No Operator’s License In Virginia
The charge of No Operator’s License under Virginia Code §46.2-300 has seen increased enforcement, especially against those who cannot obtain driver’s licenses due to immigration issues.
A first offense driver’s without a valid license charge is a class 2 misdemeanor. As of July 1, 2007, a second or subsequent offense may be punished as a class 1 misdemeanor. As of July 1, 2008, a court may suspend a person’s driving privileges upon conviction of no operator’s license for up to 90 days. Va. Code §46.2-300.
Notice
Prosecutors sometimes amend driving on suspended license charges under §46.2-301 to driving without a license under Virginia Code §46.2-300 where the prosecution cannot prove a defendant had notice of suspension. Virginia Code §46.2-300 states in pertinent part:
No person . . . shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver’s license . . . and obtained a driver’s license, nor unless the license is valid.
As written, the statute, unlike the statute for driving on a suspended license (Va. Code 46.2-301), does not have a notice requirement—i.e. under the statute, a person may be convicted if the accused was under the mistaken belief he/she had a valid license. However, the Court of Appeals decided in Carew v. Commonwealth, 62 Va.App. 574, 578-589, 750 S.E.2d 226 (Va. App., 2013) that “[w]hen the predicate for invalidity under Code § 46.2–300 is a suspended license, the Commonwealth must prove the defendant received notice of the suspension.” That is, Carew indicates that no valid operator’s license is not a strict liability offense where the reason for the invalid license is a suspension.
However, Carew would not appear to reach a situation where a defendant failed to renew a driver’s license. Further, if a defendant knew his/her license were suspended, it would not be impermissible to charge the person with no operator’s license. In this regard, in Shreve v. Commonwealth, the Court of Appeals upheld a conviction for driving without a valid license under Virginia Code §46.2-300 where the appellant’s license had been suspended. 605 S.E.2d 780, 44 Va. App. 541 (Va. App., 2004).
NO OPERATOR’S LICENSE (NOL) – FOREIGN LICENSE IN POSSESSION
There sometimes appears to be no defense for recent immigrants or foreign nationals charged with driving without a license under Virginia Code §46.2-300 after a valid traffic stop. Nonetheless, defendants sometimes possess a valid license from another country or state.
The possession of a foreign or out-of-state license is a complete defense to NOL if the person is not a Virginia resident. Under Virginia Code §46.2-307, a nonresident “duly licensed as a driver in his home state or country and who has in his immediate possession a driver’s license issued to him” may drive in Virginia. Hence, it would appear a Maryland resident can drive in Virginia with a Peruvian license.
If the person lives in Virginia (e.g. gives a Virginia address) and possesses a foreign or out-of-state license, under Virginia Code §46.2-308, there is a temporary exemption, for sixty days, for drivers who recently moved into the Commonwealth.
Police officers ticketing persons possessing foreign licenses in Virginia with NOL often fail to inquire when the person moved to Virginia. This can make it difficult for a prosecutor to prove a no operating license offense.
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