Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, March 16, 1995 TAG: 9503160081
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: SARAH HUNTLEY STAFF WRITER
DATELINE: LENGTH: Medium
But defense attorneys are striking back, and the courtroom battles are getting more technical - and more heated - with every motion.
This week's legal maneuverings are the result of last Wednesday's ruling by Judge George W. Harris Jr., who dismissed a DUI charge against a Vinton woman because, he said, it was unconstitutional to prosecute her after she already had been punished for the crime.
Cindy Poff's license was revoked for seven days when she was arrested, as mandated by a new driving-under-the-influence law that took effect Jan. 1. More than 3,700 Virginians - 64 of them in Roanoke County - have had their licenses revoked under the law.
Harris said following the revocation statute and then prosecuting Poff for DUI would amount to double jeopardy - punishing someone more than once for the same crime - which is prohibited in the Fifth Amendment of the U.S. Constitution. The legislators who drafted the law argue, however, that the taking of the license is a civil act, not a judicial one.
The whole mess is a defense attorney's paradise. But until a higher court settles the dispute, no one is certain which side will come out on top.
On Wednesday, Assistant Commonwealth's Attorney Randy Leach tried to block a revocation hearing by agreeing to return the defendant's driver's license, but defense attorney Ray Ferris objected.
The law gives the defendent the right to request a prompt hearing before a General District Court judge to protest the license revocation.
"The statute says that the defense shall call for the revocation hearing," Ferris said, arguing that the prosecution does not have the right to prevent the hearing from occurring, even by returning the license. "I would submit to the court that the punishment begins at the point the seizure occurs."
Despite Leach's protests, Harris went ahead with the hearing. The defendent, Jerry Smedley of Lexington, left court with his license back - three days after his arrest - and high hopes that his case will be dismissed later.
But there are no guarantees.
"Anyone and everyone needs to understand this thing is in a state of flux," Ferris said later. "We don't know what's going to happen when the cases get to the trial stage. There was nothing strange about what the judge did today. Basically he let both sides get their way."
The commonwealth's objections were noted in the file and may come up in later court proceedings.
"If Judge Harris' position is that the commonwealth has sought punishment through the license revocation law, our position is that we aren't trying to proceed with this hearing at all. I'd rather prosecute them for DUI," Commonwealth's Attorney Skip Burkart said.
Burkart had advised the county Police Department to stop enforcing the law until a higher court reaches a decision, but Police Chief John Cease said his officers will continue to revoke licenses. The department doesn't have the option of ignoring the law, Cease said.
Botetourt County Sheriff Reed Kelly said he has instructed his deputies, as have Roanoke and Salem police, not to seize licenses. He said his deputies made three DUI arrests last weekend and did not take the drivers' licenses.
by CNB