Under Virginia law, every driver is required to have liability insurance on his or her car, or else pay an administrative fee of $500 that goes into an uninsured motorists’ fund. Although it is always a good idea to carry proof of liability insurance with you, it is not actually a crime NOT to have proof of liability insurance with you. Unless, that is, you are driving in the City of Colonial Heights or in Prince William, Sussex and Dinwiddie counties. There, if you fail to produce an insurance card when you are stopped, you are given a ticket as though you had no insurance, when you may simply have had no card with you at the time. You get ticketed under Va. Code §46.2-707, which provides that you can be guilty of a Class 3 misdemeanor if you own and operate or permit the operation of a car that is licensed in Virginia but not insured, or if you falsely claim to DMV that you have insurance. It is NOT a crime to forget to carry your card with you.
After Lynchburg attorney M. Paul Valois was ticketed in Sussex County for violating this provision, he was appalled to learn not only that the officers there were writing tickets for crimes that don’t exist, but that the Courts then required the people thus charged to come to court with evidence to prove their innocence — in violation of the fundamental principle that it is up to the government to prove you guilty rather than it being up to you to prove your innocence. And this has led to a major hullaballoo, first in the legal newspaper Virginia Lawyers Weekly and now in the mainstream media as well.
Here is how this situation is supposed to work.
You are stopped by a police officer. She asks you for your license and registration. Sometimes she will also ask about proof of insurance. If you know where your insurance card is, you hand it over. If you are like many of us, you have an outdated card in your glove compartment, because the last time that State Farm renewed your policy you forgot to put the new card in the glove compartment. Or you are driving someone else’s car and you don’t know where they keep the proof of insurance. Let’s say you can’t find a card. The police officer may then ask, “Do you have insurance?” If you say, “Yes, I just can’t find the card,” that should be the end of it. There is no provision of law that requires you to carry proof of insurance. In those counties in southeast Virginia, you might get a ticket anyway, but in most of the state they will let you go your way.
If you say, “No, I don’t,” then the officer is permitted to write you a ticket for violating §46.2-707, though many officers will just give a warning at that point.
If you receive a ticket for violating §46.2-707 based on your statement, and you end up going to court, here is the most important piece of advice I can give — DO NOT plead guilty and DO NOT testify. If the judge got his law degree from an accredited law school and not by writing off to the address on the back of a cereal box, he should recognize that you cannot be convicted based on your statement alone, where the government does not introduce proof that corroborates that statement. As a practical matter, to prove its case, the government would have to produce a certificate from every insurer licensed to write insurance policies in the state saying, “We have no insurance on this vehicle.” I understand that DMV has the ability to produce a certificate that says, “There is no insurance on this vehicle, according to our official records,” but I have not seen any prosecutor try to use such a certificate. In the absence of some documentary evidence that proves that you have no insurance, your statement alone should not be sufficient to convict. This is a rule called the corpus delicti rule. This rule of law, developed hundreds of years ago, says that you cannot be convicted of a crime based on your confession alone. So don’t testify, and you should be acquitted. Some prosecutors and police officers apparently believe that they have the power to compel you to prove your innocence — they believe that the fact that you don’t produce an insurance card somehow puts the burden on you to produce one later. That is simply not the law.
