Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, March 11, 1995 TAG: 9503130064
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: SARAH HUNTLEY STAFF WRITER
DATELINE: LENGTH: Medium
The Roanoke Police Department issued a directive Friday, effective immediately, ordering its officers to stop seizing driver's licenses from drunken-driving suspects. Salem police will also be instructed to suspend enforcement of the law, Chief Harry Haskins said.
Both departments reached their decisions after prosecutors advised them that constitutional questions raised by a Roanoke County court ruling Wednesday put future driving-under-the-influence cases in peril.
``To me, it makes little sense to risk a DUI conviction for a seven-day revocation of a license,'' Commonwealth's Attorney Don Caldwell said.
Roanoke County General District Judge George W. Harris dismissed a drunken-driving charge against a Vinton woman Wednesday after her attorney argued she had already been punished for the crime. Cindy Poff, 36, had her license revoked when she was arrested, as called for by a Virginia law that went into effect Jan. 1.
The statute, intended to deter drunken driving, mandates the immediate revocation of DUI suspects' licenses for seven days. Under the law, the accused may request a court hearing to protest the revocation. That's where the double jeopardy argument comes in.
The Fifth Amendment to the U.S. Constitution prohibits double jeopardy - trying someone more than once for the same crime. Defense attorney Ray Ferris argues that revoking a suspect's license, though technically a civil action, amounts to punishment for the crime.
In Poff's case, Ferris said, the court sanctioned that punishment by refusing to overturn the revocation during a special hearing last week. That made subsequent prosecution on the DUI charge double jeopardy, he said.
Harris' decision is believed to be Virginia's first double jeopardy ruling in connection with the administrative license-revocation statute. A Farmville judge also has challenged the law, but on different grounds.
General District Judge William P. Hay Jr. ordered law enforcement officers in Prince Edward, Lunenburg and Charlotte counties not to enforce the law Wednesday, saying the statute violates the presumption that a suspect is innocent until proven guilty in a court of law.
``I think it is patently unconstitutional,'' Hay told the Richmond Times-Dispatch. ``The way the law is written, the officer makes all the decisions right on the spot. This is not a judicial hearing.''
Del. Richard Cranwell, D-Roanoke County, the legislation's chief patron, said the statute was drafted to withstand double jeopardy and due process challenges. The law calls for a civil revocation of the driver's license, not a judicial one, he said.
But Salem prosecutor Fred King said this week's judicial orders threaten the law's legitimacy.
``These judges are well-versed in the law, and the fact that these questions have been raised should not be taken lightly,'' he said. ``Both questions need to be touched on, because some individuals are ruling on due process and others are ruling on double jeopardy.''
King said he sent a memo to Police Chief Haskins advising him to hold off on enforcing the law until a decision is handed down by a circuit or appellate court.
``I certainly don't want to run counter to our prosecutor's advice,'' Haskins said Friday. ``We've always adopted the direction advised by the commonwealth's attorney, and we will follow him now.''
Not every prosecutor in the region is urging noncompliance with the statute.
Montgomery County Commonwealth's Attorney Phil Keith said license-revocation is a valuable deterrent to DUI. Keith argued that double jeopardy concerns do not apply to this law.
``As far as I'm concerned, that's a totally wrong ruling. There's no legal basis for this,'' he said. ``In the state of Virginia, driving has always been considered a privilege, not a right. We won't be advising police to make any changes in policy here until we see what the judges are going to do.''
And not all police departments are willing to ignore the law.
Roanoke County Police Chief John Cease said Thursday his officers will continue to revoke licenses, despite a recommendation by Commonwealth's Attorney Skip Burkart that the department wait until the issue has been resolved.
``We are going to do what the law commands that we do. I don't think we have a choice,'' Cease said. ``If we don't, we run the risk of being charged either with failure to act ... or blatant disobedience.''
by CNB