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This article is the third in a three-part series about license suspensions in the Commonwealth of Virginia. Read the first part of the series here and the second part here.
More than one and a quarter million Virginians live with one or more license suspensions on their record, according to data from the Virginia Department of Motor Vehicles. Nearly one in four Virginia drivers (22.61 percent) have had their license suspended as of September, 2016.
The number of people in Virginia with suspended licenses is nearly equivalent to the entire population of the state Maine, according to United States Census Data. Of those suspensions, roughly half are for failure to pay court fines and fees.
When a person does not pay their court fines and fees, Virginia law requires the indefinite suspension of their driver’s license until the fines and fees are paid or a payment plan is entered into. A court clerk’s office will transmit information about nonpayment to the Department of Motor Vehicles, wherein the suspension will take immediate effect.
According to data provided by the DMV, Williamsburg currently has 1,151 residents who have their privileges to drive suspended after non-payment of court fines and fees. James City County has 617 residents with suspended privileges and York County has 572 residents with suspended privileges for non-payment of court fines and fees.
How it all started
The national political climate in the late 1980s into the mid-1990s produced the Violent Crime Control and Law Enforcement Act also known as the 1994 Crime Bill. The bill took a harder approach against violent crime, including the contentious three strikes mandatory life sentence for habitual offenders, as well as funding for the expansion of police departments and prisons. Virginia signed a “three strike law” similar to the federal law in 1994, but while the commonwealth was hardening its stances on violent crime it was also hardening its stances on the softest of crime: traffic infractions.
In 1994 the General Assembly amended and reenacted several parts of the Code of Virginia regarding how the commonwealth investigated indigent offenders — or people who are too poor to pay court fines and fees.
Until April 26, 1994, Section 19.2-349 of the Code of Virginia read “It shall be the duty of the attorney for the commonwealth to make inquiries into the reasons why such fines, costs, forfeitures, penalties, and restitution remain unsatisfied. If it appears from such inquiries that any such amounts may be satisfied, the attorney for the Commonwealth forthwith shall cause proper proceedings for the collection and satisfaction.”
Legislators in the General Assembly examined the law and removed sections of the phrasing, changing the duty of the Commonwealth’s attorney from a consultant who determined an offender’s ability to pay, to that of a bill collector.
On April 26, 1994, Section 19.2-349 of the Code of Virginia read “It shall be the duty of the attorney for the Commonwealth to cause proper proceedings to be instituted for the collection and satisfaction of all fines, costs, forfeitures, penalties and restitution.”
The changes in the law prevent a Commonwealth’s attorney from making the distinction between an able-to-pay offender and an indigent or poor offender. The pay-or-else process for the collection of fines and fees has contributed to the present 1.289 million license suspensions over the past 22 years. The law shifted the responsibility from the Commonwealth’s attorney’s office, to the Clerk of Court’s office, and the Virginia Department of Motor Vehicles, effectively removing Commonwealth’s Attorneys from the license suspension process per that section of Virginia Code.
“I appreciate that driving a car is a privilege and not a right,” Nate Green, the Commonwealth’s attorney for Williamsburg-James City County, wrote in an email. “The drivers out there who make it unsafe for the rest of us should have their licenses suspended, not those who for a multitude of reasons may not be able to make their financial obligations to the court.”
HB 1208 was introduced into the House of Delegates by then-Delegate Whittington Clement on Jan. 25, 1994. On April 20 of that year, the final version of the bill passed the House of Delegates, and the same day it passed through the Virginia Senate.
The day House Bill 1208 was passed by a vote of 95-0, the House of Delegates voted 114 times on 105 bills. House Bill 1208 was the 92nd bill to be approved that day, and the 69th since the House of Delegates reconvened after lunch. Governor George Allen signed the bill into law six days later on April 26.
Former Delegate Whittington “Whitt” Clement of Danville was the patron of the broadly supported bill, however he said in a telephone interview it was the Virginia Department of Motor Vehicles at the time which had asked him to submit the bill.
Clement previously served as the Virginia Secretary of Transportation from 2002-2005, as well as serving seven terms as a member of the House of Delegates. In the House of Delegates, Clement was a member of the Transportation Committee, and a chair of the Commerce and Trade, and Transportation and Capital Outlay Subcommittees of the House Appropriations Committee.
Despite the fact Clement put the bill forward, he now thinks differently about the matter.
“I think it’s time to look at that legislation again,” Clement said. “I think the General Assembly needs to reexamine the circumstances that would warrant a license suspension, and those circumstances should be limited to driving-related situations, and there should be a uniform way to pay those fines and costs. The General Assembly may also want to consider different rules for those who depend on their motor vehicles for employment and education.”
