Can the Virginia DMV require an ignition interlock for license reinstatement after a second DUI even if the sentencing court didn't order one?

Plain-English summary

Delegate Joseph Johnson asked about a gap in DUI sentencing. The Virginia Code requires an ignition interlock for second or subsequent DUI offenders both as a condition of a restricted license during the revocation period and as a condition of license restoration at the end of the revocation. But what happens when the convicting court simply did not order the interlock, and three years later the driver appears at the DMV asking for his license back?

AG Cuccinelli concluded the DMV is not stuck. Section 46.2-391.01 expressly provides that when the court fails to prohibit operation of a vehicle without a functioning, certified ignition interlock as required by §§ 18.2-270.1 and 18.2-271.1, "the Commissioner [of DMV] shall enforce the requirements relating to installation of such systems." All three relevant statutes (§§ 18.2-270.1, 18.2-271.1(C), and 46.2-391.01) use "shall," which the Virginia Supreme Court generally treats as mandatory (Andrews v. Shepherd). Read in pari materia (Prillaman v. Commonwealth), the General Assembly's intent is plain: every second-or-subsequent DUI conviction gets an interlock requirement, imposed by the court if the court orders it, by the DMV if the court does not.

The opinion was careful in two ways. First, it noted that the AG does not investigate the facts behind opinion requests; it answered the statutory question, not whether the DMV acted properly in any specific case. Second, it deferred to the DMV's interpretations as the agency charged with administering the law, unless clearly wrong. The bottom line for the driver is that the absence of an explicit court order does not give a free pass at the reinstatement stage.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How long does the interlock have to stay installed?
A: Per § 18.2-271.1(C), the ignition interlock condition runs for six months beginning at the end of the three-year license revocation, unless an interlock had already been installed for six months pursuant to a restricted license order during the revocation. The exact duration the DMV imposes will follow that statutory framework.

Q: Who pays for the interlock?
A: The offender. Section 18.2-270.1 says the offender pays the cost of leasing or buying and monitoring and maintaining the device. ASAP supervision charges are separate.

Q: Does the offender have any recourse to challenge the DMV's imposition?
A: The opinion did not address procedure. Administratively, the DMV's actions are reviewable. But arguing that the court's silence excused the offender is unlikely to succeed because § 46.2-391.01 specifically anticipates that gap.

Q: What's the role of the Alcohol Safety Action Program (ASAP)?
A: ASAP enrolls and supervises the offender during the interlock period, requires the interlock to be monitored and calibrated at least every 30 days, and can move to revoke driving privileges if the offender fails to install or maintain the device.

Background and statutory framework

Virginia's DUI penalties are in Article 2, Chapter 7 of Title 18.2 (§§ 18.2-266 through 18.2-273) and overlap with provisions in Title 46.2. Section 18.2-270.1(B) requires a court to order an interlock for second-or-subsequent DUI offenses, both as a restricted-license condition and as a license-restoration condition. Section 18.2-271.1(C) restates the same requirement and ties it to a six-month window at the end of the three-year revocation. Section 46.2-391.01 is the backstop: if the court fails to order, the DMV "shall enforce" the same requirements.

The three "shalls" together with the in pari materia principle drove the result. Andrews v. Shepherd is the leading Virginia case on "shall" as mandatory; Prillaman v. Commonwealth is the leading case on reading statutes on the same subject together to give effect to legislative intent.

Citations

• Va. Code Ann. § 18.2-270.1(B) (court shall require interlock for 2nd DUI)
• Va. Code Ann. § 18.2-271.1(C) (interlock condition for license restoration)
• Va. Code Ann. § 46.2-391.01 (DMV backstop when court fails to order)
• Andrews v. Shepherd, 201 Va. 412 (1959) ("shall" generally mandatory)
• Prillaman v. Commonwealth, 199 Va. 401 (1957) (in pari materia)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-018-Johnson.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

April 20, 2010

The Honorable Joseph P. Johnson, Jr.
Member, House of Delegates
164 East Valley Street
Abingdon, Virginia 24210

Dear Delegate Johnson:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the Department of Motor Vehicles ("Department") has the authority to impose an ignition interlock system upon an individual seeking reinstatement of his driver's license after the three-year license revocation period resulting from a conviction of second offense driving under the influence ("DUI"). You note that the convicting court did not impose such a requirement.[1]

Response

It is my opinion that the Commissioner of the Department of Motor Vehicles is both authorized and mandated to impose an ignition interlock system upon an individual seeking reinstatement of a driver's license after the three-year license revocation period resulting from a conviction for driving under the influence, second or subsequent offense, when the convicting court fails to order the installation of such system.

Applicable Law and Discussion

The responsibility for ordering ignition interlock systems initially falls to the court. Article 2, Chapter 7 of Title 18.2, §§ 18.2-266 through 18.2-273 (codified in scattered sections), contains the penalties, sanctions, and requirements related to driving a motor vehicle while under the influence of alcohol. Section 18.2-270.1(B) provides, in part, that a court:

shall, for a second or subsequent offense [under § 18.2-266][2] … as a condition of a restricted license or as a condition of license restoration under subsection C of § 18.2-271.1 or 46.2-391, prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for any period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements, and shall require that such a system be installed on each motor vehicle, as defined in § 46.2-100, owned by or registered to the offender, in whole or in part, for such period of time. Such condition shall be in addition to any purposes for which a restricted license may be issued pursuant to § 18.2-271.1.

