HOT-Lane Collection Actions Time-Barred

In this action to collect “civil penalties” of $2,211.70 for a driver’s violations of HOT-designated traffic lanes in Fairfax County, including administrative fees, the actions were not filed within the applicable one-year time limit, and the Fairfax Circuit Court dismisses the actions as time-barred.

Transurban argues that the HOT lanes statute is civil on its face and in its application, therefore it is governed by the two-year civil statute of limitations in Va. Code §§ 8.01-243 and 8.01-248. Defendant opposes that and asserts that the HOT lanes charges fall under Code § 19.2-8, which requires a “prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement” to be brought within one year, pointing out that the HOT lanes statute subsection (C)(3) refers to imputation of a “civil penalty” for violations. In response, Transurban argues that because this is a civil matter between two non-government parties, it is not a “prosecution” and thus Code § 19.2-8 does not apply.

While this may be an action with only civil penalties, Transurban is prosecuting violators of the HOT lanes statute in the shoes of the commonwealth. Government actors, such as the commonwealth, frequently bring prosecutions for civil fines and penalties. This court can find no case law on “civil penalties” recovered from one private entity by another, as the law commonly refers to such amounts as “damages.” The Code provides that Transurban personnel are considered conservators of the peace for the sole and limited purpose of mailing such summons for civil violations of the HOT lanes statute.

Also, the money judgment rendered in the HOT lane’s violation case is not entered as a judgment payable to Transurban, but is instead paid into the commonwealth. The fact that the money is paid first to the commonwealth, regardless of what portion is eventually remanded to Transurban, further supports the conclusion that an action under the HOT lanes statute is a “prosecution” resulting in a pecuniary penalty for purposes of Code § 19.2-8. The limitations period for fling such an action is therefore one year. As Transurban failed to file any of these actions within one year of the alleged violations, the actions are barred and dismissed.

Commonwealth v. Cooley (Smith) No. MI-2014-2473, April 7, 2015; Fairfax Cir.Ct.; Caleb Kershner, Marla J. Diaz for the parties. VLW 015-8-037, 4 pp.