13 February 2006

Ex Post Facto Traffic Fines?

Today's post comes from a reader (B.B.):
"I was reading that the [Virginia] General Assembly House of Delegates had finally submitted a proposal for funding the transportation initiatives that Governor Kaine has set as the priority objective of this legislation session.

I was curious about the point of increased penalties for drivers convicted of certain offenses, including Reckless Driving, Drunk Driving, Driving with a Suspended license, and any driver with 4 demerit points or more. Under the House plan, anyone convicted of these crimes within the past 3 years would pay additional fines.

Is this legal?"
Interesting. If it was just citations I think it might be viable. There is a disturbing tendency to classify punishments which do not include the possibility of imprisonment as "civil" and therefore not subject to constitutional protections. However, I must admit the cases which come to my mind are double jeopardy cases - not ex post facto and I think the analysis may differ. This clause
No Bill of Attainder or ex post facto Law shall be passed.

Federal Const. Art. I Sec. 9
is not part of the criminal law protection section but part of the general constraints on the Congress. As such, I'm not sure the protection is extended to State matters by the 14th Amendment. Admittedly, I have never argued it in any of my cases and therefore have limited knowledge. Under Virginia's Constitution Art. I Sec. 9 (The Bill of Rights) offers exactly the same protection:
[T]he General Assembly shall not pass any bill of attainder, or any ex post facto law.
However, I have read far too often in our appellate courts' cases that Virginia's Constitution only offers the same protections which are offered by the federal constitution (they are co-extensive).

On the charges which carry the possibility of jail time it would be double jeopardy to increase the punishment. The question then becomes, if Virginia bills everyone an extra $20 is anybody going to spend the money it would require to get a writ of prohibition and stop the enforcement? That would cost a lot more than just $20.

Someone out there must have had an ex post facto argument recently. If anyone can explain exactly how it would apply (or not) in this sort of case I welcome your comments.


KipEsquire said...

Ex post facto simply means that what was legal yesterday suddenly becomes punishable today. Traffic infractions were punishable yesterday, so XPF doesn't apply.

The better argument to make is an estoppel / "finality of judgments" argument and thereby claim a procedural due process violation -- if the penalty has already been issued (and paid), then one can and should argue that the government is barred by due process from revisiting it.

JDB said...

No need to haul out the 14th Amendment. Article I, section 10 says: "No State shall . . .pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . .." Section 10 actually has a lot of "no State shall" provisions.

Anonymous said...

The ex post facto clause applies to more than just making actions innocent at the time criminal. The second category could apply here if driving infractions are crimes. See Calder v. Bull (Chase, J.):

1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

3 U.S 386, 390.

I would think, however, in light of the cases upholding sex-offender registry laws requiring registration for offenses prior to the act, the VA law seems to be on solid ground. Surely points toward a license are less criminal than a mark of shame like the registries.

Anonymous said...

It is alot more money than $20. It is more like at least $150 and if it is a DUI, upwards of a $1000.