The VLW Blog

The controversy over Virginia’s new “civil remedial fees” for “abusive drivers” has generated a lot of ink in the last two months.

The Washington Post has made the brouhaha a little personal for the commonwealth’s lawmakers.

Quite a few public officials, from Gov. Tim Kaine to Speaker Bill Howell to other members of the General Assembly, have been given traffic tickets, mostly for speeding, over the past few years. Not indicated is whether they were rushing to Richmond to get the people’s business done or fleeing from the capital to get the hell out of Dodge.

Would these lawmakers qualify as “abusive drivers” and get nailed for the hefty fees?

Actually, probably not, since many of the offenses detailed in the Post piece fall just this side of reckless driving.

A Kaine spokesman, while denying the governor would be classified as an “abusive driver,” tries to take the Tim-as-everyman approach: “Like many Virginians, the Governor has been cited for speeding…”

“Like many Virginians”? The guy must have been talking about all the officials named in the Post article.

The next battleground for the fight over the commonwealth’s new scheme of “civil remedial fees” for “abusive drivers” will be Arlington.

Maybe.

Charles Mason, a Navy veteran, has been charged with driving 75 mph in a 55 mph zone. He could be hit for a fee of $1,050 if convicted. He is scheduled to appear in Arlington General District Court on Monday, and his lawyer, Kyle Courtnall, has filed a motion testing the constitutionality of the fees.

The Washington Times had an item Wednesday and the Washington Post has the story this morning.

So why the “maybe” above? As Del. Dave Albo, a former traffic court prosecutor, told both Washington newspapers, and as other traffic lawyers told us for our story in this coming Monday’s edition, in many if not most traffic courts, standard practice would be to knock this charge down to improper driving or speeding, offenses not impacted by the new fee scheme.

Courtnall vows to press forward. Stay tuned.

The first circuit judge to consider the constitutionality of Virginia’s civil remedial fees said he hopes to rule next week.

Henrico Judge L.A. Harris Jr. heard brief arguments today from prosecutor Duncan P. Reid and from defense attorney Craig S. Cooley, who is representing Anthony O. Price along with Esther J. Windmueller.

General District Judge Archer L. Yeatts III convicted Price last week of a fifth offense of driving on a suspended license but refused to impose $750 in civil fees because he found them unconstitutional.

Yeatts said he could conceive of no rational basis for applying the fees to Virginia residents but not to out-of-state drivers in light of the legislative purpose set forth in Virginia Code § 46.2-206.1: “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens on the Commonwealth.”

Harris then granted the expedited review required by Code § 16.1-131.1.

He asked Cooley today whether the legislature could have been rational in assuming that residents use state roads more than non-residents and that the state would have a much greater chance of collecting the fees from Virginians.

Cooley responded that there is “no reason to distinguish between an out-of-state and an in-state dangerous driver” in the context of providing money for transportation.

Two days. Two rulings that Virginia’s civil remedial fees are unconstitutional.

Yesterday, it was Henrico General District Judge Archer L. Yeatts III, who acknowledged that he is obliged to enforce the law if there is any rational basis for it. However, “The court rejects the speculations postulated by the Commonwealth, and mindful of its of its own obligation to do so, has exhausted its speculation quotient in trying to conceive of any others,” Yeatts wrote.

Today it was Richmond General District Judge Thomas O. Jones, who said, “The court finds that there is no rational speculation to support the distinction between [resident] and non-resident ‘dangerous’ drivers where the purpose of the statute is to generate revenue.” He called the constitutional analysis “an absolute no-brainer.”

A more complete story of Yeatts’ case and a link to his opinion are at www.valawyersweekly.com. The two rulings will go to the respective circuit courts for the expedited review mandated by Code § 16.1-131.1.

Meanwhile, as The Daily Progress reports in an article by Bob Gibson, outrage at the fees continues to mount with 171,000 signatures on online petitions to remove them, and politicians up for re-election in November talking about “tweaking” or repealing them.

McLean lawyer Corinne Magee has a legal argument that the new civil remedial fees for abusive drivers are unconstitutional, and she isn’t keeping it a secret.

She has made it available to her colleagues in the Virginia Association of Criminal Defense Lawyers — and to Virginia Lawyers Weekly. Click here for a copy of her draft motion, which includes argument and citations.

The motion contends that the fees are unconstitutional for two reasons: they are a separate punishment and therefore violate the Double Jeopardy Clause, and they violate the Equal Protection Clause because they apply only to Virginians and not to out-of-state residents.

This coming Monday’s paper (the 7/16 issue) has an article about the fees and the criticisms and tactics of a general district court clerk and traffic defense lawyers.

As we noted on this blog in a post last month, the 2007 General Assembly set up a system to whack bad drivers with new hefty fines in the transportation bill.

Most of the new-statute stories in the general press before the July 1 effective date have focused on the new fees. See, for example, pieces in The Washington Post and Richmond Times-Dispatch.

The Supreme Court of Virginia must have been getting a lot of traffic at its Web site. The new civil remedial fee system has been declared a hot topic over there. The court provides a link to its useful primer on the new scheme, which we again recommend.

In an ongoing, never-ending effort to figure out how to generate money for transportation, the 2007 General Assembly came up with at least a partial source for funds: bad drivers.

In House Bill 3202, the transportation funding bill, the Assembly established a new system of “civil remedial fees,” the purpose of which is “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth.”

The laws establishing these fees will take effect July 1.

The Office of the Executive Secretary of the Supreme Court has put together a very nice explanatory guide for the public. It should be a good starting point for a lawyer having to explain to a client charged with DUI why said client will be paying a total of $2,250 to the Department of Motor Vehicles should he be convicted.