THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, April 11, 1995 TAG: 9504110361
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: ASSOCIATED PRESS
DATELINE: ROANOKE LENGTH: Medium: 67 lines
Lawyers in more than one-third of Virginia's counties and cities are defending alleged drunken drivers by putting the state's tough new drunken driving law on trial, an Associated Press survey found.
Legal challenges have been brought in 48 of the state's 134 localities against a law that requires law-enforcement officers to automatically suspend the license of people arrested for driving under the influence.
Even some prosecutors believe the law is flawed. Commonwealth's attorneys in six Virginia localities have advised police not to enforce the law that they say could result in hundreds of drunken driving cases being dismissed.
The AP canvassed prosecutors and other law-enforcement officials between March 20 and April 4 about challenges that have arisen to the law after two judges, in separate cases, ruled it unconstitutional on March 8.
Aside from six commonwealth's attorneys who have asked police to stop enforcing the law, several others said they have considered making the request because of concerns they have about the law.
``Until I have a ruling from my local courts I don't want to risk DUI convictions for the sake of the seven-day suspension,'' said Rob Hagan, the commonwealth's attorney in Botetourt County.
Roanoke County General District Judge George Harris ruled last month that immediately lifting the licenses of a driver arrested on a DUI charge bars the state from further prosecuting the accused.
The same day, Prince Edward General District Judge William Hay also declared the law unconstitutional and ordered police in his three-county jurisdiction to stop enforcing it.
``It's been a gift from the legislature,'' said Ray Ferris, who brought the case in which Harris ruled the law unconstitutional. ``We had been chomping at the bit to challenge it.''
Harris dismissed a DUI charge against Cindy Poff. The state trooper who saw her erratic driving and stopped her said she had a blood alcohol level of 0.11 percent. Under Virginia law, people with a blood-alcohol level of 0.08 or more are considered intoxicated. The trooper took her license.
When the case came to court, Ferris said Poff had already been punished by having her license lifted. Harris agreed and dismissed the case.
Prosecutors are bracing themselves for more challenges. During the first three months of the year, more than 5,600 licenses in Virginia were suspended for up to seven days, according to the Department of Motor Vehicles.
``I suspect it's going to spread like the plague,'' said Tim McAfee, the commonwealth's attorney in Wise County, where a challenge is pending.
In attacks on the law's constitutionality last month, judges have sided overwhelmingly with the state: 15 general district judges upheld the law while only Harris and Hay ruled against it.
Attorney General Jim Gilmore is trying to overturn the Hay's ruling. His office distributed memos to prosecutors at a training seminar during the last week in March outlining ways to defend the law in court.
``To immediately remove from the highways those people who choose to drive while impaired by alcohol is a mandated administrative response to ensure public safety,'' Gilmore said.
Many commonwealth's attorneys believe the issue will remain in limbo until a number of circuit courts or the Virginia Court of Appeals have ruled on the law.
KEYWORDS: DUI by CNB