02 May 2024

Driver's License for Foreign Citizens

Does a citizen of another country need to have a Virginia License?

Under § 46.2-308, a new resident of Virginia has a six (6) month window within which she is required to get a Virginian license.If she doesn't she can be charged with driving without a license (§ 46.2-300) and face up to twelve (12) months in jail. But, of course, not everybody who drives into Virginia intends to stay here permanently. In my part of the Commonwealth it is rather common for people from Tennessee or Kentucky to drive thru Virginia to get to the other state. People also come into Virginia for vacations or to shop or for myriad other non-permanent reasons. What happens then? Does every Kentuckian who is driving thru Wise and Scott Counties in Virginia in order to get to Kingsport, Tennessee get charged with no Virginia driver's license? 

Of course not. § 46.2-307(A) allows nonresidents to drive in Virginia:

A nonresident over the age of sixteen years and three months who has been duly licensed as a driver under a law requiring the licensing of drivers in his home . . . country and who has in his immediate possession a driver's license issued to him in his . . . country shall be permitted, without a Virginia license, to drive a motor vehicle on the highways of the Commonwealth.

Strangely, after this blanket allowance subsections B & C repeat the exception for those from another country. B states that there can be an agreement between the Commissioner and foreign countries allowing reciprocal recognition of each others' licenses for non-residents. C simply seems to be a restatement of A's requirement be "duly licensed as a driver under a law requiring the licensing of drivers in his home . . . country" except it's a little more long winded about it. 

So, nonresidents can drive around Virginia with their foreign licenses as long as they remain nonresidents. And, that's where things get a little interesting, because Virginia was kind enough to define nonresident for us in § 46.2-100 which states a  "nonresident" is defined as "every person who is not domiciled in the Commonwealth, except: . . . 

(ii) a person who becomes engaged in a gainful occupation in the Commonwealth for a period exceeding 60 days shall be a resident for the purposes of this title except for the purposes of Chapter 3 [punishment for non-commercial licensing offenses]; (iii) a person other than . . . (b) a person who is serving a full-time church service or proselyting mission of not more than 36 months and who is not gainfully employed, who has actually resided in the Commonwealth for a period of six months, whether employed or not, or who has registered a motor vehicle, listing an address in the Commonwealth in the application for registration, shall be deemed a resident for the purposes of this title, except for the purposes of the Virginia Commercial Driver's License Act.

Subsection (ii) is strange in that it makes the gainfully employed foreigner a resident at sixty days for traffic enforcement purposes BUT then immediately defangs itself by exempting the now foreign resident from enforcement. This pushes us into subsection (iii) which is poorly written. It is a set of persons excepted from being a nonresident (a person) but immediately sets out exceptions to the exception (see the gray section above). The problem is that the statute does not clearly delineate where the second exception to the exception ends. A natural first reading could lead a reader to just keep adding each subsequent clause to the last exception to the exception. However, this falls apart pretty quickly remembering that this is actually describing an exception and therefore it has to be a positive description of someone who fits within the set. With that in mind, the logical place to end the exception to the exception is at the first comma after (b) because the clause immediately following it sets out who is in the exception to the nonresident set: those who have resided in Virginia for longer than six (6) months or registered a car in Virginia. 

All of which is a long winded way of saying whether you intend to reside in Virginia or not you need to get a Virginia driver's license before six (6) months if you move into the state and don't leave.

As a practical matter, the claim that a foreigner is a nonresident would have to be an affirmative defense. There is no way in the world that an LEO on the side of the road is going to know whether someone driving in Virginia with a license from the Republic of Erehwon has been here less than six months. He's going to charge her with driving without a license and that is going to have to be hashed out in court.1



 1 Yes, I realize the same analysis could apply to those licensed from other States. It would be nice if there were a written presumption that a holder of a state license is legitimate, but I've not found it in the statutes. However, I think that most LEO's in the real world already treat out of state license holders as legitimate unless given cause to believe otherwise (it happens). Additionally, I think that most out of state license holders will have things like registration of the vehicle from the other state and/or insurance indicating residence in another state - not always, but most times.