Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, May 2, 1995 TAG: 9505020129
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Medium
The seven-day license suspension law has been under attack in Virginia since shortly after it became effective Jan. 1, and judges across the state have given conflicting rulings on whether it is constitutionally sound.
Lawyers have argued that suspending someone's license for seven days after a DUI arrest, then prosecuting the person later for drunken driving, amounts to double jeopardy.
The argument of double jeopardy - a provision in the Fifth Amendment of the U.S. Constitution that prohibits someone from being prosecuted or punished twice for the same crime - was enough to convince a Roanoke County judge to dismiss a DUI charge in March.
But in a written opinion released Monday, a Roanoke judge took the opposite position.
Suspending the license of a DUI suspect before his or her trial does not amount to double jeopardy, General District Judge William Broadhurst wrote, because both the suspension and subsequent DUI prosecution are part of the same proceeding.
Although a definitive ruling probably will have to come from a higher court months from now, Broadhurst's decision clears the way for Roanoke police to renew enforcement of the seven-day license suspensions.
Following the decision in Roanoke County by Judge George Harris - which, as one of the first rulings on the double jeopardy issue, sparked statewide confusion over the law - Roanoke Commonwealth's Attorney Donald Caldwell advised city police to stop using the law.
Shortly after Broadhurst's four-page ruling was released Monday, Caldwell authorized city police to resume the license suspensions. But prosecutors acknowledge that the matter is far from over.
"This is probably just the first round," Assistant Commonwealth's Attorney Wanda DeWease said.
The next step likely would come if someone convicted of DUI under Broadhurst's ruling appeals to Roanoke Circuit Court. The next appeal would be to the Virginia Court of Appeals, and from there the case could be taken to the Virginia Supreme Court.
The suspension law, passed last year by the General Assembly as part of a package of tough DUI laws, allows police to immediately take someone's driver's license for seven days after the person is charged with drunken driving.
Under the law, a suspect can appear in General District Court and ask that his or her license be restored earlier. That's where the double jeopardy argument comes in - with lawyers saying that once a hearing was held on the suspension, a second hearing on the DUI charge would violate the suspect's constitutional rights.
Ruling in nine DUI cases that had been consolidated for arguments on the double jeopardy issue, Broadhurst agreed with defense attorneys on one point - that the suspension of someone's driver's license was a form of punishment.
But, he continued, the suspension "occurs not as a result of an independent proceeding, but instead as an incident of the DUI prosecution."
In discounting the double jeopardy argument, Broadhurst also noted that the primary purpose of the protection was to prevent prosecutors from attempting to obtain greater punishment in a second proceeding than in the first.
That does not apply to the suspension law, the judge wrote, because it is enforced uniformly by police, not prosecutors.
Until Broadhurst's ruling, the seven-day suspension law had not been enforced in recent weeks in the Roanoke Valley.
In Roanoke County, Judges Harris and John Apostolou have offered conflicting decisions on the double jeopardy issue, with Apostolou taking essentially the same position that Broadhurst did.
Although Roanoke County police did not initially agree to stop enforcing the law - as did Roanoke and Salem police at the urging of prosecutors - they have since decided to hold off on the suspensions, according to Commonwealth's Attorney Skip Burkart.
Burkart said the decision was reached after one of Apostolou's convictions was appealed to Roanoke County Circuit Court. A hearing scheduled for June 10 could provide a new ruling on the double jeopardy issue.
In Salem, Commonwealth's Attorney Fred King said he is continuing to request that police not use the suspension law until a Circuit Court judge addresses the matter.
Even then, defense lawyers say, the matter will be far from over.
"This does not close the book," said Ray Ferris, who argued successfully in the Roanoke County case before Harris, only to join several other lawyers who were disappointed with Broadhurst's ruling in the city. "This is just chapter three in a 20-chapter book."
by CNB