The Tax Increase That Dares Not Speak Its Name   Abuser fees are needlessly harsh and will be applied inequitably -- all because the General Assembly wanted to raise revenue without calling it a tax increase.   During its last session, the Virginia General Assembly passed HB 3202, the Comprehensive Transportation Funding and Reform Act of 2007, which Gov. Timothy M. Kaine signed into law with some modifications. Included in this law was a controversial provision for Abuser Fees, which provide for “bone crushing” fines for more severe motor vehicle infractions.   Regrettably, fueling the controversy is a large amount of inaccurate information provided about this law. Hopefully, through the use of questions and answers, I can inject accurate information about Abuser Fees into the discussion.   Question: What are Abuser Fees?   Answer: Abuser Fees are huge fines for traffic infractions. These fees consist of two parts:   1. severe or draconian fines for traffic infractions; and   2. penalties or “Bad Driver Fines” (in the form of civil fines) if a person acquires eight or more points from tickets on his or her driving record after July 1, 2007. Draconian Fines. This portion of HB 3202 mandates severe fines for traffic offenses in amounts ranging from $750 to $3,000. These fines are payable over a period of three years and are in addition to the penalty for the traffic infraction.   Bad Driver Fines. This section of the bill provides for a fine of up to $700 if a motorist obtains eight or more points on his or her license after July 1, 2007.   Question: What is the purpose of Abuser Fees?   Answer: Abuser Fees are part of the package of fees contained in HB 3202. This Transportation Tax Bill originated in the House of Delegates as part of a plan for its members to claim that they were solving the transportation problem without raising taxes. In reality, this ploy failed. Virginians, especially those living in Northern Virginia and Hampton Roads, are beginning to realize that they will have to pay for roads through various taxes by another name: fees.   Question: Was the Abuser Fees provision to HB 3202 added to improve safety?   Answer: No. The issue of safety was never (or rarely) discussed until elected officials experienced the "backlash" from the public for enacting such a harsh law. Accordingly, some elected officials are now defending these fees by claiming that they are necessary to deter bad driving. However, the logic of the “safety argument” is hopelessly flawed. If Abuser Fees actually deterred “bad driving,” it would result in a diminution of the amount of taxes (the Abuser Fees) collected. This, in turn, would reduce the revenues available for transportation, which invalidates the deterrence argument. The bottom line: Abuser Fees were not enacted into law for safety, but to raise revenue.   Question: How did Abuser Fees originate?   Answer: The primary advocates of Abuser Fees appear to be Delegates Dave Albo, R- Springfield, and Tom Rust, R-Herndon. They introduced “stand alone” Abuser Fees’ bills during the last three sessions of the General Assembly, before their “proposal” was incorporated into HB 3202.   Question: Will out-of-state drivers also pay Abuser Fees?   Answer: No. Abuser Fees will only be applied to Virginians, not residents of other states who receive tickets in Virginia.   Question: Are there any retroactive penalties associated with Abuser Fees?   Answer: The original version of HB 3202, as passed by the House of Delegates and amended in the House-Senate conference, contained a provision for retroactive penalties. This part of the bill was amended by Gov. Kaine. As originally passed by the House, if a person had eight or more points on his or her driving record on July 1, 2007, the Abuser Fees section of HB 3202 required a driver to pay additional fines for tickets that he or she may have received years ago. Additionally, because some points remain on a person’s driving record for five to eleven years, it was possible that some people would have had to pay “heavy” fines for tickets received before July 1, 2007.   Gov. Kaine amended the Abuser Fees portion of HB 3202 so that only points acquired after July 1, 2007 would count toward the “Bad Driver Fine.” Newspaper reports indicate that he amended retroactive penalties section of the bill because it may have been unconstitutional.   Finally, it should be noted that some elected officials are now claiming that there are no retroactive penalties in HB 3202. However, it was Gov. Kaine, not the General Assembly, who deleted the retroactive penalties portion of the bill.   Question: Would these retroactive penalties have been constitutional?   Answer: No. As originally written, if a person had eight or more points from traffic tickets before the bill was enacted, he or she would have been fined retroactively for the points from these prior tickets. Such a penalty would have violated both the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution and the prohibition against ex post facto laws that is contained in both the U.S. and Virginia Constitutions.   Question: Is the current version of Abuser Fees in HB 3202 constitutional?   Answer: Some lawyers also believe that Abuser Fees violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. These attorneys contend that because out-of-state drivers will not be subject to these fines, it denies equal protection of laws to the citizens of Virginia.   Question: Is it true that only bad drivers will have to pay Abuser Fees?   Answer: No. The argument that only “bad drivers” will pay Abuser Fees is incorrect. Regrettably, any driver who violates one of the many traffic laws subject to Abuser Fees can feel the sting of its harsh penalties for a one-time driving mistake.   It should also be noted that in 2002 the Virginia General Assembly criminalized a large number of traffic infractions by terming them Aggressive Driving (i.e. certain traffic offenses were made misdemeanors). However, not all of these traffic offenses are what the public considers aggressive driving. For instance, following too closely was defined as aggressive driving. The patrons of this bill (HB 1342) were Delegates Dave Albo and Jay O’Brien, now a state Senator).   Question: Is it true that some traffic laws will not be enforced?   Answer: No. This type of statement is misleading, as any duly enacted law can be enforced.   Question: Are there any additional problems with Abuser Fees?   Answer: Yes. To begin with, police officers should be used for their intended purpose: law enforcement. They should not be turned into “tax collectors” or revenue agents. Tax collection is not the function of law enforcement officers and there is clearly the potential for abuse when police officers are put into this role.   Second, Abuser Fees are a form of “super regressive tax.”  These fees (taxes) will impose a burden on the segment of society least able to afford to pay these fees: working families, many of whom are minorities. This may lead to the “law of unintended consequences” for these families.   The inability of working families to pay extraordinary Abuser Fee fines will result in suspended licenses; many will drive on a suspended license to get to their place of employment. What will happen next? Undoubtedly, some people will be ticketed for driving on a suspended license. Will these people then be jailed because they cannot pay the additional fees? This non-payment of Abuser Fees will begin a cycle that incarcerates many people for failing to pay this “new tax.” Does Virginia really want to re-establish debtor’s prisons, this time for failure to pay the Abuser Fees tax?   -- July 16, 2007