ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, September 14, 1996 TAG: 9609160045
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
NOTE: Above
VIRGINIA'S HIGHEST COURT ruled that a new drunken-driving law does not violate the Fifth Amendment.
Suspending the driver's license of a suspected drunken driver twice for one offense does not violate the constitutional bar against double jeopardy, the Virginia Supreme Court ruled Friday.
The decision finally settles a controversy over a tough new drunken-driving law that met one of its first challenges last year in Roanoke County.
The law, commonly referred to as "administrative suspension," allows police to take someone's driver's license for seven days immediately after he is charged with drunken driving or refusing to take a breath or blood test for alcohol.
Because the motorist faces a second license suspension - not to mention a fine and jail sentence - when the drunken-driving charge goes to trial, lawyers in Roanoke and across the state argued that the law subjects the driver to double jeopardy.
The Fifth Amendment protects a defendant from double jeopardy - being prosecuted or punished twice for the same offense.
In March 1995, a Roanoke County judge dismissed a drunken-driving charge against a Vinton woman after her attorney raised the double jeopardy issue. The issue quickly caused statewide confusion, with other judges ruling the opposite way as lawyers rushed to make their own double jeopardy arguments.
Roanoke prosecutors asked police to stop seizing licenses under the seven-day suspension rule until a clear ruling emerged. When a city judge rejected the double jeopardy argument several months later, police went back to using the law.
The Virginia Court of Appeals upheld the law last October, ruling that double jeopardy does not apply because suspending someone's license does not fit the legal definition of punishment. But some defense lawyers did not consider the case closed until there was a decision from the state's highest court.
When that ruling finally came Friday, it was under slightly different circumstances. A Richmond man who raised the argument had his license suspended for seven days and was later convicted of refusing to take a breath test, not of drunken driving.
But the Supreme Court's decision would likely have been the same if the case had involved drunken driving, said Ray Ferris, a Roanoke lawyer who first raised the double jeopardy issue in Roanoke County last year.
"In my opinion, the Virginia Supreme Court was sending a very clear signal" that the double jeopardy argument does not apply for either drunken driving or refusal charges, Ferris said.
Thomas Robinson, a Richmond lawyer who represented George Brame in the case decided by the Supreme Court, agreed that the high court's ruling is likely the last word on the double jeopardy argument. "It's dead," Robinson said.
Brame had his license suspended for seven days after he was charged with drunken driving and refusing to take a breath test. His license was suspended again for a year after he was convicted of failing to take a breath test. The drunken-driving charge was dismissed.
In rejecting Brame's appeal, the Supreme Court adopted the same rationale that was used by the Court of Appeals - that the seven-day license suspension was more remedial than punitive. In other words, it was intended to protect other drivers at the time of the suspect's arrest more than to punish the suspect.
In a decision written by Chief Justice Harry Carrico, the Supreme Court said the purpose of the law - to immediately remove a drunken driver from the highway - is so clear and compelling that it overrides any incidental punitive effect it might have.
"Accordingly, we have no difficulty in holding Brame's rights under the double jeopardy clause were not violated by the subsequent judicial suspension of his license for a year," Carrico wrote.
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