days.”

Highsmith v. Commonwealth, 489 S.E.2d 239 (Va. Ct. App. 1997). “” Additionally, appellant’s operator’s license was suspended pursuant to the administrative license suspension (ALS) provisions of Code § 46.2-391.2. On May 11, 1995, the district court ruled on appellant’s motion to review the suspension of his license under Code § 46.”

— Va. Code Ann. § 46.2-391.2(D) — 1 case

Commonwealth v. Dederer, 38 Va. Cir. 52 (Fairfax Cir. Ct. 1995). “The clear meaning and effect of §§ 46.2-391.2 and 46.2-391.4 belie any claim that their purpose is solely remedial.”

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