Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, July 27, 1995 TAG: 9507270021
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: SARAH HUNTLEY STAFF WRITER
DATELINE: LENGTH: Medium
A Roanoke County circuit judge issued a 14-page decision Wednesday that rejects a host of constitutional challenges to Virginia's newest get-tough-on-DUI law.
Ruling in 10 drunken-driving cases, all of which were on appeal from General District Court, Judge Roy B. Willett quashed defense attorneys' arguments that the administrative license revocation law posed double jeopardy and due process dilemmas.
The state's license revocation statute calls for the immediate seven-day suspension of a drunken-driving suspect's license if the driver declines to take a breath test or registers a 0.08 percent or higher blood-alcohol content.
Since the law went into effect Jan. 1, defense attorneys have argued that the statute is rife with problems. But Roanoke County was the first Virginia jurisdiction to grapple with the double jeopardy dilemma.
In March, General District Judge George W. Harris Jr. threw out a DUI case against Vinton resident Cindy Poff, ruling that she already had been punished because officers revoked her license for seven days.
Before Harris' ruling, Poff's defense attorney, Ray Ferris, had unsuccessfully challenged the revocation in a General District Court hearing.
Harris said seeking further punishment would violate the Fifth Amendment, which prohibits double jeopardy - trying someone for the same crime more than once.
In Wednesday's decision, Willett overturned Harris' ruling, stating that the revocation hearing is part of "one, ongoing procedure."
"The license suspension and later prosecution [for DUI] are not separate proceedings for double-jeopardy purposes," Willett said in his decision. "The defendants are not in jeopardy at the suspension hearing. That hearing, if requested, serves to review the administrative suspension of the driving privilege, and is simply one part of the entire statutory proceeding."
Willett also ruled that the revocation of a driver's license does not constitute punishment. An operator's license is a privilege, not a right, he said, and the administrative revocation of a suspect's license is "civil and not criminal in nature."
Not surprisingly, Commonwealth's Attorney Skip Burkart was pleased with Wednesday's decision.
"He's a brilliant judge," Burkart quipped Wednesday, of Willett. "I don't think double jeopardy is a valid argument to use in Roanoke County anymore."
Harris' double jeopardy ruling had created a quandary for police and prosecutors. At the urging of the commonwealth's attorney, the Roanoke County Police Department had reluctantly stopped revoking the licenses of suspects until the issue could be resolved.
Burkart said he would review Willett's decision more fully and decide today how to advise the Police Department.
Defense attorneys involved in the appeals were less than enthusiastic.
"Given [previous U.S. Supreme Court decisions], it is inconceivable to me that taking someone's driver's license at the scene for DUI could be called anything but a punishment," attorney Chris Kowalczuk said. "It doesn't take someone seven days to sober up. This is clearly a punitive measure, and I think Judge Willett will be overturned - if not by the state courts, then ultimately by the United States Supreme Court."
The state Court of Appeals has agreed to hear a Henrico County case that raises the issue. A decision in that case will have ramifications statewide.
Until then, defense attorneys in Roanoke County are likely to continue to put their objections on the record. Ferris, who successfully argued the Poff case before Harris, said he has an obligation to represent his clients as completely as he can, despite the decision.
"I respectfully disagree with most of Judge Willett's conclusions," Ferris said. "The revocation is clearly punishment. Most of the other courts that have examined this issue, while ruling it is not double jeopardy, have at least held that it's a form of punishment."
by CNB