Help for 46.2-301 Va Code / Driving Suspended

Are you worried about jail or losing your license? Let’s look at defenses you may have and how I can help you with a charge under 46.2-301 Va Code.

The law – 46.2-301 Va Code

Virginia law prohibits driving while your license is suspended. There are various prohibitions for driving while suspended, but the most common charge comes under 46.2-301 of the Va Code:

46.2-301 – Driving while license, permit, or privilege to drive suspended or revoked.

A. In addition to any other penalty provided by this section, any motor vehicle administratively impounded or immobilized under the provisions of § 46.2-301.1 may, in the discretion of the court, be impounded or immobilized for an additional period of up to 90 days upon conviction of an offender for driving while his driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked for (i) a violation of § 18.2-36.1, 18.2-51.4, 18.2-266, 18.2-272, or 46.2-341.24 or a substantially similar ordinance or law in any other jurisdiction or (ii) driving after adjudication as an habitual offender, where such adjudication was based in whole or in part on an alcohol-related offense, or where such person’s license has been administratively suspended under the provisions of § 46.2-391.2. However, if, at the time of the violation, the offender was driving a motor vehicle owned by another person, the court shall have no jurisdiction over such motor vehicle but may order the impoundment or immobilization of a motor vehicle owned solely by the offender at the time of arrest. All costs of impoundment or immobilization, including removal or storage expenses, shall be paid by the offender prior to the release of his motor vehicle.

B. Except as provided in §§ 46.2-304 and 46.2-357, no resident or nonresident (i) whose driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked or (ii) who has been directed not to drive by any court or by the Commissioner, or (iii) who has been forbidden, as prescribed by operation of any statute of the Commonwealth or a substantially similar ordinance of any county, city or town, to operate a motor vehicle in the Commonwealth shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in the Commonwealth until the period of such suspension or revocation has terminated or the privilege has been reinstated or a restricted license is issued pursuant to subsection E. A clerk’s notice of suspension of license for failure to pay fines or costs given in accordance with § 46.2-395 shall be sufficient notice for the purpose of maintaining a conviction under this section. For the purposes of this section, the phrase “motor vehicle or any self-propelled machinery or equipment” shall not include mopeds.

C. A violation of subsection B is a Class 1 misdemeanor. A third or subsequent offense occurring within a 10-year period shall include a mandatory minimum term of confinement in jail of 10 days. However, the court shall not be required to impose a mandatory minimum term of confinement in any case where a motor vehicle is operated in violation of this section in a situation of apparent extreme emergency which requires such operation to save life or limb.

D. Upon a violation of subsection B, the court shall suspend the person’s license or privilege to drive a motor vehicle for the same period for which it had been previously suspended or revoked. In the event the person violated subsection B by driving during a period of suspension or revocation which was not for a definite period of time, the court shall suspend the person’s license, permit or privilege to drive for an additional period not to exceed 90 days, to commence upon the expiration of the previous suspension or revocation or to commence immediately if the previous suspension or revocation has expired.

E. Any person who is otherwise eligible for a restricted license may petition each court that suspended his license pursuant to subsection D for authorization for a restricted license, provided that the period of time for which the license was suspended by the court pursuant to subsection D, if measured from the date of conviction, has expired, even though the suspension itself has not expired. A court may, for good cause shown, authorize the Department of Motor Vehicles to issue a restricted license for any of the purposes set forth in subsection E of § 18.2-271.1. No restricted license shall be issued unless each court that issued a suspension of the person’s license pursuant to subsection D authorizes the Department to issue a restricted license. Any restricted license issued pursuant to this subsection shall be in effect until the expiration of any and all suspensions issued pursuant to subsection D, except that it shall automatically terminate upon the expiration, cancellation, suspension, or revocation of the person’s license or privilege to drive for any other cause. No restricted license issued pursuant to this subsection shall permit a person to operate a commercial motor vehicle as defined in the Commercial Driver’s License Act (§ 46.2-341.1 et seq.). The court shall forward to the Commissioner a copy of its authorization entered pursuant to this subsection, which shall specifically enumerate the restrictions imposed and contain such information regarding the person to whom such a license is issued as is reasonably necessary to identify the person. The court shall also provide a copy of its authorization to the person, who may not operate a motor vehicle until receipt from the Commissioner of a restricted license. A copy of the restricted license issued by the Commissioner shall be carried at all times while operating a motor vehicle.

F. Any person who operates a motor vehicle or any self-propelled machinery or equipment in violation of the terms of a restricted license issued pursuant to subsection E of § 18.2-271.1 is not guilty of a violation of this section but is guilty of a violation of § 18.2-272.

Things they have to prove

When defending any criminal charge, we have to look at the law and see what pieces the Commonwealth has to prove. These are known as the “elements” of the offense. For driving on suspended under 46.2-301 Va Code, the Commonwealth must prove:

1. Driving – Were you actually driving? Or were you outside the vehicle when the officer came up to you? Maybe it was an accident case, where the Commonwealth isn’t sure who was behind the wheel.

2. Motor vehicle – Were you driving a “motor vehicle”? Or was this some other type of vehicle, such as a moped?

3. Suspended – Was your license actually suspended at the time of the alleged driving? Maybe you had a restricted license, but the officer didn’t believe that you were within your restrictions.

4. Notice – Did you KNOW that your license was suspended? If you didn’t know about the license suspension (and didn’t have reason to know), that could be a defense to the charge.

What punishments are you facing?

If you’re found guilty of Va Code 46.2-301, you could be given several different punishments:

1. Jail up to 12 months,

2. Fine up to $2,500, and/or

3. License suspension.

In addition, if you’ve had 2 or more prior offenses under 46.2-301, the law requires that you get 10 days of mandatory minimum jail.

What can we do? – Fight!

The good news is that we may have defenses to your charge of driving on a suspended license. We may be able to fight different parts of the case and argue that the Commonwealth can’t properly prove that you are guilty.

If you get your license back before court, that may also help us to minimize the damage that you’re facing. In some courts, coming to trial with your license in hand could get the charge reduced to a minor traffic ticket with just a small fine to pay.

Contact me today to discuss your defenses and what options you may have for your case!

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

What's Next?

Get Free Answers

Our special report about driving on suspended explains six critical issues to possibly fight in your case.

Get Your Free Copy

Andrew wrote the book on reckless driving. It’s the most-reviewed Virginia reckless driving resource on

Get Your Free Copy

Andrew wrote the book on DWI. It’s jam-packed full of answers for your case.

Get Your Free Copy


We provide free consultations for cases in our area. If we can't help, we'll do our best to connect you with someone who can.


Contact Andrew & Fitz