The battle over Virginia's abusive driver fees intensified Monday, as a Roanoke County lawsuit sought to suspend the new law statewide even as a Henrico Court judge upheld it as constitutional.

A team of Roanoke lawyers filed a lawsuit Monday morning on behalf of an 81-year-old woman on a fixed income, challenging the controversial civil remedial fees on several fronts.

The fees, which can reach $3,000 for a felony offense, were approved this year as part of an omnibus transportation funding bill by the General Assembly and Gov. Tim Kaine. The fees, which took effect July 1, are expected to generate $65 million annually for highway maintenance.

"We think they're unconstitutional imposition of a fine on taxpayers," said Roanoke attorney John Fishwick. His firm, Lichtenstein Fishwick & Johnson PLC, filed the suit along with Salem lawyer Van Hoback.

Roanoke resident Mary Elizabeth Minter became a potential target of the fees when she was charged with reckless driving in a July 29 wreck. She is accused of running a red light and hitting another car while driving on Williamson Road, said Roanoke County police Lt. D.G. McMillan.

Minter was taken to a hospital. Police have no record that the other driver was injured. There was no evidence of excessive speed, McMillan said.

Minter's attorneys say she has had a spotless driving record for 61 years. If convicted of reckless driving, she would face a civil remedial fee of $1,050, which she cannot afford, Fishwick said.

"Her inability to pay the fine will automatically result in the loss of her license," he said. "Such a penalty unfairly targets the poor and is inconsistent with basic constitutional principles of fairness and justice."

Minter's daughter Marilyn Minter, 54, said the wreck was the first her mother has ever been in.

Minter's lawsuit asserts that the fees are unconstitutional on several grounds, requests an injunction to stop collections of the fees statewide, and further requests that any fees collected to date be refunded.

"Hopefully no other elderly person or any other person will have to go through this," Marilyn Minter said.

The suit argues that the fees are actually fines, and that the state constitution requires all fines to be paid into the state literary education fund.

The suit also argues that the fees are in effect a tax collected by the courts, which do not have the authority to levy taxes, and thus the law violates the doctrine of separation of powers.

House Majority Leader Morgan Griffith, R-Salem, called the lawsuit "very creative lawyering" and expressed skepticism about how far it will get. He noted that the fees were in fact levied by legislators and that Virginia already has fees attached to court costs that have passed constitutional muster.

Griffith, an advocate of the new law, also questioned whether Minter was truly in danger of being convicted of reckless driving. If the judge who hears her case Sept. 12 decides her culpability is only slight, her charge might be reduced.

But the Roanoke County lawsuit is not limited to Minter's case. The suit asks the court to declare Minter the "virtual representative" of all Virginia residents who have faced the possibility of having an abuser fee assessed against them since the law took effect.

Her suit also argues that the fees violate the guarantee of equal protection under the law by only being levied against Virginia drivers. A similar argument made in a Henrico County case earlier this month hit a roadblock Monday, as a Henrico County Circuit Court judge declared the law constitutional.

Judge L.A. Harris Jr. wrote that the law has a rational basis for not applying the fees to out-of-state drivers and thus cannot be invalidated by an argument over whether the provision is "fair" or "politically correct."

"We agree with the court's decision," said Virginia Attorney General's Office spokesman David Clementson. "This office has consistently maintained that the transportation plan and its provisions are constitutional."

Richmond lawyer Esther Windmueller made the constitutional challenge in Henrico County on behalf of Anthony Price, a man charged with his fifth DUI offense. Though his case will return to General District Court, Windmueller said she likely will appeal any ruling there and intends to make more arguments in circuit court.

Fishwick said the Henrico County decision doesn't affect the Roanoke County lawsuit. "A number of the arguments that we raise in our suit weren't presented to the judge in Richmond," he said. "We will also continue to press the equal protection argument."

Clementson declined to comment on the Roanoke County suit other than to say the Attorney General's Office will continue to defend the constitutionality of the plan.

"We continue to anticipate uncertainty as various courts rule on this issue and believe that this issue will ultimately be decided by the Supreme Court of Virginia," he said.

Del. Onzlee Ware, D-Roanoke, said he expects criticism and court attacks on the fees to continue, but he hopes the publicity they generate will get Virginia residents to focus on the depths of the state's transportation problems.

Legislators came up with the abuser fees as a creative way to avoid the unpopular prospect of raising the gas tax or putting tolls on the roads, Ware said, options lawmakers realistically must consider. "We as legislators need to just sit down and say we don't have a choice," he said. "I think the citizens will realize that that's only way to do it."

Griffith said that funding the transportation bill with the gas tax would result in a price tag of at least 20 to 25 cents per gallon if it were applied equally statewide.

Griffith acknowledged there are problems with the law that must be fixed. When the General Assembly meets again in January, the law likely will be changed to apply to out-of-state drivers, and some of the minor offenses will be taken off the list of charges that incur fees, he said.

The new law is "the biggest infusion of cash for transportation in the last 20-plus years," Griffith said. The abuser fees are a small part of the overall transportation plan, "but it's the part that people can easily attack," he said. "Every time you go in a new direction with the law ... you end up in court."