
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, March 21, 1995                   TAG: 9503210085
SECTION: VIRGINIA                    PAGE: C-1   EDITION: METRO 
SOURCE: RAY REED
DATELINE:                                 LENGTH: Medium

VIRGINIA NOT ALONE IN DUI DILEMMA

Q: I just read that Virginia's DUI law may be in jeopardy. Why are qualified lawyers who are making Virginia laws so inept at passing constitutionally sound legislation? Do they lack knowledge of the Constitution, or do they pass them just to be tested and keep lawyers funded through lawsuits?

K.B., Roanoke

A: The legislators don't deserve all the blame, although one-third of them are lawyers.

They're adequate on constitutional law. And some lawmakers also have been adept at passing laws to benefit their law practices. It's quite a reach, though, to credit them with anticipating this DUI dilemma. Up to 36 other states also may be in Virginia's position.

Their laws, like Virginia's, allow administrative suspension of a license when a driver fails a breath test. Federal highway funding encourages the practice.

Events in Montana and Ohio courts created the legal uncertainty faced now, and defense lawyers around the country have claimed in hundreds of cases that suspending a driver's license, and later putting the person on trial for drunken driving, amounts to double jeopardy - punishing a person twice for the same offense.

This strategy first succeeded in Youngstown, Ohio, when a judge upheld the double-jeopardy argument on Nov. 16.

Virginia's administrative suspension law was passed by the legislators last March and took effect Jan. 1.

Keep in mind: Virginia's law hasn't been tested in the appeals process. It could stand up, though most legal eagles think the double-jeopardy argument is strong.

According to a summary in the newspaper Lawyers Weekly USA, the double-jeopardy argument wins if the purpose of the law was punishment. But if an appeals court finds the law's intent was solely to remedy a driving risk, administrative suspension might survive.

For now, Virginia's law still can be used to suspend a drunken driver's license for up to seven days. If the license isn't suspended immediately, a court may find the driver guilty and take the license for a longer period.

The second legal precedent stemmed from a Montana drug case that the U.S. Supreme Court decided in 1994.

Defendants were convicted of marijuana violations and then required to pay a tax on their illicit earnings. The high court said they had been punished twice for the same crime.

The Montana ruling also upset the grounds the government has used to take cars, houses and boats from drug dealers because they were ill-gotten gains.

Got a question about something that might affect other people, too? Something you've come across and wondered about? Give us a call at 981-3118. Maybe we can find the answer.

by CNB