District Judge Rules Abusive-Driver Fees Unconstitutional

By Daniela Deane
Washington Post Staff Writer
Thursday, September 27, 2007

An Arlington County General District Court judge has ruled that Virginia's abusive-driver fees are unconstitutional, saying they violate guarantees of equal protection because they apply only to state residents.

Judge Dorothy H. Clarke ruled Tuesday in the case of Oscar Reyes Hernandez, who was charged with driving without a license in Arlington on July 5. Under the law, which has triggered widespread complaints, Hernandez would face a civil fee of $300 per year for three years in addition to any criminal fines.

Clarke's ruling is thought to be the first decision of its kind in Northern Virginia. It is not binding outside Arlington or for other District Court judges in the county, and it could be overturned by a higher court.

Deputy State Solicitor General Stephen R. McCullough said the attorney general's office will appeal the case to Arlington Circuit Court.

"We respectfully disagree and maintain [the fees] are constitutional," McCullough said.

Four District Court judges in Virginia, including Clarke, have ruled that the fees are unconstitutional. Two of those rulings, in Henrico and Hanover counties, have been reversed by circuit court judges. A case in Richmond is pending.

Other courts in the state have ruled that the fees are constitutional.

The law, which took effect July 1, imposes fees of $750 to $3,000 for serious traffic offenses. Legislators are calling for the penalties to be repealed or modified. Enacted to help finance a transportation bill approved by the General Assembly, the fees are expected to raise $65 million a year.

The attorney general's office said the fees do not violate guarantees of equal protection because there are reasons to distinguish between Virginia residents and nonresidents: Virginia residents will benefit more from improved roads, it is not cost-efficient to try to collect the fees from out-of-state drivers, and the main penalty for nonpayment is the suspension of a Virginia driver's license.

This month, prosecutors in Arlington reduced a reckless-driving charge against a Centreville man to speeding, avoiding a showdown on the fees.

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