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Judges split over new interlock law for DUIs

Virginia judges have split in their application of the new ignition interlock law for first-time DUI offenders.

Some judges have applied it only to cases in which the offense occurred after the law went into effect on July 1. Others have applied the new law to cases in which the driver was stopped before July 1, but the conviction came after July 1.

Some lawyers say it is a difference in interpretation that will likely go unresolved because of the limited number of cases in which the issue arises.

Conflicting views on the application of the ignition interlock law have divided the judges of the Fairfax County General District Court, reported defense lawyer Corinne J. Magee of McLean.

Several of the Fairfax judges pointed to the use of the word “penalty” in the interlock law. They reasoned the interlock requirement must be considered penal in nature and, therefore, cannot be applied retroactively, Magee said.

By contrast, other judges in the same court view driving as a privilege not a right, and use the date of conviction to decide whether to impose the new interlock requirement.

“My colleagues around the state agree that judges are going both ways,” said Magee, the immediate past president of the Virginia Association of Criminal Defense Lawyers.

It is an issue that probably will not be resolved on appeal, said Richmond traffic lawyer G. Barton Chucker. Too few cases will arise because of the small window of time involved.

“I don’t really see it as an appealable issue,” Chucker said.

Chucker said most of the judges who have addressed the issue in his cases have applied the new law prospectively. He said the interpretation generally turned on whether the judge viewed the change as substantive or procedural.

The administrative arm of the Supreme Court of Virginia viewed the interpretation of the new interlock law as a matter of judicial discretion.

Any legal analysis from the staff attorneys who serve as law clerks to Virginia trial judges “would have been privileged and confidential and would simply have presented the different sides of the issue, rather than providing ‘direction’ to judges,” said Katya Herndon, a spokesperson for the court.

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