The General Assembly has passed, and the Governor has signed, a revision to the Virginia DUI statutes that will have dramatic, and sometimes counter-intuitive, repercussions for those convicted of DUI. Now, for a lot of first offense DUI’s, the convicted person will only be allowed to drive a car equipped with an Ignition Interlock Device (IID). Here is the LIS link with the changes.
Let me say at the top that I think that there are many cases for which IID is entirely appropriate. But there are also many DUI cases for which IID is unnecessary and unnecessarily expensive. First, though, some explanation…
An IID is a device that hooks into the ignition system of the car that requires you the driver to blow into the device at random times; if the breath contains more than a minute quantity of alcohol, the car shuts down and it reports a violation. The driver is then going to end up back in court for violating a probation requirement, and will probably lose his license entirely and get an additional jail term.
At the moment, the law is that IID is not required for first offense drunk driving, but it is required for second or subsequent offenses, and it is required for those with blood alcohol content of .15 or higher. What this means is that someone who gets what I will term a “garden-variety” first offense DUI do not now have to have IID installed on their vehicles.
Though the concept of an IID is fine, there are some real problems for many people:
- The law is not just that you have to have IID on the vehicle that you drive — you have to have it on any vehicle registered to you. If you have three cars, you have to have IID installed on each of them, even if you don’t drive it yourself. So I have a car that my daughter drives in Pittsburgh, where she is a student; I don’t drive the car, but it is registered to me because I bought it. I have to have IID installed on it, even though no one who has ever been convicted of a DUI will drive it. In fact, it would be illegal for my daughter to drive the car, because only the person with the DUI can operate the motor vehicle that has the IID on it. So either I transfer the title to my daughter, or I put it in my wife’s name.
- Let’s say that I only own 1 vehicle, and my wife and I both drive it. If I have a DUI and am subject to the IID requirement, she is not allowed to drive it. So I guess we buy my wife a car so that she can drive.
- Let’s say that I am a student at UVA, and I get a DUI. (Hard to believe, I know…) My car is in my father’s name back in Connecticut. I can’t get an IID installed on a car that I don’t own. So I can’t drive from my apartment to a parking lot at school, or from my apartment to the job that allows me to pay my tuition.
- Let’s say that I don’t have a car of my own, but I sometimes need to drive my boss’s car to get supplies for my place of employment. I can’t do that under this statute.
- I have a client right now who is a traveling installer of high-end manufacturing equipment. His job requires that he drive rental cars when he flies to the place where he will be installing the equipment. You can’t install an IID on a rental car. So he will just have to use a taxi for everything, or public transportation, even when the factory that he is going to is 50 miles from the airport.
An IID requirement is a big deal. It costs about $75 to install, plus about $60 a month. So you can add another $450 to the cost of a DUI. Plus, it is prone to false positives. Plus, at least around Charlottesville, there are not enough units available and you may have a wait of 4 weeks or more before the IID can be installed. Surely you can drive during that time? Actually, no — during that time your license is completely suspended.
And here is an odd repercussion — I believe that it is most likely that a trial court would hold that the IID requirement applies to all convictions entered after July 1, not just to conduct that happened after July 1. Surely this violates the Ex Post Facto Clause of the U.S. Constitution? No, because it is most likely that this IID requirement will be deemed to be “procedural,” not “substantive,” meaning that the law that would be applied would be the law in force at the time of the conviction, not at the time of the offense. So if you get a DUI in, say, June, you may need to have a trial RIGHT AWAY because you don’t want to wait until a July trial date.
There is one little bit of good news for people convicted of DUI’s — particularly for students. If you get a DUI and your BAC is less than .15, your privilege to drive is suspended for 12 months, and in that first 12 months you can only drive if you get a restricted license, allowing you to drive to and from work, or to and from school, or subject to a long list of exceptions. If you are a student who doesn’t need to drive — let’s say that you live in a dorm, and you don’t have an outside job — you can simply walk for 12 months. But if you get a DUI and your BAC is .15 or higher, you have to juggle not only the restricted license provision but also the IID provision. But the IID provision says that whenever you get a license, the first 6 months of a license have to be on a car equipped with an IID. Apparently, the legislators who had drafted the amendments in 2006 that called for IID’s had thought that they had written the statute so that someone could satisfy the requirement just by walking for 6 months. But the judges, and the DMV, interpreted the statute to mean that it didn’t matter how long you walked — whenever you got your license back, whether restricted or unrestricted, you still had to satisfy the 6-month IID requirement. And because of reciprocity between states, if you were a Montana native going to school at UVA and you got a DUI so that your license was suspended, whenever you were to go back to Montana — maybe three years later – Montana would have the duty to impose the same IID requirement. As of July 1, you will probably be able to satisfy the IID requirement by not driving at all for 6 months, thereby giving effect to what the legislators had meant to do 6 years ago.
There is another winner in all of this — the company that makes the IID devices approved for use in Virginia. There are two companies in Charlottesville/Albemarle authorized to install them in Virginia. The first is Dräger, a privately held company based in Germany. The second is Smart Start, Inc., which I believe is also privately owned. In Culpeper you can go to National Interlock Service, Ltd., a privately held Wisconsin firm. Some of the websites advertise that franchises are available because providing IID’s is a growth opportunity. I don’t know whether any of the legislators who think that we need more IID use own any piece of those companies.
These statutory changes will need some close examination as judges, prosecutors and defense attorneys try to figure them out.