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

DATE: SATURDAY, April 1, 1995                   TAG: 9504030049
SECTION: VIRGINIA                    PAGE: C-1   EDITION: METRO 
SOURCE: SARAH HUNTLEY STAFF WRITER
DATELINE:                                 LENGTH: Medium

ATTORNEY GENERAL WANTS BLOCK ON DUI LAW SET ASIDE

The request, which was released March 24, was Gilmore's first public statement on the various legal and constitutional questions raised last month by judges who challenged the state's new license revocation law.

On March 8, Farmville General District Judge William P. Hay Jr. ruled the law unconstitutional because it violates the legal principle that a suspect is presumed innocent until proven guilty. Hay ordered law enforcement agencies in Prince Edward, Lunenburg and Charlotte counties not to enforce it.

Under the law, which went into effect Jan. 1, police officers must seize a suspected drunken driver's license for seven days if the motorist's blood-alcohol content, as measured by a breath test, is greater than 0.08 percent, or if the suspect refuses to submit to a breath test. The driver has the right to request a prompt hearing to protest the revocation of the license.

"The safety of our citizens on Virginia's highways is of paramount importance," Gilmore said. "To immediately remove from the highways those individuals who choose to drive while impaired by alcohol is a mandated administrative response to ensure public safety."

The attorney general noted that 35 other states have similar revocation laws, many of which have withstood court challenges.

"Virginia, as have the majority of states, realizes that operating a motor vehicle is a privilege, one that can be lost by an individual's actions," he said.

No date has been set for a hearing on Gilmore's request, which applies only to the constitutional conflict in Hay's jurisdiction.

A ruling by Roanoke County General District Judge George W. Harris Jr. has also thrown the license revocation law into controversy. His decision, however, was made on different grounds.

Harris dismissed a DUI charge against a Vinton woman because he said it would be double jeopardy to prosecute and punish her after her license had been revoked. The Fifth Amendment prohibits double jeopardy - trying the same person for the same crime more than once.

Because Harris' decision put future DUI prosecutions in peril, Roanoke and Salem police took the advice of their commonwealth's attorneys and stopped revoking licenses. Roanoke County police, however, refused to ignore the law.

Gilmore made no specific mention of Harris' ruling, except to say that a Loudoun County general district judge ruled that double jeopardy was not a valid defense.

"Our state police, our local law enforcement officers and our commonwealth's attorneys understandably may be confused by conflicting rulings," Gilmore said. "But until Virginia's higher appellate courts rule on the issue, enforcement must continue. We simply cannot allow motorists who drink and drive to endanger the lives of our citizens."

A circuit judge in Henrico County also upheld the law last week. Judge James E. Kulp concluded that double jeopardy was not an issue because administrative license revocation, under Virginia's law, was not intended to be a form of punishment.