- Associated Press - Wednesday, December 5, 2012

RICHMOND — The Virginia State Crime Commission endorsed legislation Wednesday to increase penalties for illegal cigarette trafficking and for texting while driving.

Lawmakers will consider the measures after they convene in Richmond for the 2013 session next month.

At a meeting earlier this year, experts told the commission that cigarette smuggling has dramatically increased because it can be more profitable than drug dealing, and the penalties are not as harsh. The most common type of trafficking, called “smurfing,” involves people buying large quantities of cigarettes from retailers in Virginia, which has the nation’s second-lowest tobacco tax at 30 cents a pack, and reselling them in higher-tax states in the Northeast. The tax in New York, for example, is $4.35 per pack.

The commission voted to keep the first smurfing offense a misdemeanor but increase the maximum penalty from six months in jail to one year. A second offense involving 25 or more cartons of cigarettes, or a first offense involving 500 cartons or more, would be a felony punishable by up to five years in prison. A second conviction involving the larger quantity could result in a 10-year sentence.

The danger of texting while driving also has caught the commission’s attention.

“We have a huge public safety problem,” said Delegate Manoli Loupassi, Richmond Republican. He said a driver with a .08 percent blood-alcohol limit, which qualifies as drunken driving, is less dangerous than one who is texting.

Texting while driving is currently a civil violation punishable by a $20 fine. It’s also a secondary offense, which means police can write a ticket for texting only if they stopped the driver for another violation.

The commission endorsed a bill already introduced by Delegate Benjamin L. Cline, Rockbridge Republican, that would classify the offense as reckless driving — a misdemeanor that can result in up to a year in jail. The legislation also would make it a primary offense, allowing police to pull over and charge any driver they see texting.

Mr. Cline’s bill applies to a driver using any handheld communication device for other than verbal communication, prompting Mr. Loupassi to question whether someone would be in violation for punching in a number to place a call. Stewart Petoe, the commission’s chief lawyer, said prosecutors and defense attorneys could both make effective arguments on that point.

Mr. Loupassi said he believes the legislature eventually will have to prohibit any touching of a cellphone while driving to eliminate such ambiguity.

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