RICHMOND — Did Gov. Timothy M. Kaine delete a clause from the new transportation law that would have applied the prohibitive fees for abusive driving to out-of-state residents, effectively limiting the punishment to Virginians?
Some legislators say he did. Other lawmakers and Mr. Kaine’s administration say he didn’t. And a law professor says it’s inconclusive.
The latest turn in the statewide furor over the so-called abusive driver fees has Mr. Kaine and other elected leaders seeking cover and others calling for a special legislative session to repeal the legislation.
It focuses on the final 14 words in a paragraph of the House- and Senate-approved bill passed on the closing day of the 2007 General Assembly that defines those to whom the fees will be applied.
The paragraph reads:
“The civil remedial fees established by this section shall be assessed on any resident of Virginia operating a motor vehicle on the highways of Virginia, including persons to whom Virginia driver’s licenses, commercial driver’s licenses, or learner’s permits have been issued pursuant to this title; persons operating motor vehicles without licenses or whose license has been revoked or suspended; and persons operating motor vehicles with a license issued by a jurisdiction outside Virginia.”
Mr. Kaine amended the complicated 96-page legislation, and when legislators returned on April 4 to consider his rewritten version, the last clause pertaining to nonresidents was gone.
Critics say it would have applied the new fees that can run into the thousands of dollars for the most egregious driving offenses to residents as well as nonresidents.
Sen. Kenneth W. Stolle, Virginia Beach Republican, said that was clearly the intent of the clause and that he was unhappy it was missing from the final version.
“Everybody’s running for cover now, but the legislature wanted to include all drivers,” said Mr. Stolle, who voted for the substitute bill.
The abuser fees are imposed on top of already steep fines and court costs for such violations as reckless driving, driving on a suspended or revoked license, drunken driving and felonious acts that involve driving such as hit-and-run or vehicular manslaughter. They are paid in three annual installments, the first to the court upon conviction and the other two to the Department of Motor Vehicles as a condition for holding a Virginia driver’s license. Totaled, they can range from $750 for a suspended license violation to $3,000 for driving-related felonies.
They were passed as fees instead of fines because the state Constitution restricts revenue from fines to school construction and teacher retirement. Civil fees could be spent for transportation, but because fees lack the legal authority of fines, collecting them outside of Virginia would be difficult if not impossible.
For that reason, the 14-word applicability clause was unenforceable, perhaps illegal, and it was removed to clean up the bill, Kaine spokeswoman Delacey Skinner said.
“There was no question we did not have legal teeth to enforce them if applied to out-of-state drivers. We would be relying on the good will of the out-of-state drivers to pay the fee,” she said.
She also contended that even though a common reading of the clause suggests the fees apply to nonresidents, a trained legal eye would interpret it differently. Because of the placement of commas and semicolons within the paragraph, she said, the final clause defines people who live in Virginia but have out-of-state licenses. Among them, she said, are military personnel who are legal residents of other states or people who just moved to Virginia and have not yet obtained Virginia licenses.
University of Richmond Law School professor Carl Tobias said the paragraph’s legal meaning was inconclusive at best.
“It’s hard to know what the General Assembly intended by that,” Mr. Tobias said. “This is just a classic example of not-very-clear drafting, it really is.”
Meanwhile, some lawmakers are calling for a special legislative session this year to repair or repeal the abusive-driver fees provisions.
Delegate Robert G. Marshall, Prince William Republican, sent letters Tuesday to all 99 other delegates and all 40 senators asking two-thirds to call for a special session if Mr. Kaine won’t.
Neither Mr. Kaine, a Democrat, nor House Speaker William J. Howell, Stafford Republican, supports a special session and prefer to resolve the bill’s problems in the next session in January.
The governor’s spokesman, Kevin Hall, however, said the governor had not flatly ruled out the prospect.
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