Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, March 10, 1995 TAG: 9503100079
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: SARAH HUNTLEY STAFF WRITER
DATELINE: LENGTH: Long
A Roanoke County judge dismissed a charge of driving under the influence against 36-year-old Cindy Poff, ruling that prosecuting her after she had been punished under the state's license-revocation law would be unconstitutional.
Poff was charged with drunken driving on Feb. 26. In keeping with legislation that passed during last year's General Assembly session and went into effect Jan. 1, her operator's license was revoked for seven days.
General District Judge George W. Harris Jr. ruled Wednesday that putting Poff on trial for DUI after her license was suspended would amount to double jeopardy. The Fifth Amendment to the U.S. Constitution prohibits double jeopardy - trying someone for the same crime more than once.
Defense attorneys in other states with license-revocation laws have used the double jeopardy argument to win DUI dismissals, but Wednesday's decision is believed to be the first time a Virginia judge has ruled this way.
And until a higher court resolves the issue, local prosecutors say it won't be the last.
"If these cases come before Judge Harris, he's just going to keep dismissing them," Roanoke County Commonwealth's Attorney Skip Burkart said Thursday. "It's put us in a bit of a quandary."
After Harris' decision, Burkart recommended that Roanoke County police stop revoking licenses.
"I would much rather be able to try the case on the DUI charge than have administrative license suspension in which the only punishment is that drivers lose their licenses for a maximum of a week," he said.
Police Chief John Cease said, however, that his department must enforce the law.
"We are really in a bind," Cease said. "As we understand it, the law is mandatory. It doesn't say 'may' or 'can.' When you make a drunk-driving arrest, it says an officer 'shall' initiate the administrative revocation process. I don't think we have a choice.
"This decision really begs a big issue on a statewide basis," he said. "The legislature decided to tighten the drunk-driving statutes, but if the law can be used to support dismissals, then [the statutes] haven't been tightened at all."
Roanoke County officers will continue to seize licenses when a driver takes a breath test and registers a 0.08 percent or higher blood alcohol content. Under the law, defendants may challenge the suspension in a General District Court hearing. If the driver can prove there wasn't probable cause for the DUI arrest, the license will be returned.
Poff's attorney, Ray Ferris, argued in a court hearing last week that his client's license should not have been revoked. Harris upheld the revocation but dismissed the DUI charge when the case came before him Wednesday.
"This is something that is either going to have to be settled by the General Assembly or the appellate court. The law punishes people for being accused of driving under the influence and then allows them to be punished again after they are convicted of DUI," Ferris said.
Del. Richard Cranwell, D-Roanoke County, was the chief patron of the legislation, which was drafted by a subcommittee of the House Courts of Justice Committee.
He said Thursday the statute was written to pass judicial muster, in terms of both double jeopardy and due process concerns. Some opponents of the legislation had argued that the law itself was unconstitutional because it violates the legal assumption that a suspect is innocent until proven guilty.
"We structured our statute to avoid those things, but ultimately, lawyers are going to make the arguments. That's what we have courts for," Cranwell said. "My feeling is that the double jeopardy argument won't withstand scrutiny on appeal."
Under the statute, the license revocation is an "administrative act, not a judicial one," Cranwell said.
Del. Clifton "Chip" Woodrum, D-Roanoke, agreed, saying, "You have the criminal law on one hand and the civil law on the other. ... That should not constitute double jeopardy. It is an ingenious argument, but I don't believe it's going to find universal acceptance," he said.
But Ferris argues that the license revocation, though technically a civil forfeiture, has "penal consequences."
"It's pure punishment," he said. "It doesn't take someone seven days to sober up."
Harris declined to comment on the case, but said, through his clerk, that he based his decision on a Dec. 19 story in Lawyers Weekly USA. The story outlines an Ohio court ruling that upheld the double jeopardy argument in a drunken-driving/license-revocation case.
Del. Morgan Griffith, R-Salem, said lawmakers may have to revisit the issue to clear up the turmoil, even if that means getting the governor to call an emergency legislative session in April.
"If this holds up, then, boy, we're going to have to do something," Griffith said. "We may have statutorily elected to suspend drunk drivers' licenses instead of prosecuting them for DUI. That's a problem, and it certainly wasn't our intent."
John Markey, spokesman for the advocacy group People Against Impaired Drivers, said his organization will monitor developments closely.
"I'm just shocked that any judge would take that position," Markey said.
Commonwealth's Attorney Burkart has asked Attorney General Jim Gilmore to issue an opinion on the matter. It also is possible that some local cases could be appealed to a higher court, Burkart said.
A second Roanoke County General District Judge, John L. Apostolou, rejected the double jeopardy argument in several recent DUI cases, Burkart said.
So far, no Roanoke city judge has ruled on the double jeopardy issue. After the argument was raised recently, General District Judge William Broadhurst delayed a decision and asked defense attorney Richard Lawrence and Assistant Commonwealth's Attorney Alice Ekirch to file written arguments.
A decision is not expected for at least a month, Ekirch said.
Staff writer Laurence Hammack contributed to this story.
by CNB