Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, October 26, 1995 TAG: 9510260073
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 took effect Jan. 1, with lawyers in the Roanoke Valley and across the state arguing that it is unconstitutional.
Suspending someone's license for seven days immediately after an arrest and then prosecuting that person later for drunken driving amounts to double jeopardy, lawyers have maintained.
But the appeals court rejected that argument Tuesday in a Henrico County case, ruling that the license suspension is not a punishment, so double jeopardy does not apply. Double jeopardy is a provision in the Fifth Amendment of the U.S. Constitution that prohibits someone from being prosecuted or punished twice for the same crime.
Lawyers said the ruling may settle a legal issue that has caused confusion in the Roanoke Valley.
"This decision is pretty much going to be the guiding light until the Virginia Supreme Court decides whether they want to tackle the issue," said Roanoke defense attorney Ray Ferris.
Ferris was one of the first lawyers in the state to raise the double jeopardy issue successfully. He did so in March, when he persuaded Roanoke County General District Judge George Harris to dismiss a DUI charge against a woman whose license had been suspended under the law.
After that ruling, Roanoke Commonwealth's Attorney Donald Caldwell asked police to stop seizing licenses until a clear ruling emerged. Judge William Broadhurst rejected the double jeopardy argument several months later in a written opinion, and Caldwell authorized police to resume suspensions.
Several cases on appeal had been on hold awaiting the appeals court's decision, and Ferris predicted that local judges would follow the court's precedent in rejecting the appeals.
But he said other avenues may be used to challenge the law, and he expressed surprise at the ruling.
"I am surprised that the court ruled that taking someone's license for seven days is not punishment," he said, "and I would challenge anyone to get that same decision from someone whose driver's license has been revoked with no judicial process."
Ferris said the double jeopardy issue, which also has been raised in other states, may have to go to the U.S. Supreme Court before it is ultimately settled.
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 sooner. That's where the double jeopardy argument comes in - with lawyers saying that once a hearing has been held on the suspension, a second hearing and punishment on the DUI charge would violate the suspect's constitutional rights.
But Chief Judge Norman K. Moon, writing for the majority in an 8-1 decision, said suspension of a driver's license has a "remedial" purpose - protecting the public from drunken drivers - and therefore does not constitute punishment.
Moon wrote that the state Supreme Court has recognized that the purpose of revoking a driver's license is "not to punish the offender, but to remove from the highways an operator who is a potential danger to other users."
by CNB