Birth of House Bill 1208
In 1992, Virginia General Assembly passed a resolution to study the issue of unpaid court fines and fees. According to House Joint Resolution 133 of the 1992 session, 21 percent of fines in general district courts, and 60 percent of fines in circuit courts remained unpaid annually. These court fines and fees were “substantial” totalling $22 million for fiscal years 1986-87, according to the document.
“Many offenders are poor and without obvious means to satisfy court judgements,” read the resolution. “In many courts, fines and costs are also thought to be poorly enforced.”
The implementation of computer systems, which integrated information between the Department of Motor Vehicles, the court system, and the department of transportation improved collection efforts by the state.
The resolution offered potential short-term financial benefits if an amnesty program — a period of time in which delinquent debtors are allowed to pay their fines at a discounted rate — were put in place to collect more of the fines and fees. But the resolution concluded that amnesty programs would be ineffective for the Commonwealth — as they would cost the state more than it would receive from the collected court fines and fees.
Senate Majority leader Thomas “Tommy” Norment, Jr. was two years into his freshman term in the Virginia Senate when House Bill 1208 was voted on in 1994. Decades into his political career, Norment is now known as a power broker in the upper house of the General Assembly.
Norment said he vaguely recollects the bill passing through the senate, but said he’s penned or voted on hundreds of pieces of legislation in his time in the General Assembly. He explained that the investigation of indigent offenders is something now done in the courtroom by a judge.
Offenders have to explain what they own and their wages, before finally signing a document under oath saying that they are indigent, Norment explained. If they’re found guilty of a crime — and the judge hands down a suspended sentence — payment of the fines and fees can be a condition of the suspended sentence.
In other words, if the offender doesn’t pay the fines and fees, they could be incarcerated if the judge decides to impose the sentence, or if they defy a summons to appear before the court to explain why they haven’t paid their fines and fees.
“I’m probably a little more conservative on this,” Norment said. “First of all, they’ve broken the law. Secondly, they’ve been convicted of breaking the law…I do think there need to be some tweaks, but I’m not ready to do a wholesale restoration.”
“It does create a downward spiral,” Norment added. “I just know that there’s some folks that can’t pay the fines and costs, their license has been suspended, they can’t get to work so they have to make the decision to take the chance. ‘I’m going to drive so I can get to work, to earn some money, to support my family.’”
In the end, Norment said it was up to offenders to pay what they owed and get their license back. He recalled the payment plan of one of the clients from his Williamsburg-based law firm Kaufman & Canoles.
“The judge ordered the guy to pay 25 or 50 bucks a month,” Norment said. “Come on, give me a break. That’s a buck and a quarter a day.”
Freedom of movement
Freedom of movement has been a protected interest in the Commonwealth of Virginia since the Articles of Confederation were ratified here on July 9, 1778.
The fourth article reads “the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce.”
Freedom of movement became a constitutionally protected interest in 1868 with the United States Supreme Court Case Crandall v. Nevada, when the court ruled that a state does not have the ability to inhibit movement of people from inter-state movement by taxation.
The constitutionally protected interest was upheld again by the Supreme Court with United States v. Guest in 1966.
One section of the United States v. Guest court opinion expresses that the omittance of a right to freedom of movement in the constitution is “that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”
Richard Bennett, a Professor at American University’s School for Public Affairs and an expert in international crime statistics and trends, said the issue is about much more than transportation — it touches on all aspects of an offender’s life.
“Most middle class Americans don’t understand what it means to wake up and work off of someone else’s bus schedule,” Bennett said. “It impacts poor people to a much greater extent. You have a lot of these poor people in rural areas just left out in terms of transportation either you have a car or you walk. The further you are from the center of a city the more difficult it will be to maintain gainful employment without some form of transportation.”
For those tasked with rehabilitating offenders, a lack of reliable transportation can lead former inmates to return to crime. Hal Diggs, Director of Colonial Community Corrections in James City County, said that gainful employment plays a critical role in keeping former inmates from returning to prison.
“I always say that ‘everyone is going to survive, it’s our job to give them the tools to do it legally, because if they can’t do it legally, they will do it illegally,’” Diggs wrote in an email. “If a person can’t find gainful employment and they need to eat and put a roof over their heads [then] the chance of them turning to illegal and immediate remedies increases significantly.”
Senator T. Montgomery “Monty” Mason of Williamsburg is the former representative of the 93rd House of Delegates, and a freshman member of the Virginia Senate, who would like to see some change in the way the commonwealth handles driver’s license suspensions.
Mason said it would be a matter of striking a balance between making offenders answer for their wrongs and enabling people to earn a wage.
“People need to be accountable for their actions,” Mason said. “We need to hold them accountable. But at the same time, taking someone’s driver’s license away, it could ruin their families and their lives.”