A possible answer to DMV's 'legal presence' debate

I first broke the story back in July about the Virginia Department of Motor Vehicles’ new legal presence rule that was preventing some senior citizens, even World War II veterans, and orphans from obtaining state-issued drivers’ licenses or ID cards in Virginia. Today, the General Assembly may have a solution.

The legal presence rule became effective January 1, 2004, and it requires that someone applying for an original Virginia driver’s license or photo ID card or renewing an expired license, proves he is a U.S. citizen or is legally authorized to be in the United States. Previously, an applicant only had to prove his identity and the fact that he resided in Virginia.

The Department of Motor Vehicles is very specific about what types of identification it will accept as proof of legal presence. If you are a native born U.S. citizen, you only have the choice of three documents: a birth certificate, a passport, or a military ID. All must be originals. And no one at DMV is willing to make a judgment call about issuing you a license or ID card if you can’t obtain these documents, but you have other valid proof of your citizenship.

This has caused quite a few problems, but State Delegate William Fralin (R-Roanoke) is stepping up with House Bill 1718, which he is sending through the House Transportation Committee. The bill expands the list of documents that may be used to prove U.S. citizenship or legal status to include the combination of a Virginia driver's license that’s expired less than one year, an original adoption certificate issued in the U.S., military discharge papers, or a tax document showing that the applicant is employed by the federal government or the Commonwealth.

The bill also grants the DMV Commissioner the discretion to issue driver's licenses, following a hearing, to persons who don’t have the above documents, but may have other reasonable documentation to prove citizenship or legal status.

The problems with the legal presence rule arose in 2004 when many elderly citizens weren’t allowed to obtain Virginia photo ID cards. Often seniors turn in their drivers’ licenses for medical reasons as they get older, and still needing an official state photo ID card (a non-driver ID), they think they can just exchange one for the other. Not true anymore since the legal presence rule took effect. Even if an 80-year old grandmother is turning in a valid Virginia driver’s license after having one for 60 years, she now needs to prove she isn’t an illegal alien to exchange it for a Virginia photo ID card.

The issue for seniors is that many states didn’t issue birth certificates 70 and 80 years ago, many seniors were born at home without a birth record, and some old courthouses that housed birth records have burned down. These people can’t produce their birth certificates because they don’t exist. In these cases, citizens have to go to the Division of Vital Records and prove that they were born in Virginia to get a “delayed birth certificate.” The proof necessary to obtain this certificate includes old school records, family bibles, etc. If citizens can’t find this or other documentation, they may be out of luck.

One of the more outrageous cases involved a WWII veteran who had his military discharge papers from the 1940s and decades of Virginia tax records, but he didn’t have his original birth certificate. So the DMV told him he didn’t have the proper proof showing he was a U.S. citizen, and he was initially denied a license.

The law also affects people orphaned as children who were never legally adopted. Some of them can’t obtain birth certificates because they don’t know the states where they were born or who their parents are.

Another case involved an adoptee who had a social security card, a copy of her birth certificate, her federal government employee ID badge, her adoption decree on original government letterhead – complete with the original seal and her full name, birth date, and place of birth. It didn’t work – she needed an original birth certificate, a passport, or a military ID to prove she was legally allowed to be in the U.S. Those were the rules. The DMV was not willing to bend.

What does all this mean? Citizens who can’t get state photo IDs or driver’s licenses can’t drive cars or board planes or cash checks or open bank accounts.

“State government has developed a system that isn’t serving citizens very well,” Fralin said.

“We can’t arbitrarily take away honest citizens’ ability to drive their cars or cash a check because we won’t issue them a new driver’s license or ID card. There needs to be some kind of appeals process for those people who can’t produce those limited documents on the DMV list,” he said.

Fralin’s bill would expand the documentation list and allow for a quick appeals process, while still keeping the intent of the original legal presence law in tact – preventing illegal immigrants from obtaining Virginia drivers’ licenses.