VIOLATING DUI PROBATION: ASAP VIOLATION / ASAP NON-COMPLIANCE
Imposition of Suspended Sentence
Upon conviction of a DWI offense, Virignia courts sentence guilty persons to jail time and a fine, and frequently suspend positions of the fine and the jail time conditioned on successful completion of the ASAP program.
VASAP or ASAP is the Virginia Alcohol Safety Action Program, a court-ordered supervisory program for those found guilty of substance abuse crimes. This includes 20-hours of alcohol education classes which focus on substance abuse and driving, substance abuse and health, and self evaluation of potential for substance abuse. ASAP participants are warned that this is a dry program and that participants will be randomly tested for alcohol/drugs. If tested positive for either, the participant will immediately be “reclassified for treatment” and may be reported to the court for ASAP violation. Missing ASAP classes or failure to comply with treatment will also result in an ASAP violation reported to the court. Failure to comply with any ASAP requirement will result in a probation violation of ASAP non-compliance charge filed with the court.
Once an ASAP violation notice is filed, the court can conduct hearings and the judge can decide to impose a suspended portion of the criminal sentence.
VASAP also serves a probationary function – meaning that they will report to the court if you do not follow their rules. During educational classes, they can require you to take an alcohol breath test or a drug urine test. ASAP will ensure you complete all classes and treatment and that you install ignition interlock and use it without a positive reading, or you will be violated to the court. At the end of your “good behavior” period, ASAP will run a criminal background check to make sure you that you have not obtained new criminal charges. Since completion of VASAP is a condition of any suspended jail sentence, you are required by law to comply with their demands.
Under VA law, in any case where the court has suspended a portion of the jail sentence or the fine, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court. (VA Code 19.2-306). In DUI cases, this period tends to be for at least one year following the DUI conviction.
DUI probation violations and ASAP violations include new criminal charges, failure to go to ASAP classes, testing positive for drugs, etc.
Before imposing a portion or all of the remaining sentence, the court must have a hearing on the issue. The court will serve you with notice that you must appear in court to show cause why the remaining sentence should be imposed. At the hearing, the judge can impose all or some of the remaining sentence, or the judge may again suspend all or any part of this sentence and may place the defendant on probation.
Alexandria, Arlington and Fairfax ASAP programs enforce their rules to the fullest extent and will bring probation violation charges or ASAP noncompliance charges for violations of all types, most commonly: test positive for alcohol or drugs, new criminal law violations, non-payment of costs, non-completion of ASAP classes, ignition interlock violations, etc.
DRIVING ON A RESTRICTED LICENSE WITH A BAC OF .02+ AFTER A DUI CONVICTION – VA LAW §18.2-272
If you are driving on license revoked pursuant to a DUI conviction or a Refusal, you can be charged with a violation under VA Code 18.2-272 with a blood alcohol content of 0.02 percent or more. (Alternatively, the charge can be DUI under 18.2-266. This will depend on the extent of evidence of intoxication. Intoxication is not an element of the 18.2-272 offense.)
DRIVING ON A SUSPENDED OR REVOKED LICENSE DUE TO DUI CONVICTION – VA LAW §18.2-272
Driving on a revoked license pursuant to a DUI conviction is a class 1 misdemeanor offense, just like the original DUI. Aside from a likely jail sentence of up to a year, the penalty will also include another year of a suspended license. A third violation of this law within a ten-year period is a class 6 felony.
VA Law § 19.2-306. Revocation of suspension of sentence and probation.A. In any case in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court. If neither a probation period nor a period of suspension was fixed by the court, then the court may revoke the suspension for any cause the court deems sufficient that occurred within the maximum period for which the defendant might originally have been sentenced to be imprisoned.B. The court may not conduct a hearing to revoke the suspension of sentence unless the court issues process to notify the accused or to compel his appearance before the court within 90 days of receiving notice of the alleged violation or within one year after the expiration of the period of probation or the period of suspension, whichever is sooner, or, in the case of a failure to pay restitution, within three years after such expiration. If neither a probation period nor a period of suspension was fixed by the court, then the court shall issue process within six months after the expiration of the maximum period for which the defendant might originally have been sentenced to be incarcerated. Such notice and service of process may be waived by the defendant, in which case the court may proceed to determine whether the defendant has violated the conditions of suspension.C. If the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then the court may revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1. The court may again suspend all or any part of this sentence for a period up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned, less any time already served, and may place the defendant upon terms and conditions or probation. The court shall measure the period of any suspension of sentence from the date of the entry of the original sentencing order. However, if a court finds that a defendant has absconded from the jurisdiction of the court, the court may extend the period of probation or suspended sentence for a period not to exceed the length of time that such defendant absconded.
D. If any court has, after hearing, found no cause to impose a sentence that might have been originally imposed, or to revoke a suspended sentence or probation, then any further hearing to impose a sentence or revoke a suspended sentence or probation, based solely on the alleged violation for which the hearing was held, shall be barred.
E. Nothing contained herein shall be construed to deprive any person of his right to appeal in the manner provided by law to the circuit court having criminal jurisdiction from a judgment or order revoking any suspended sentence.
§ 19.2-306.1. Limitation on sentence upon revocation of suspension of sentence; exceptions.A. For the purposes of this section, “technical violation” means a violation based on the probationer’s failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use, possession, or distribution of controlled substances or related paraphernalia; (viii) refrain from the use, ownership, possession, or transportation of a firearm; (ix) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (x) maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer. Multiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section.B. If the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of the suspension, or has violated another condition other than (i) a technical violation or (ii) a good conduct violation that did not result in a criminal conviction, then the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.C. The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumption against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation. However, if the court finds, by a preponderance of the evidence, that the defendant committed a second technical violation and he cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than 14 days of active incarceration for a second technical violation. The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation. For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.
D. The limitations on sentencing in this section shall not apply to the extent that an additional term of incarceration is necessary to allow a defendant to be evaluated for or to participate in a court-ordered drug, alcohol, or mental health treatment program. In such case, the court shall order the shortest term of incarceration possible to achieve the required evaluation or participation.