Two attempts to have a judge declare Virginia’s much-maligned abusive-driver fees unconstitutional failed Tuesday, but lawyers arguing against the expensive penalties said they would continue trying.
In the first case, Henrico County General District Judge Archie Yeatts denied a motion filed on behalf of all Virginians that sought to eliminate the fees, which the state began imposing July 1 as a way to raise money for road maintenance.
Yeatts told Richmond lawyers Esther Windmueller and Craig Cooley that they needed to file their petition in Circuit Court, which is one level higher on the judicial chain of command. Windmueller said after the decision she may file her petition as soon as today.
The second case, in which Windmueller is representing a man accused of driving on a suspended license for the first time, had to be postponed until Aug. 23 because the defendant was not aware of the court date.
Windmueller, who is the man’s court-appointed counsel, said she plans to argue against the constitutionality of the $1,050 fee her client will face if he’s convicted.
Yeatts, who hears traffic cases daily in his suburban Richmond courtroom, appeared frustrated that he could not decide the constitutional questions swirling around the fees Tuesday.
“I sure wish there was a way we could have this adjudicated before the 23rd,” he said. “If somebody finds some way to expedite this, I would sure appreciate it.”
Besides refiling her petition in Circuit Court, Windmueller said she may file another constitutional challenge if she can find a client who wants to fight the fees. It’s also possible other lawyers in the state could take action, she said.
Windmueller and Cooley are arguing that the fees violate the constitution’s ban on discrimination because they apply only to Virginia drivers.
The Virginia Department of Justice believes the fees pass constitutional muster. Assistant Attorney General Mike Melis told Yeatts the constitution gives the government great latitude to differentiate among groups of people as long as the decision is not made based on gender, race or religion.
