THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, July 22, 1995 TAG: 9507220254
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LARRY W. BROWN, STAFF WRITER
LENGTH: Medium: 66 lines
Since Jan. 1, the licenses of nearly 12,000 Virginia drivers have been taken away for at least seven days under a controversial law allowing police officers to get drunken drivers off the road immediately.
In some localities, such as Roanoke, Botetourt County and Wythe County, enforcement of the law has been halted after commonwealth's attorneys began having doubts about its legality. Now the Virginia Court of Appeals has agreed to review the law quickly so the Virginia Supreme Court can have its say.
The law states that if you register 0.08 percent or higher on a roadside breath test, you are drunk. Police officers can then, on the spot, take away the suspect's license for seven days. The law also applies if the suspect refuses to take the roadside test.
The root of double-jeopardy debate is this: Does the new law violate the constitutional protection against being punished twice for the same offense?
Defense lawyers have argued that clients, charged with DUI, are first punished by the police when licenses are revoked. A second round of punishment, they say, is possible when the case is heard in court.
The law affected 11,866 of the commonwealth's 4.8 million registered drivers between Jan. 1 and July 15, according to the Department of Motor Vehicles. Bustling Fairfax County led all other localities, with 1,537 suspensions, followed by Virginia Beach, the state's largest city, with 1,017.
In Hampton Roads, a total of 2,189 licenses were taken on the spot.
Most drivers in Hampton Roads seem to be accepting the law, according to one lawyer.
``I've been really surprised,'' said Larry Cardon, a criminal defense and traffic lawyer in Norfolk. ``Most have swallowed the pill.''
Another lawyer, John D. Hooker Jr., of Virginia Beach, called the controversy ``the hottest debate I've seen . . . in a long time.''
Meanwhile, lawyers and judges are awaiting the decision of a test case - Tench v. Commonwealth - now on the Court of Appeals docket. In that case, a Henrico County judge denied a defendant's double-jeopardy argument.
Don Harrison, a spokesman for Attorney General James S. Gilmore III, said Gilmore hopes the state Supreme Court quickly resolves basic questions about the law.
``The attorney general said this issue is a matter of great public importance, not to even mention the safety issue,'' Harrison said this week. ``That's one of the reasons he asked the Supreme Court . . . to get a definitive decision out of it.''
Virginia is not the only state to face the double-jeopardy debate.
Ike Avery, a special deputy attorney general in Raleigh, N.C., said Friday that instant revocation has became a hot issue in many states.
Just this week, Avery said, a Superior Court judge in Mecklenburg County, in Charlotte, N.C., rejected the double-jeopardy argument in a test case now headed for an appellate court.
North Carolina's 10-day immediate suspension period has been in place since 1984, Avery said. ILLUSTRATION: Chart
For complete information see microfilm
KEYWORDS: DRUNKEN DRIVING by CNB