Section 18.2-270.1(B) specifically refers to § 18.2-271.1(C), which provides, in pertinent part, that:

Upon conviction of a violation of § 18.2-266 or any ordinance of a county, city or town similar to the provisions thereof, or subsection A of § 46.2-341.24, the court shall impose the sentence authorized by § 18.2-270 or § 46.2-341.28[3] and the license revocation as authorized by § 18.2-271. In addition, if the conviction was for a second offense committed within less than ten years after a first such offense, the court shall order that restoration of the person's license to drive be conditioned upon the installation of an ignition interlock system on each motor vehicle, as defined in § 46.2-100, owned by or registered to the person, in whole or in part, for a period of six months beginning at the end of the three year license revocation, unless such a system has already been installed for six months prior to that time pursuant to a restricted license order under subsection E of this section.

Finally, as a backstop to these provisions, § 46.2-391.01 provides that:

If the court, as a condition of license restoration or as a condition of a restricted license under subsection C of § 18.2-271.1 or § 46.2-391, fails to prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system upon the offender's conviction of a second or subsequent offense under § 18.2-51.4 or § 18.2-266 or a substantially similar ordinance of any county, city or town, the Commissioner [of DMV] shall enforce the requirements relating to installation of such systems in accordance with the provisions of § 18.2-270.1.[4]

I note that each of the three statutes uses the word "shall" in relation to prohibition, imposition, or enforcement of the ignition interlock system requirements. The use of the word "shall" in a statute generally indicates that the procedures are intended to be mandatory.[5] Therefore, it is my opinion that the term "shall" as used in §§ 18.2-270.1, 18.2-271.1(C), and 46.2-391.01 plainly and unambiguously mandates that an ignition interlock system be installed in the situations described in the Code.

Furthermore, it is well established that statutes should not be read in isolation.[6] Statutes relating to the same subject should be considered in pari materia.[7] Moreover, statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent.[8] Therefore, it is my opinion that the General Assembly intended that the ignition interlock requirements be imposed in every case involving a conviction for DUI, second or subsequent offense. The requirement may be imposed at the end of the three-year revocation period required for a second or subsequent offense conviction or as a condition of a restricted license authorized during the three-year license revocation period. It is clear that in enacting § 46.2-391.01, the General Assembly intended to require the DMV Commissioner to impose the ignition interlock system requirements mandated by §§ 18.2-270.1 and 18.2-271.1 when a court fails to order the system. When a court has not imposed the ignition interlock system requirements, the General Assembly not only has authorized the Commissioner to impose such requirements on an individual convicted for DUI, second or subsequent offense, it has mandated that the Commissioner do so.[9]

Conclusion

Accordingly, it is my opinion that the Commissioner of the Department of Motor Vehicles is both authorized and mandated to impose an ignition interlock system upon an individual seeking reinstatement of a driver's license after the three-year license revocation period resulting from a conviction for driving under the influence, second or subsequent offense, when the convicting court fails to order the installation of such system.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. You provide a set of factual circumstances specific to a particular person. To the extent that the issue of whether the Department acted appropriately in this particular situation is a question of fact, this Office does not investigate the facts behind opinion requests and does not issue opinions regarding questions of fact. See 2006 Op. Va. Att'y Gen. 141, 141. Further, Attorneys General defer to the interpretations of the agency charged with administering the law unless such interpretation clearly is wrong. See, e.g., 2007 Op. Va. Att'y Gen. 30, 34. I have, therefore, limited my analysis to a general review of the statutes related to the imposition of ignition interlock system requirements and the general authority of the Department related to such imposition.
2. Section 18.2-266 generally prohibits persons from driving or operating motor vehicles while under the influence of alcohol or drugs.
3. Section 46.2-341.28 is related to the operation of commercial vehicles while under the influence of alcohol.
4. Section 18.2-270.1 provides, in pertinent part, other requirements that: "[B.]The offender shall be enrolled in and supervised by an alcohol safety action program pursuant to § 18.2-271.1 and to conditions established by regulation under § 18.2-270.2 by the Commission [on VASAP] during the period for which the court has ordered installation of the ignition interlock system.… "[C.]The Department [of Motor Vehicles] shall issue to the offender for the installation period required by the court, a restricted license which shall appropriately set forth the restrictions required by the court under this subsection and any other restrictions imposed upon the offender's driving privilege, and shall also set forth any exception granted by the court under subsection F. "D. The offender shall be ordered to provide the appropriate ASAP program, within 30 days of the effective date of the order of court, proof of the installation of the ignition interlock system. The Program shall require the offender to have the system monitored and calibrated for proper operation at least every 30 days by an entity approved by the Commission under the provisions of § 18.2-270.2 and to demonstrate proof thereof. The offender shall pay the cost of leasing or buying and monitoring and maintaining the ignition interlock system. Absent good cause shown, the court may revoke the offender's driving privilege for failing to (i) timely install such system or (ii) have the system property monitored and calibrated."
5. See Andrews v. Shepherd, 201 Va. 412, 414, 111 S.E.2d 279, 281-82 (1959); see also 1994 Op. Va. Att'y Gen. 64, 68.
6. 2B NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51:2 (West 7th ed. 2008); Op. Va. Att'y Gen.: 1999 at 22, 22; 1998 at 123, 124; id. at 19, 21; 1996 at 197, 198; 1995 at 146, 147; 1993 at 160, 162; id. at 135, 137; 1992 at 108, 112.
7. See Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957); 1996 Op. Va. Att'y Gen. 134, 135. "In pari materia" is the Latin phrase meaning "[o]n the same subject; relating to the same matter." BLACK'S LAW DICTIONARY 862 (9th ed. 2009).
8. See 2A SINGER & SINGER, supra note 6, at § 46:5 (West 7th ed. 2008); 2000 Op. Va. Att'y Gen. 182, 185.
9. See VA. CODE ANN. § 46.2-391.01 (2005) (providing that Commissioner "shall enforce" requirements relating to ignition interlock systems); see also supra note 5 and accompanying text.