Remedial fees appeal heard

A second Virginia Circuit Court judge was asked today to overrule a lower court decision holding the state’s civil remedial fees unconstitutional.

Richmond Circuit Judge Walter W. Stout III told traffic defense attorney G. Barton Chucker and Commonwealth’s Attorney Michael N. Herring at the end of a 30-minute hearing, “I’m not going to give you an opinion off the cuff.” He said he would issue a written opinion shortly.

Three general district courts—in Richmond and in Henrico and Hanover counties—have declared Code Sect. 46.2-206.1 unconstitutional, but Henrico Circuit Judge L.A. Harris Jr. upheld the statute on appeal, the only circuit level ruling so far. A hearing in Hanover Circuit Court is set for Sept. 25.

Chucker acknowledged that the only issue before Stout is whether the General Assembly had a rational basis for excluding out-of-state drivers from the fees, which range from $750 to $3,000 payable over 26 months for traffic-related misdemeanors and felonies.

He contended that excluding out-of-state drivers is inconsistent with the stated purpose of the legislation: “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth.” Those revenues logically apply only to the cost of prosecuting cases and responding to traffic accidents, not to road maintenance and construction.

Herring responded that he shares some of Chucker’s concerns about the statute. “Does it need to be improved? Certainly. But the need for improvement doesn’t make it unconstitutional.” He suggested that the legislature could have concluded rationally to exclude non-resident drivers because of the administrative burden of collecting the fees from them.

The bill drew little attention during debates over how to find more money for road construction, but a firestorm developed after publicity about it near its effective date of July 1. Opponents have been irate about the exclusion of out-of-state drivers, the high cost of the fees and the relatively trivial nature of some of the offenses to which they apply.