November 21, 2016 Newsletter

Last week, the Justice Department filed a statement of interest in a class-action case against the Virginia Department of Motor Vehicles, brought this summer by the Legal Aid Justice Center, a Virginia nonprofit, on behalf of four people whose licenses were suspended because of a failure to pay costs, fines and fees assessed by courts.

“The statement of interest advances the United States’ position that suspending a driver’s license is unconstitutional if it is done without providing due process and without assessing whether the individual’s failure to pay was willful or the result of an inability to pay,” the Justice Department said in a statement. “As the Supreme Court has affirmed, the constitution prohibits punishing a person because of his or her poverty.”

More than 900,000 Virginians had suspended driver’s licenses because of unpaid costs or fines last year. In the same year, the DMV issued 366,773 suspension orders for those reasons, with about 40 percent of the underlying offenses wholly unrelated to driving. As of Sept. 1, there were 647,517 licenses suspended for just failure to pay fines and costs, the DMV said.

The state automatically suspends the driver’s licenses of people who don’t pay their court costs and fines. The suit argues that such a practice is unconstitutional because it disproportionally affects poor people.

At the time of conviction, courts are directed to order people who can’t fully pay fines and costs within 30 days to pay in installments in individual arrangements with the clerk of court. Failure to do so results in an automatic suspension. Drivers can also petition for restricted licenses that allow them to get to work.

Clerks are required to send drivers written notice of the suspension of the license, effective 30 days from the date of the conviction, if fines and costs are not paid. The notice can be provided at the time of trial or sent by mail. Courts also have discretion to give defendants more time to pay their costs.

A new rule from the Supreme Court of Virginia that takes effect Feb. 1 is intended to ensure that all courts approve deferred and installment payment plans in accordance with state law and to further the legal values of predictability, fairness and similarity in the collection of fines, court costs, penalties and restitution throughout the courts of the commonwealth.

It sets out definitions for fines and costs and installment payment plans and requires courts to offer defendants who are unable to pay to be offered some type of deferred or installment payment plan. Courts cannot deny payment plans because of past defaults or a referral to collections, among other criteria, and must provide written notice of all available payment alternatives and community service programs.

The rule also sets limits on down payments, allows payments made within 10 days of the due date to be considered timely, and requires courts to take into account the defendant’s financial resources in light of the defendant’s financial obligations, including defendant’s indigence, as well as the fines and costs the defendant owes in other courts.

The state attorney general’s office argued that the Justice Center is misdirecting its attack. It is Virginia state courts and court clerks that issue suspension orders, not the DMV commissioner. The underlying source of the problem is state law.

 In 2013 I introduced HB 2214, which reads- Restricted license issued when license suspended for failure to pay fines and costs. Provides that any person otherwise eligible for a restricted license may petition the district court of the jurisdiction in which he resides for authorization for a restricted license when his license is suspended for failure to pay fines, costs, and restitution. Such restricted license shall not be issued for more than a six-month period. Currently, such a restricted license may be issued only when each court that so suspended his license authorizes a restricted license and such a license may only be issued when the petitioner is already employed.

This bill was defeated in Courts of Justice Committee with a 9-6 vote.

I am now working on a new bill for the 2017 session to amend and reenact § 46.2-395 of the Code of Virginia, relating to suspension of driver's license for unpaid fines and a written offer of employment that is contingent on the person’s possessing a driver’s license. This draft bill has the support of the Blue Ridge Re-Entry Council and Horizon Behavioral Health. I look forward to sharing more information on this bill as session nears.

If you have any questions, comments or concerns that I or my Aide, Jenna, can help assist with in any way, please do not hesitate to call me (434) 821-5929 or email at [email protected]. You can also keep up with me on my Facebook page at


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