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Bad driver fees are unconstitutional, county judge says

By CHRISTINA NUCKOLS, The Virginian-Pilot
August 3, 2007

RICHMOND

Stiff new fees for bad drivers are unconstitutional because they apply only to state residents, a Henrico County judge ruled Thursday.

The court opinion has no effect on drivers in Hampton Roads, but it represents a serious legal challenge to the month-old law passed by the General Assembly to generate about $65 million for road maintenance.

The case was immediately appealed to Henrico's circuit court. One top Republican lawmaker predicted that, if the higher court agrees the fees are unconstitutional, the legislature will be forced to call a special session to fix the law. "It might require that we take action sooner rather than later," said state Sen. Kenneth Stolle, R-Virginia Beach. " If the circuit court rules it violates the constitution, then we have a problem."

The fees were challenged by Anthony Price, a Henrico County man who has been charged five times for driving on a suspended license. Henrico General District Court Judge Archer Yeatts concluded that Price is not required to pay the $750 fee imposed by the new state law.

Other legislative leaders warned it's too early to begin preparing for a special session.

House Majority Leader Morgan Griffith, R-Salem, noted that lower courts a decade ago ruled unconstitutional a state law revoking the licenses of people arrested on drunken driving charges, but the penalty was upheld on appeal.

Gov. Timothy M. Kaine and Attorney General Robert McDonnell declined to comment on the specifics of pending litigation. Both men signaled they are open to changes that would expand the law to cover out-of-state drivers.

The state's constitution requires that all revenues from court fines go into a fund earmarked for school construction and retirement benefits for teachers. It would take three years and a voter referendum to change the constitution.

Because lawmakers wanted to spend the new money on road maintenance, they set up the new penalties as civil fees that must be paid as a requirement for having a driver's license.

Each state issues licenses for its own residents, making it difficult for Virginia to enforce the new fees on out-of-state residents. But some legislators said they believe there are ways to collect from non residents.

Griffith said the fees could be attached as liens to real estate owned by non-Virginia offenders, but that would require a court hearing in the state where they live. He said the cost for such a hearing would typically exceed the amount of the fee.

Other lawmakers argued that the new fees are so flawed that they are beyond repair.

"The whole thing should be scrapped," said Del. Kenneth Melvin, D-Portsmouth, who said many low-income drivers will lose their licenses because they cannot afford to pay the fees.

"People who have their licenses suspended are not going to go to the bus stop the next day," Melvin said. "This is going to cause an army of people to be driving on a suspended license, and if they don't have a license, they don't have insurance. This is going to make all of our insurance rates go up."

Virginia Beach's chief prosecutor Harvey Bryant said Thursday's ruling will not affect how prosecutors handle the abusive driver laws. From a legal standpoint, he said no decision by a general district court judge will be binding on any other judge in any other jurisdiction.

"We'll still be able to prosecute all those cases," Bryant said.

Staff writer Duane Bourne and The Associated Press contributed to this report.

Christina Nuckols, (804) 697-1562, christina.nuckols@pilotonline.com