VIOLATING DUI PROBATION: ASAP VIOLATION / ASAP NON-COMPLIANCE
Revocation of suspension of sentence
VASAP or ASAP is the Virginia Alcohol Safety Action Program. This is a 20-hour program which focuses on substance abuse and driving, substance abuse and health, and self evaluation of potential for substance abuse. All persons will be tested for alcohol/drugs. If tested positive for either, the participant will immediately be reclassified for treatment. Failure to comply with treatment will result in an ASAP violation. Failure to comply with any ASAP requirement will result in a probation violation of ASAP non-compliance charge filed with the court.
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.
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 one year after the expiration of the period of probation or the period of suspension 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 one year 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: (i) if the court originally suspended the imposition of sentence, the court shall revoke the suspension, and the court may pronounce whatever sentence might have been originally imposed or (ii) if the court originally suspended the execution of the sentence, the court shall revoke the suspension and the original sentence shall be in full force and effect. The court may again suspend all or any part of this sentence and may place the defendant upon terms and conditions or probation.
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.