THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, March 11, 1995 TAG: 9503110316
SECTION: LOCAL PAGE: B2 EDITION: FINAL
SOURCE: ASSOCIATED PRESS
DATELINE: SALEM LENGTH: Medium: 58 lines
A drunken-driving suspect got some help in court from an unlikely source - Virginia's latest DUI law.
A Roanoke County judge dismissed a charge of driving under the influence against Cindy Poff, ruling that prosecuting her after her license had been suspended would be unconstitutional.
Poff, 36, was charged with drunken driving on Feb. 26. In keeping with legislation that passed during last year's General Assembly session and went into effect Jan. 1, her operator's license was suspended for seven days.
General District Judge George W. Harris Jr. ruled Wednesday that putting Poff on trial for DUI after her license was suspended would amount to double jeopardy. The Fifth Amendment to the U.S. Constitution prohibits double jeopardy - or trying someone for the same crime more than once.
The DUI law also has run into trouble in Southside Virginia, but on different grounds. A judge in Farmville ordered police in Prince Edward, Lunenburg and Charlotte counties not to enforce the law.
``I think it is patently unconstitutional. We are not going to enforce it in this district until it has been ruled on'' by a higher court, General District Judge William P. Hay Jr. said Wednesday. ``The way this law is written, the officer makes all the decisions right on the spot. That is not a judicial hearing.''
Hay said officers will continue to enforce the old law, so that people charged with driving under the influence would appear in court before their licenses could be suspended.
Defense attorneys in other states with license-revocation laws have used the double jeopardy argument to win DUI dismissals, but Wednesday's decision is believed to be the first time a Virginia judge has ruled this way.
And until a higher court resolves the issue, prosecutors say it won't be the last.
``If these cases come before Judge Harris, he's just going to keep dismissing them,'' Commonwealth's Attorney Skip Burkart said Thursday. ``It's put us in a bit of a quandary.''
After Harris' decision, Burkart recommended that Roanoke County police stop revoking licenses.
``I would much rather be able to try the case on the DUI charge than have administrative license suspension in which the only punishment is that drivers lose their licenses for a maximum of a week,'' he said.
Police Chief John Cease said, however, that his department must enforce the law.
``We are really in a bind,'' Cease said. ``As we understand it, the law is mandatory. It doesn't say `may' or `can.' When you make a drunk-driving arrest, it says an officer `shall' initiate the administrative revocation process. I don't think we have a choice.''
KEYWORDS: DRUNKEN DRIVING by CNB