About 38,000 times each year, driving privileges are stripped from Virginians — not for traffic offenses, but instead for drug offenses.
Dubbed a relic of the war on drugs, Virginia law automatically suspends the licenses of anyone convicted of even minor drug offenses, reports a new Prison Policy Initiative study.
The study contends the law is counterproductive and unnecessarily burdens low-income offenders by limiting their ability to get or keep a job to pay court fines and costs or child support.
The automatic suspensions for drug offenses also are said to jeopardize public safety — people with suspended licenses caught driving fall deeper into the justice system while police, the courts and the Department of Motor Vehicles are tied up dealing with suspensions unrelated to traffic law enforcement.
Driver’s license suspensions in Virginia already were in the spotlight from other developments this year:
- A class action lawsuit filed in federal court by the Charlottesville-based Legal Aid Justice Center alleges the license suspensions of Virginians unable to pay court fines and costs — when those who can afford to pay keep their licenses — is discriminatory and violates constitutional protections.
- A new rule quietly adopted by the Virginia Supreme Court that takes effect in February offers some relief to offenders by requiring all courts in the state to offer defendants unable to pay court fines and costs within 30 days deferred or installment payment plans before suspending their licenses.
The new study, “Reinstating Common Sense: How driver’s license suspensions for drug offenses unrelated to driving are falling out of favor,” says that in 1991, Congress threatened states with a loss of federal highway funds if they did not automatically suspend the licenses of drug offenders.
Today, only Washington, D.C., Virginia and 11 other states still automatically suspend licenses — a total of 190,000 a year.
The study reports that in the fiscal year that ended June 30, 2015, there were 38,849 suspensions in Virginia for drug convictions unrelated to driving and a similar number the previous year.
According to the Department of Motor Vehicles, there were 38,130 in the year that ended June 30, 2016. The department said “orders issued” does not equal the total number of customers, since some may have received more than one order.
“While a majority of states have opted out of the federal law, 12 states and Washington, D.C., have continued to hurt their own citizens with these needless license suspensions,” said Joshua Aiken with the Prison Policy Initiative, a nonprofit, nonpartisan group.
Aiken said, “The report finds that the burden of these suspensions falls most heavily on low-income people and people of color.”
A driver’s license is a privilege, and suspensions have been used as a means of encouraging the payment of court fines and costs as well as a means of enforcing laws that have nothing to do with driving.
The Prison Policy Initiative agrees that possessing a driver’s license should reflect responsible driving and that license suspensions are a logical tool for enforcing laws against reckless driving, leaving the scene of a crash and other driving offenses.
But the group complains that nationally, 40 percent of license suspensions were for reasons not related to driving.
“In some states, littering, burning trash, skipping school and unpaid student loans result in driver’s license suspensions. Most states suspend driver’s licenses for unpaid court fines and fees and failure to pay child support,” the report said.
According to the Virginia Department of Motor Vehicles, a snapshot of the number and types of license suspensions, as of Sept. 3, shows there were 10,869 for non-motor vehicle drug suspensions; 20,746 for failure to satisfy court judgments; and 7,989 for failure to pay child support.
In court papers filed this year, the Virginia Attorney General’s Office said the suspension of licenses to protect highway safety is a legitimate governmental purpose and so are suspensions for failure to pay court fines and costs, because they assist courts in enforcing court orders.
Concerning suspension for nondriver-related issues, Richmond Commonwealth’s Attorney Michael Herring concedes, “There is wide disagreement on the effectiveness of the sanction. Some say it is regressive and results in disparate impact on the disadvantaged.”
And, he said, “I tend to agree.”
A DMV spokeswoman explained that state law automatically requires the department to revoke administratively the “driving privilege” for six months for someone convicted of any nondriving drug crime — even a misdemeanor possession charge with no jail time.
Defendants can apply to the court for a restricted license that permits driving to work, for example. The department said that of the 38,000 drug-related suspensions in the year that ended June 30, 10,450 were granted restricted privileges at the time of the convictions.
The Prison Policy Initiative argues that restricted licenses are not a substantive solution to unnecessarily suspended licenses. In some states, the process for winning a restricted license can be longer than the suspension.
In the past three years, five state legislatures — in Ohio, Massachusetts, Georgia, Delaware and Indiana — have voted to abolish automatic suspensions, the study says.
At least one related bill has been filed for the upcoming General Assembly session in Virginia.
Introduced by state Sen. Adam P. Ebbin, D-Alexandria, the proposal would not strip adults convicted of simple marijuana possession of their license. It would be contingent on written assurance from the U.S. Department of Transportation that Virginia will not lose any federal funds.
The Prison Policy Initiative study notes that a 2013 best practices guide by the American Association of Motor Vehicle Administrators reported: “It was estimated that as many as three-fourths of suspended or revoked drivers continue to drive. This fact indicates that driver license suspension is no longer the solution to enforce compliance.”
“The costs of arresting, processing, administering and enforcing social nonconformance-related driver license suspensions create a significant strain on budgets and other resources and detract from highway and public safety priorities,” the association wrote.
The guide recommends that state legislators repeal laws requiring the suspension of licenses for nontraffic safety reasons.
