Virginia drivers are being charged and convicted of an offense that is not a crime under state law: driving without proof of insurance.

The General Assembly has debated the issue at least three times, but in each instance, a bill to require drivers to carry an insurance card or other proof of insurance has failed. Nonetheless, in several localities, drivers have been hit with hefty fines and court costs for failing to have proof of insurance, according to court records.

A Lynchburg lawyer was steamed when he was charged for not having an insurance card when he was stopped as he drove through Sussex County over Labor Day. He could have folded like some people do when a police officer issues a citation. But he went back to Sussex in November to fight and told the judge that he has been charged with a non-existent crime. The judge has not yet ruled in the case.

Virginia law does not even require a driver to have insurance. Owners can opt to pay a $500 uninsured motor vehicle fee to the Department of Motor Vehicles. Failure either to insure your car or pay the fee is a Class 3 misdemeanor, punishable by fines of up to $500, according to Virginia Code § 46.2-707.

The statute provides the same penalty for falsely verifying insurance and related infractions, but it does not make it an offense to drive without proof of auto insurance, lawyers confirmed.

Some Virginia police officers – both state and local – are misinformed about Virginia auto insurance law.

A state police spokesperson said troopers can and do charge drivers with failure to have proof of insurance under Code § 46.2-707.

State troopers routinely ask for a driver’s license, registration and insurance card during a traffic stop or crash investigation, according to Corinne N. Geller, Virginia State Police public relations director. Based on the response from the driver when asked about insurance, she said, troopers can either charge under Code § 46.2-707 or require the driver to use a form to provide proof of insurance to the DMV within 30 days.

Court records show local police have written tickets for “no proof of insurance” in Colonial Heights and Prince William, Sussex and Dinwiddie counties. One driver was fined $100 plus $10 in court costs after being found guilty in Sussex County in May.

A Richmond prosecutor acknowledged some insured drivers in that city are charged for failure to have an insurance card. The charge is dismissed when the driver brings the proof of insurance to court, the prosecutor said in an email forwarded by Commonwealth’s Attorney Michael Herring.

The Lynchburg lawyer charged in Sussex County, M. Paul Valois, decided to fight because the stakes are high for a conviction under Code § 46.2-707. The violation is a Class 3 misdemeanor, and making any false statement a “crime of moral turpitude,” Valois said. Once that conviction is on someone’s record, it could affect future employment or military service. For those reasons, Valois said, “I’ve got to fight it.”

There’s even more at stake. Other lawyers point out that a conviction under Code § 46.2-707 brings immediate license suspension by the DMV and requires payment of the $500 and proof of financial responsibility.

Valois may have a valid defense. Attorneys who reviewed the statute agreed it does not criminalize failure to have an insurance card in your car.

“Not having proof of insurance is not an offense in Virginia. It’s just incorrect,” said G. Barton Chucker of Richmond, a traffic defense lawyer.

Chucker also serves as a substitute judge hearing traffic cases in Richmond. He said the issue comes up every time he sits on the traffic court bench. He added he has seen a handful of police officers in Richmond who try to charge motorists with failing to have proof of insurance. He said he simply tells prosecutors, “It’s not the law.”

“The offense is not driving an uninsured motor vehicle,” agreed Lynchburg Commonwealth’s Attorney Michael R. Doucette. “The offense also is not failure to have proof of insurance while operating the vehicle on the highways. Virginia allows the operation of uninsured motor vehicles on the highways,” he said.

“Rather, the offense is having an uninsured motor vehicle and not paying the uninsured motorist fee of $500 per year,” Doucette said.

Chucker, Doucette and other attorneys agree that if a driver tells an officer there is no insurance on the car and he has not paid the $500 fee, the driver has earned himself a valid ticket.

“My guess as to where the confusion arises is everyone assumes that if a person had the $500 to pay the uninsured motorist fee, he would get at least a minimal insurance policy instead. So, if a motorist tells a law enforcement officer that he has no insurance, the officer presumes that he also has not paid the uninsured motorist fee,” Doucette said.

Doucette said requiring drivers to present either proof of insurance or proof of payment of the uninsured vehicle fee would go a long way to clear up the confusion.

Richmond traffic lawyer Bob Battle said it’s possible to make a mistake and misread the statute. “My guess is it is an officer who got out his little Virginia Code summary book and looked at the title of 46.2-707 and looked at the words ‘verification of insurance’ and missed the word ‘uninsured’ before ‘vehicle,’” Battle said.

And many drivers may be making a mistake as well, just assuming that proof of insurance is required. “People don’t know they don’t have to show the insurance card,” said Fredericksburg traffic lawyer Andrew F. Flusche.