By Bill Turque
Washington Post Staff Writer
Friday, August 3, 2007; B01

A Henrico County judge declared Virginia's abusive-driver fees unconstitutional yesterday, ruling that they violate guarantees of equal protection under the law because they apply only to state residents.

The decision, which suspends collection of the fees only in Henrico, was immediately appealed by commonwealth's attorneys. But it represents the opening round in what is expected to be a barrage of court challenges across the state to the penalties, which range from $750 to $3,000 and are meant to help finance a transportation bill that took effect July 1.

The ruling also sent new tremors through the state's elected leadership, which is facing a fall campaign with voters hopping mad about the measure. More than 160,000 people have signed an online petition calling for the fees to be repealed. Gov. Timothy M. Kaine (D) and House Speaker William J. Howell (R-Stafford) issued statements yesterday saying that they are committed to addressing inequities in the law.

One lawmaker called yesterday for Kaine to drop the appeal and suspend the fees until the General Assembly reconvenes in January to consider an alternative. The appeal is headed to circuit court, where a hearing is scheduled for Tuesday.

The case in Henrico General District Court involved Anthony Price, a carpet installer convicted of driving on a suspended license for the fifth time. Commonwealth's attorneys said that the elevated fees were valid because abusive or dangerous drivers who live in the state and regularly use its roads are a heavier drain on public resources than motorists who are just passing through.

Prosecutors also said that collecting the fees from out-of-state drivers would create intolerable administrative headaches.

But Price's attorneys, Craig S. Cooley and Esther J. Windmueller of Richmond, said that the state had no rational basis for forcing Price to pay $750 in fees that don't apply to nonresidents. General District Judge Archer L. Yeatts III agreed.

"A 'dangerous' driver is a 'dangerous' driver, whether he or she is a life-long resident of Virginia or simply passing through on his or her way to another state or country," Yeatts wrote. He concluded that Price had been denied his 14th Amendment guarantee of equal protection under the law.

Criminal defense lawyers throughout the state pored over Yeatts's six-page ruling. Some predicted that it is the first of various constitutional challenges to the fees. McLean lawyer Corinne J. Magee, who has multiple challenges pending in Loudoun and Spotsylvania counties, said she plans to argue that the penalties amount to double jeopardy because they are designed to punish and deter behavior as well as remedy a social ill.

In Loudoun, Magee is representing a man convicted of DWI for driving a tractor while drunk in a private field. The question is whether the fees apply if the dangerous driving does not occur on a Virginia road.

Magee said she expects other judges to follow Yeatts's lead and invalidate the fees.

"I have heard a general undercurrent that many general district judges feel that way," Magee said.

Voter anger over the fees has intensified backbiting among state lawmakers, most of whom are backpedaling at full speed from the unpopular measure. Although it passed with bipartisan support, the plan was conceived by Republicans as a way to raise about $65 million a year for transportation programs without increasing taxes. Democrats are uneasy about the political fallout but also eager to remind voters of the GOP's role.

House Democrats blasted Howell, who promised yesterday to consider ways to include out-of-state drivers in the bill "as we always intended."

"Now, in the middle of the election, the speaker is hoping to rewrite history and pass blame to anyone he can think of," said House Democratic caucus spokesman Mark Bergman.

Republicans blamed Kaine for amending the bill to exempt out-of-state drivers. Kaine has said he had no choice; the state doesn't have the authority to charge out-of-state motorists a vehicle fee.

"I don't want to be ragging on the governor, I think he just did it by mistake," said Del. David B. Albo (R-Fairfax), who voted in favor of the transportation bill and was a major proponent of the fees.

Albo said, however, that he opposes the idea of a special session because of the risks it poses to the entire transportation bill, which passed narrowly. "We go back into special session, the whole deal is going to unravel," Albo said.

State Sen. Jeannemarie Devolites Davis (R-Fairfax), locked in what is expected to be a tight reelection fight against Democrat J. Chapman Petersen, called on Kaine to drop appeal of the Henrico ruling, suspend collection of the fees statewide and wait for the General Assembly to reconvene next year.

"Most people would be very happy to add a penny to the gas tax rather than deal with these abuser fees," she said.