Virginia Lawyers Weekly

The Court of Appeals reverses a defendant’s conviction for driving under suspension in violation of Va. Code § 46.2-301, as the trial court erred in not granting defendant’s instruction that he drove within the conditions of a valid restricted operator’s license.

The defense argued that he was driving under a valid restricted operator’s license, within the conditions of restrictions, and within the expiration date of the license. Specifically, he contended there was no premature expiration since he possessed a valid Delaware operator’s license and was in compliance with the circuit court order.

Whether defendant had a valid restricted operator’s license is premised on whether he was a resident of Delaware, and whether he had a “hard” Delaware operator’s license. These are factual determinations to be made by the fact finder, the jury in this case. The commonwealth rests its argument on the trial court making these factual findings. If defendant is to be believed, he was a resident of Delaware and had a valid Delaware “hard” operator’s license. Defendant’s sole defense was that he had a valid restricted operator’s license on July 19, 2006, and that he drove within the conditions of the restricted license.

We conclude there is more than a “scintilla” of evidence to support defendant’s proffered instruction, particularly in light of the DMV abstract that indicated defendant had a restricted license. Also, defendant testified that he moved to Delaware and that he had a valid Delaware operator’s license. He further stated he was driving within the restrictions of the restrictions set forth in the court order.

The evidence here, when viewed in the light most favorable to defendant, supported an instruction on a restricted operator’s license.

We reverse defendant’s conviction and remand for additional proceedings.

Rivenbark v. Commonwealth (Frank, J.) No. 1970-07-4, June 2, 2009; Arlington County Cir.Ct. (Newman) Amy K. Stitzel, APD, for appellant; Gregory W. Franklin, AAG, for appellee. VLW 009-7-242(UP), 8 pp.

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