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From The Roanoke Times

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RICHMOND -- A Henrico County judge Thursday declared Virginia's new abusive driver fees unconstitutional, a decision that could embolden outraged citizens and legislators who want the controversial fees repealed statewide.

General District Judge Archer Yeatts III ruled in favor of a defendant whose lawyers argued that the fees violate a constitutional guarantee of equal protection because they apply only to drivers licensed in Virginia. The ruling has no legal bearing outside of Henrico County and will be appealed to Circuit Court.

But, for now, the case gives additional ammunition to critics of the new fees -- including those campaigning for General Assembly seats this fall.

"Clearly the judicial branch has perceived problems with the bill, as many of us have on the legislative side," said House Minority Leader Ward Armstrong, D-Henry County, who has called for a repeal of the so-called "abuser fees."

The civil remedial fees, which can reach $3,000 for a felony offense, were part of an omnibus transportation funding bill approved this year by the General Assembly and Gov. Tim Kaine. The fees are expected to generate $65 million annually for highway maintenance.

Kaine and lawmakers have been bombarded with criticism since the fees took effect July 1, and some lawmakers have called for a special session of the General Assembly to revise or repeal the fees. Critics have complained about the severity of the charges and the fact that out-of-state drivers won't have to pay them.

Even prosecutors have raised concerns about the new fees. Franklin County Commonwealth's Attorney Cliff Hapgood, who has questioned whether the exemption for out-of-state drivers is constitutional, praised the Henrico County decision.

"I think this is good news," Hapgood said. "I can't see how you can drive in this state and have two sets of rules. The whole premise of the law is that it's supposed to apply equally to everybody. I don't think you can get around that by calling it civil instead of criminal."

Bedford County Commonwealth's Attorney Randy Krantz said that while he's not opposed to additional fees for serious traffic violations, he believes they should apply to everyone.

"If there's going to be a difference, then it should be on a particular fact in the case, not on a basis of who someone is or where they're from," Krantz said.

Kaine has resisted calls for a special session, saying lawmakers can make changes to the fees next year.

"Whether the courts find the law constitutional or not, as a policy matter I am committed to addressing the concerns Virginians have raised about this law, including its application to out-of-state drivers," Kaine said in a statement released after the Henrico court ruling.

The Henrico County case involved a defendant facing a fifth charge of driving on a suspended license. The judge ordered court clerks not to collect the first of three $250 installments that defendant Anthony Price would have to pay under the new law.

Attorney General Bob McDonnell declined to comment on the Henrico ruling but said he considers the overall transportation bill to be constitutional. McDonnell, a Republican, said he believes the abusive driver fees should apply to out-of-state motorists and that "the proper venue for such a change in public policy is the Virginia General Assembly."

Del. William Fralin, R-Roanoke, agreed that lawmakers need to find a way to apply the fees to out-of-state drivers.

"We need to fix that," Fralin said.

House Majority Leader Morgan Griffith, R-Salem, said legislators will "tweak" the abusive driver fees next year. But Griffith, who helped shepherd the transportation bill through the House, defended the policy of penalizing bad drivers.

"It makes the people who are causing a big chunk of the congestion pay the price for alleviating congestion," Griffith said.

Griffith said the Henrico court decision does not mean the abusive driver fees are in jeopardy. He cited a 1994 drunken driving law as an example of a controversial law that withstood court challenges.

That law allows police to take a driver's license for seven days immediately after making an arrest for drunken driving or refusing to take a breath or blood test. Some judges, including one in Roanoke County, ruled that the so-called "administrative suspension" subjected a driver to double jeopardy. The Virginia Supreme Court upheld the law in 1996.

"This is not unusual when a new law comes along," Griffith said.

The Associated Press contributed to this report.

mike.sluss@roanoke.com (804) 697-1585

mike.allen@roanoke.com 981-3236