Updated again: 12/28/07
Having failed to learn their lesson about unintended consequences and the dangers of crafting bills that are just a little too "creative" in trying to get to an objective in a roundabout way, two of the primary authors of the abusive driver fees (crafted to fund highways creatively by taking money from the pockets of people that they figured had no political constituency), Tom Rust and Dave Albo have offered bills that, I assume, they believe will be seen as "cracking down" on "illegal aliens" without generating backlash among average Virginians or incurring political cost for either patron (unlike their last foray into creative road funding).
First, some background. Under current Virginia law, it is a class 2 misdemeanor to drive without a valid license and a class 1 misdemeanor for a second offense. Also, under Virginia law, police officers are required to issue you a summons, rather than arrest you and take you into custody, for any such offense unless the officer has reasonable cause to believe that you will not appear in response to the summons, or that you are a danger to self or others or that you won't stop committing the offense for which the summons is being issued.
So, under current Virginia law, if your not yet fully licensed teenage son "borrows" your car and gets caught driving without a license, he would normally be issued a summons for driving without a license. Or, if you move to Virginia from another state and are caught driving on your previous state's license after the 60 day grace period has elapsed, you would now be issued a summons for driving without a valid Virginia license.
The Rust and Albo bills (HB91 and HB 104) would change Virginia law to say both for never licensed drivers and for those whose license is not "valid," i.e., unrenewed?, suspended or revoked:
"Notwithstanding any other provision of law, any person charged with a violation of this section shall be placed under arrest and shall have his fingerprints and photograph taken."
Now, the intent of this bill obviously is to require police to arrest any "illegal aliens" driving in Virginia without valid licenses so that the Crime Commission's requirements for post-arrest/post-conviction inquiry into citizenship status will kick in, the denial of bail proposals will apply, and all of these persons will be in jail subject to detainer and deportation.
But, to get there, Albo and Rust have to apply the mandatory arrest, fingerprint and photograph requirement to everyone caught driving without a valid license regardless of circumstance to avoid any claim of racial profiling or discriminatory application.
What will the cost of this mandatory arrest requirement be in terms of lost policing power while officers are transporting these traffic violators to jail and processing paperwork? How will Virginians feel when their teenagers, forgetful grandmothers (an unrenewed license is not "valid,") and others are subject to mandatory arrest, fingerprinting and photographs?
And, wait, the proposal doesn't stop there.
In addition to mandatory arrest and fingerprinting and photographing, the Rust/Albo proposal, HB 104, also mandates that the officer who arrests you impound your car for 30 days on a first offense.
Mandatory impoundment was first imposed in Virginia for driving under the influence and then for 7 days. It is now up to 30 days, but has continued to be used primarily as a sanction for drunk drivers, those adjudged habitual offenders and for those driving on a revoked license (i.e., those who've lost their licenses for drunk driving or other egregious safety threatening driving offenses).
Under the Rust/Albo proposal, however,the officer will have to impound the vehicle of any person caught driving without a license. That includes your family car if your teen is out for a ride with his learner's permit without an adult in the car. And, you might be able to get it back before the 30 days are up if you can prove to a judge that you didn't know that the kid had the car and that it is your only car and having it impounded for 30 days would cause your family a hardship.
Bob Marshall (no fan of the abusive driver fees, but no stranger to creative bill drafting) also has gotten into this act. He proposes in HB 63 that anyone caught driving without a license twice in three years forfeit his vehicle (or the vehicle of another person who knew he was driving it) to the state. (Yup, that means the state gets it and you don't get it back; the money from forfeitures goes into the literary fund which funds schools).
The arresting officer would seize the vehicle at the time of arrest and deliver it to the sheriff. There is another provision in the Marshall bill that appears to say that, if the vehicle doesn't belong to the driver, it would be subject to impound rather than seizure and someone would pay a fine equal to the market value of the vehicle, but the language is so poorly drafted it's not entirely clear what it would do since it's not clear who has to know what:
Any vehicle knowingly used to commit a second violation within three years of § 46.2-300 by a person who is not the owner thereof shall be subject to impoundment under § 46.2-301.1 and the person shall be fined an amount equivalent to the fair market value of the vehicle.
Now, it may well be that all Virginians will be quite happy to live with the far reaching consequences for citizens and legal residents of the Rust/Albo/Marshall creative efforts to "crack down" on "illegal immigrants". Time will tell what price Virginians, and, particularly, the middle and moderate income people least likely to be able to pay the legal fees necessary to get out of the snare of impoundment, are willing to pay to make Virginia "the most inhospitable state in the nation" for "illegal aliens."
P.S. Albo wants to amend, not repeal, the abusive driver fees so anyone who is caught driving after his/her license is suspended for nonpayment of the fees will be subject to the mandatory arrest and impound requirements.
I asked Delegate Albo if he thought that I had gotten this wrong and promised to pull the post if I did have it wrong. His response focused on the P.S. regarding drivers whose licenses have been suspended for failure to pay the abusive driver fees:
That would not be a 46.2-300 Driving Without a License. It would be a Driving on Suspended 46.2-301, and not subject to my bill. Now there is a argument that a CA could charge under the 46.2-300, so probably need to clarify my bill by saying in only applies to those who have never been licensed, and I will work to get that in shape for session.
But, even with the amendment Delegate Albo is saying he'd make that leaves teens who are caught driving on a learner's permit (i.e., without a valid license), any new resident of Virginia who doesn't get a VA license within the 60 day grace period, and, arguably, any person who simply forgets to renew his/her license on time subject to the mandatory arrest and impoundment requirements.