Virginia Lawyers Weekly VA Lawyers Weekly
Some lawyers are encountering clouds of confusion about whether the state’s automatic license suspension for some first-offense marijuana offenders is still in effect.
Virginia judges are said to be taking different approaches to whether the marijuana offenders must have their driver’s licenses suspended for six months in light of legislative changes that are contingent on continued federal highway funding.
State Sen. Ryan T. McDougle spoke of a “dichotomy of justice” describing the situation at an Oct. 20 meeting of the state Committee on District Courts. “I think ultimately you’re going to have people receiving different levels of justice,” McDougle said.
McDougle said Gov. Terry McAuliffe could clear up the confusion and put the new rules in operation with a one-sentence certification to satisfy terms of federal regulators. McAuliffe’s office did not respond to a request for information on the status of the legislation as of press time.
Reform approved
Responding to calls for reform of harsh license suspension rules, the General Assembly this year passed bills that would remove a six-month automatic license suspension for some defendants charged in marijuana possession cases.
Critics said Virginia’s marijuana penalties can be harsh. A first offender caught with less than a half an ounce can be convicted of a misdemeanor punishable by up to 30 days in jail, a $500 fine and a six month driver’s license suspension.
The Code allows a first offender to get a deferred disposition, where the judge takes the case under advisement for a year while the defendant completes probation and community service requirements. A deferred disposition could mean no conviction on the defendant’s record. Under the previous law, however, those defendants still had to lose their driver’s licenses for six months.
The reform bills passed this year would change that suspension penalty. Juveniles convicted of marijuana possession still lose their licenses, but, for adult defendants, judges would have discretion as to a license suspension.
Former Secretary of Public Safety Randy Rollins, who runs a non-profit that helps restore driving privileges for ex-offenders, has urged an end to mandatory suspensions that limit defendants’ ability to get or keep employment. The penalty is especially unfair when the offense has nothing to do with driving, he says.
During legislative debate, bill co-sponsor Sen. Adam Ebbin, D-Alexandria, said about 39,000 Virginians lose their licenses each year for drug offenses.
Co-sponsor Sen. Bill Stanley, R-Moneta, said that, as an attorney, he had seen young people hurt by the suspension policy. Stanley told the Capital News Service in January the legislation was designed to provide an “opportunity of a second chance for making a dumb mistake.”
At a January House subcommittee meeting, former college student Ryan Johnson described his reaction to a six-month suspension for a possession charge: “I said to myself, ‘Why is my license being suspended for something that didn’t involve a car or driving? And how am I supposed to get to school and work?’”
Johnson told delegates his license suspension was the most disruptive part of his sentencing.
Contingency questions
As passed and signed by McAuliffe, the reform legislation would have been effective July 1 as long as state regulators received written assurance from the Federal Highway Administration that Virginia would not lose federal funding as result of the changes.
Virginia requested that written assurance with a May 31 letter to the FHA. The feds responded June 26 saying no federal funding would be withheld as long as the governor provides a written certification as to Virginia’s conformity with federal law by Jan. 1 of each year.
Opinions differ as to whether that message gives the “all clear” for the reforms to take effect.
Wise County General District Judge Clarence E. Phillips said he was surprised to hear that some judges believed the contingency had been met. Another judge said some judges may believe they have a free hand as long as someone has not expressly told them otherwise.
Del. Les R. Adams, R-Chatham, said he had been made aware that district level judges were responding differently to the contingency question, even though there has been no indication that federal funding was jeopardized by the change in state law.
“It may be the case that the contingency condition is unnecessary and may be removed with future legislation,” Adams said.
McDougle said the confusion could be cleared up if the governor signed a new “Drug Offender’s Driver’s License Suspension Certification” as he has in years past. Attorney General Mark Herring also could end confusion by speaking out, McDougle said.
Phillips said it was up to the legislature to provide guidance.
Stanley said if McAuliffe did not act, he had a bill being drafted for the 2018 session to repeal the problematic enactment clause.
Herring’s office did not respond to a request for comment as of press time.
Updated Oct. 25 to add comment from Adams and Stanley.
