Va. Bad Driver Fees Are Upheld
Texas Report Shows Problems There, Too

By Tim Craig
Washington Post Staff Writer
Tuesday, August 14, 2007

RICHMOND, Aug. 13 -- The wrangling over the state's steep new fines on bad Virginia drivers intensified Monday as a suburban Richmond judge ruled that the fees are constitutional, and fresh evidence emerged that legislators and the governor may have enacted the fees without fully researching the effect on the poor of comparable programs in other states.

In light of the legal maneuvering, the Virginia Supreme Court is considered likely to decide whether the fees, which can reach $3,000, violate the constitutional guarantee of equal protection because they apply only to Virginians and not to out-of-state motorists. In a related development Monday, an 81-year-old Roanoke woman launched a separate challenge to the fees -- intended to raise $65 million for transportation projects -- after being cited for reckless driving.

In January, a month before the Virginia General Assembly approved the fees, the Texas legislature issued a report that concluded a similar program in that state was failing because thousands of drivers could not afford to pay the fees. A copy of the report was obtained by The Washington Post on Monday.

Texas, New York, Michigan and New Jersey impose fees, in addition to court costs and fines, on drivers convicted of serious traffic offenses, such as driving under the influence. As in Virginia, motorists who don't pay the fees in those states could have their driving privileges suspended.

According to the Texas Legislative Budget Board, the state has reported a collection rate of 29 percent since the fees went into effect in 2003. As of a year ago, in 55 percent of cases, involving 828,000 licenses, licenses were suspended because fees were not paid, the report says.

Last month, The Post reported that the licenses of tens of thousands of motorists in New Jersey and Michigan -- including many low-income drivers -- have been suspended because of unpaid fees. Michigan judges are calling for repeal of the program because they are seeing an influx of motorists cited for driving on suspended licenses, which prompts a new round of fees that many cannot afford.

The Texas report recommends that lawmakers significantly modify the state's Driving Responsibly Program, which raises money for trauma care, to make "payment of certain surcharges more feasible for low-income drivers."

The report says lawmakers should consider offering periodic amnesty to some drivers facing the fees, including those who can prove that their driving has improved.

Until changes are made, there are signs the fees are clogging the Texas court system.

Texas Sen. Eliot Shapleigh, a Democrat from El Paso, estimates that half of outstanding arrest warrants in El Paso and Austin are for people who are unable to pay the fees. According to Shapleigh's analysis, 11 percent of residents of those cities have outstanding arrest warrants.

"Driving responsibility laws are increasingly resembling debtors prisons," Shapleigh wrote in a letter to Texas lawmakers last month.

Krista Moody, a spokeswoman for Texas Gov. Rick Perry (R), said the governor is open to amending the fee program but does not want to repeal it.

"We think it has gotten off to a slow start, but we think it is a worthwhile program because it holds drivers accountable for their actions," Moody said.

Virginia Del. Thomas Davis Rust (R-Fairfax), who helped craft Virginia's abusive-driving fee law, said he was unaware of the problems created by the Texas law. But Rust said the General Assembly will consider changing the fees when it convenes in January.

"I don't know what the Texas law says, but in Virginia, the thing just went into effect a month ago, so let's wait and see what happens, and if we have to make changes, we will make changes," Rust said.

In Virginia, the latest court challenge of the fees involves an 81-year-old woman on a fixed income who says she cannot afford to pay the $1,000 fee she faces if she is convicted of reckless driving.

Mary Elizabeth Minter filed suit in Roanoke County Circuit Court seeking to block the state from imposing the fees on Virginia residents. Minter, who has a clean driving record, was cited for reckless driving July 29 after allegedly running a red light and causing an accident. Her attorney, John P. Fishwick Jr., said his client, if convicted, would have to pay a fee that exceeds her monthly income.

"She is on a fixed income. She has an impeccable driving record. It would be catastrophic for her to pay these exorbitant fines," Fishwick said.

Joanne Nattrass, executive director of Commonwealth Catholic Charities, said a $1,000 fee can be "a major, major hardship" for someone on a fixed income. "It would force someone to chose, 'Do I pay for food this month, or do I pay this . . . fee?" Nattrass said.

Minter's lawsuit contends that Virginia's fees are unconstitutional because they do not apply to out-of-state motorists. It also contends that the fees violate the separation-of-powers doctrine because a court is being asked to collect what amounts to a tax.

In recent weeks, district court judges in Richmond and nearby Henrico County have ruled the fees unconstitutional, saying that excluding out-of-state motorists violates the equal protection clause of the U.S. Constitution.

In a victory for Gov. Timothy M. Kaine (D) and state lawmakers Monday, Henrico Circuit Court Judge L.A. Harris Jr. overruled the lower court and declared the fees constitutional in Henrico.

Harris said it is reasonable to expect Virginia motorists to pay more to keep up highways than do motorists who are just passing through. Harris cited other instances in which states have set different charges for different groups of people.

House Speaker William J. Howell (R-Stafford) and Senate Majority Leader Walter A. Stosche (R-Henrico) issued a statement applauding the ruling. But they said they intend to find a way to impose the fees on out-of-state motorists when the General Assembly convenes in January.

Until the General Assembly acts, the lawsuits are expected to continue. A Navy veteran is challenging the fees in Arlington County General District Court, where a hearing is scheduled for next week.

J. Tucker Martin, a spokesman for Attorney General Robert F. McDonnell, said, "We continue to anticipate uncertainty as various courts rule on the issue, and we believe this issue will ultimately be decided by the Supreme Court of Virginia."