Driving with a Revoked or Suspended License

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When a driver's license, or "operator's license or permit," is revoked or suspended, the licensee is supposed to stop driving until the license and driving privileges are restored. A person who continues to drive with a license under suspension or revocation is violating the order of a court or an administrative agency.

Often, a person's license is considered to be suspended from the time the suspension is imposed, even though the period of suspension may not officially begin until a later date. In addition, the suspension usually continues until the license is actually restored by the court or agency that imposed the suspension.

Generally, driving with a revoked or suspended license is considered a serious offense, similar to contempt of court (violating a court order), and the punishment for the crime can be severe: a large fine, mandatory imprisonment, or both.

Elements of the Crime

The elements of the offense of driving or operating a vehicle with a license under suspension or revocation must be proven to the jury beyond a reasonable doubt.

In many states, the prosecution is not required to prove that a motorist had a mens rea, or "guilty mind," with respect to any element of the crime. Instead, in those states, the only two factors that must be proved are:

• That the defendant was driving a motor vehicle on a public highway, and
• That the accused's driver's license was suspended or revoked at the time he or she was driving

In some states, however, the prosecution must prove that the motorist had actual or constructive knowledge that his or her license was suspended or revoked at the time he or she was driving.

Proof of the mailing of the notice of suspension of the license to the driver is not an element of the offense, but the State is required to prove the mailing, nonetheless, in order for it to establish that the suspension is in fact valid.

Defenses to the Crime

There are several defenses that an accused motorist can raise when facing a charge of driving while under suspension or revocation.

License Status

Sometimes, a motorist's name is mistakenly on the list of revoked or suspended licenses at the time he or she is stopped by the police for a traffic violation. For example, another person with a similar name may actually be the person whose license was revoked or suspended. Or, the driver's license may have been suspended and then restored, but the restoration of driving privileges may not have been entered into the state's records properly.

So, the first step in defending a charge of driving while license revoked or suspended is to order a computer printout of the driver's record from the state's department of motor vehicles to ensure that the license was, in fact, suspended or revoked on the date in question.

If it was not, or if it was revoked or suspended by mistake, you should get a document containing a statement to that effect from the state and present it to the prosecuting attorney with a request that the pending charge be dismissed. If the prosecuting attorney does not dismiss the charge, the document should be used as evidence at trial to disprove the State's case.

Normally, the prosecutor or police officer will not proceed with a case if such a document is produced.

Lack of Proper Notice

Did the motorist receive the proper notice of suspension or revocation? The notice requirement is usually satisfied if the license was suspended or revoked in court by a judge with the defendant present. However, if the license was suspended or revoked by the department of motor vehicles for points (that is, a type of "demerit" system under which a license is being suspended based on the cumulative violations of a driver), not paying a traffic or parking ticket, or some other reason, the State must prove notice to the defendant.

Most statutes concerning loss of license contain a provision stating the kind of notice required. The crime requires at least constructive receipt of the license revocation order. Usually, notice of a suspension or revocation must be given at the person's last known address by certified or regular mail.

What if the defendant never actually received the notice? Generally, if there is proof that the notice was mailed to the address on record it is enough to support a conviction. In most states, a driver has an obligation under the law to notify the department of motor vehicles of a change of address. So, a defendant who does not provide that notification cannot use lack of notice as a defense.

To prove proper notification, the State does not have to produce the actual person who sent out the notice. Normally, a certification or affidavit of mailing is sufficient. A copy of the letter that was sent is usually insufficient unless there is evidence that it was in fact mailed.

As to sufficiency or adequacy of the notice, it falls on the motorist to produce some evidence that the notice was, in fact, inadequate.

Finally, if the defendant was not afforded the opportunity for a hearing after receiving notice of the revocation or suspension, the motorist can assert the defense that the attempted suspension or revocation of his or her license is void, or without effect, as a matter of law.

Identity of the Driver

One defense to the offense of driving with a suspended or revoked license is that the defendant was not operating the vehicle. The act of operating, or driving, is a fact issue that must be proven by the State beyond a reasonable doubt. Operation can be proven either by direct evidence, such as a traffic stop of the moving vehicle, or circumstantial evidence, such as testimony that the defendant was found alone and unconscious in car, in the driver's area, with the keys in the ignition, but with the motor not running.

The term "operation" can have a broader definition under a driving while revoked or suspended statute than under a statute dealing only with a licensing requirement. For example, operation may mean merely having physical control of the vehicle, which can be proven by circumstantial evidence.

Necessity or Emergency

Some states have a general defense of necessity or emergency that can be used for any offense.

In order for this defense to be successful, the defendant must show by a preponderance of the evidence, meaning more likely than not, that he or she actually and reasonably believed that there was an injury or immediate threat of injury to human or animal life and that the urgency of the circumstances made it necessary for the defendant to drive.

There are situations in which the defense of necessity or emergency in a case of driving while license revoked or suspended might be successful, but this is generally true only in a state that specifically provides for the defense by law.

Operating a Vehicle with a Restricted or Out-of-State License

In states that grant restricted licenses after suspension, when the defendant raises the possession of such a license as a defense to a driving while license revoked or suspended charge, the issue is whether the vehicle was being operated within the restrictions of the license.

It is usually not a defense to a charge of driving while license revoked or suspended that the driver has a valid out-of-state license. Normally, a new license will not be issued by another state if a suspension has not been terminated in the state in which it was imposed.

However, some states vary in their adherence to this practice, such that the possession of an out-of-state license may be a defense in some cases. In those states, possession of a valid out-of-state license is usually an affirmative defense that the defendant will have to prove.

A license fraudulently obtained in another state is not a valid defense to a charge of driving while license revoked or suspended.

In addition, the fact that the defendant is no longer a resident of the state in which he or she is being prosecuted normally does not prevent him or her from being convicted for driving with a suspended or revoked license.

Miscellaneous Defenses

Other defenses that have been raised to a charge of driving while license revoked or suspended include:

• Religious beliefs
• The constitutional right to travel
• Entrapment, and
• The doctrine of laches

The fact that a person has reapplied for a driver's license is not normally a defense to this crime. However, a motorist's failure to pay a restoration fee does not extend the period of suspension.

Sentencing

The sentences or punishments imposed for convictions of the offense of driving while license revoked or suspended are often quite severe, and imprisonment is sometimes ordered. This is especially likely if the defendant has been convicted of prior offenses. Moreover, the law may require that license suspensions for unrelated violations be served consecutively, rather than concurrently.

Severe mandatory sentences may be imposed in some states if certain aggravating factors were present. For example, many statutes provide for a greater penalty if:

• The defendant's license was revoked or suspended for driving while intoxicated, also commonly known as "driving under the influence"
• An accident occurred while the defendant was driving under suspension or revocation and someone was injured

At sentencing, it should be emphasized to the judge that the defendant realizes the seriousness of having his or her license suspended or revoked and will not drive again until he or she is legally entitled to do so. It is important to convince the judge that the defendant does not need a more serious penalty, such as jail time, to make him or her obey the traffic laws.

Appeal

An appeal of a conviction of driving while under suspension or revocation should be considered if any legal errors were committed during the trial process. For example, an improper jury instruction that was objected to by a driver's defense lawyer can result in the reversal of a conviction.

It is critical here to be aware that the failure to appeal the decision bars a driver from challenging the conviction in the future.

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