Angela Ciolfi, senior attorney with the Legal Aid Justice Center, which filed the class action suit on behalf of four plaintiffs in July, said their case is solely about suspensions for failure to pay court debt due to the inability to pay — and not suspension as a result of sentencing for drugs or any other reason.
“We are focused on the punishment of poverty as such and the cascading harms that flow from driving people further into debt when they can’t meet their basic needs,” she said.
Among other things, the suit alleges that courts issuing suspensions for failure to pay court costs and fines fail to take into account a debtor’s ability to pay.
The justice center said that in the year that ended June 30, 2015, the Virginia DMV issued 366,773 orders of driver’s license suspensions resulting from unpaid court fines or costs — more than one-third of which were for offenses unrelated to driving.
Most of those affected are low-income drivers, since wealthier Virginians can cover court costs.
The loss of a license can mean the loss of the only way to reach work. As a result, many people are forced to choose between losing their jobs or risking getting locked up for driving illegally.
Last month, the U.S. Department of Justice waded into the case by filing a brief that contends 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.
In its response opposing the suit, the Virginia Attorney General’s Office wrote that under Virginia law, “any individual who fails to pay court-imposed fines and costs will have his driver’s license suspended, regardless of income, race, gender, nationality, or other trait.”
Absent dissimilar treatment, the Equal Protection Clause of the Constitution is not at issue, the state lawyers argued.
“Although Plaintiffs have set forth what could be described as a persuasive argument that courts should give indigent criminal defendants greater latitude with respect to the imposition or repayment of fines and costs, what they have presented is, at its heart, a policy argument — and this is not a policymaking forum. It is a court of law,” the office wrote to U.S. District Judge Norman K. Moon.
The Attorney General’s Office recently filed another motion to dismiss the suit — this one in light of a new rule by the Virginia Supreme Court. The rule was adopted by the justices last month and takes effect in February.
Among other things, the rule requires a judge to take into account a defendant’s financial resources and obligations, including indigence, as well as anything owed in other courts when determining the amount and length of time to pay court fines and costs under a deferred or installment payment plan.
O. Randolph Rollins, founder and president of Drive to Work, a charitable organization that helps people win back their licenses, said the current state law allows judges to defer payment of fines and costs to a later date or to set up an installment plan for an offender to avoid suspending his or her license.
Prior to the new rule, Rollins, the secretary of public safety in the administration of Gov. L. Douglas Wilder, said, “Each individual court made its own decisions. Some of them didn’t give pay plans at all. Some of them gave pay plans that were very liberal. Others were very restrictive about it.”
The rule standardizes things and also tells courts that where available, “the court should liberally use community service work as an option to defray fines and costs, especially where the defendant is unable to make substantial payments.”
The Attorney General’s Office argues: “The Virginia Supreme Court, therefore, has enacted the very policy Plaintiffs seek. For this reason, there is no further relief that could or should issue in this case and these proceedings are moot.”
Ciolfi welcomes the new rule but strongly disagrees that it fixes the problem targeted by the suit. Rather, she said, it acknowledges that the system is broken.
“The Supreme Court deserves our praise for its leadership in helping people avoid the court debt trap. If the rules are implemented in both letter and spirit, they offer tremendous potential to stem the tide of drivers entering the license-for-payment pipeline,” Ciolfi said.
But she said the rule does not “alter the fundamental flaw in the license-for-payment system, which is the mandatory and automatic nature of the driver’s license suspension statute.”
“The U.S. Supreme Court has repeatedly said that states can’t punish people for failure to pay unless the default was due to intentional refusal to pay. As long as Virginia law automatically suspends licenses for failure — and not just refusal — to pay, it violates the Fourteenth Amendment,” she contends.
And that is a problem for the nearly 1 million people who have already lost their licenses without being offered a payment plan, she said.
“It’s also a problem for all future debtors facing suspension because, even with more responsive payment plan terms, there will always be a need for the opportunity to explain a missed payment, whether it be job loss, illness, new family obligations or some other changed circumstance that is particularly difficult for low-income people to overcome,” Ciolfi said.
Rollins, with Drive to Work, believes the new rule “is a pretty significant development.”
“I think this is going to be a big plus for the average guy out there who’s struggling not only paying his bills and feeding his family but who also needs to get his fines either paid or on a payment plan so his license isn’t suspended anymore and he can drive to work,” Rollins said.
He said the rule was created with the help of a task force — on which Rollins served — appointed by the Virginia Supreme Court.
Rollins said, “This will help especially in places that did not have open minds toward pay plans, and there were plenty of those, probably still are some. The main difficulty today is not that people are reluctant to set them up, it’s that (different courts) have such different standards.”
Rollins said a person who owes fines in courts in several jurisdictions faces payments in each location. The new rule would tend to standardize some of those requirements, he said.
Suspension for drug convictions can be particularly burdensome, Rollins said.
“A drug suspension is a consecutive suspension,” he said. “Say you owe some fines and are unable to pay and then get convicted of a drug case — that six-month (suspension) does not start until the suspension for the fines is taken off record ... so it could take several years.”