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What’s Driving Got to Do With It? How the DMV is Conscripted to Do the Dirty Work of the Criminal Justice System

In the aftermath of the Ferguson, Missouri protests of the death of Michael Brown in 2014, articles were written about the exorbitant fines assessed against residents of Ferguson, mostly minorities, and how these fines both led to and exacerbated a cycle of incarceration and poverty. https://www.washingtonpost.com/news/morning-mix/wp/2015/03/05/ferguson-shows-how-a-police-force-can-turn-into-a-plundering-collection-agency/

Ferguson and courts notorious for excessive fines for minor traffic fines and quasi-criminal offenses (noise laws, loose dogs, etc.) aren’t the only way people are sucked into the criminal justice system. State departments of motor vehicles (often known as DMVs) are being used to criminalize non-driving behavior. Increasingly exorbitant fines for minor traffic infractions are leading to criminal sanctions that entrap not just the poor, but the unwary of any income level.

Let me give you an example. If you get a driving under the influence conviction in Virginia, the DMV will automatically suspend your license for one year. This is an administrative act, not an act of the judge who hears your case. You may appeal to the judge, not the DMV, to give you a restricted license to go to and from work, school, medical appointments, etc. This is a very restricted license and if you are stopped and cannot prove you are within the parameters of the restriction, you are charged with the misdemeanor of driving on a suspended license. In Virginia, this carries a big fine, up to a year in jail, and an additional suspension of your license.

All of this is well known and in the driving laws. But what many people don’t know is that the DMV may administratively suspend your license in Virginia (and other states) if you have ANY drug conviction at all, no matter if the amount of the drug is so small that your case was diverted or dismissed after you attend a mandatory drug program. And in many states (including Texas, Florida, North Carolina, and Michigan) your license may be administratively suspended if you fall behind in child support or are unable to pay a court fine for any kind of offense (related or unrelated to driving).

In order to get a restricted license, when your license is suspended, you have to go to court at least twice (try navigating this without an attorney) and get a restricted license. Then you have to pay upwards of $250 in fees to get that restricted license. Obviously, if you have to come up with the money for a restricted license, then you are taking away from money to pay fines. But who, unless you live in a city with good transportation, can work without a driver’s license? Few people can afford the time and money it takes to get a restricted license, so they drive outside the restriction, starting (or furthering, if they had a DUI or drug conviction) a downward spiral into the criminal justice system in which they get deeper in debt and get increased jail sentences (meaning no work at all) often for something that had nothing to do with driving. What’s the upside to this? It keeps the money flowing to the courts and the local jails full.

The Legal Aid Justice Center located in Falls Church Virginia, a public interest legal organization, recently filed a suit against the DMV in Virginia, alleging that the practice of license suspension for non-payment of fines is a violation of due process.

The suit also alleges that the practice is “fundamentally unfair”) to which I say, the criminal justice system has never been fair). The suit reports that in 2015, the Virginia DMV suspended over 360,00 licenses for unpaid court costs or fines, 38% of which were for offenses unrelated to driving. The practice in Virginia and other states is the subject of an excellent report by the Brennen Center for Justice.

Over the years I have practiced law, traffic fines and court costs (for traffic and other minor offenses) have exploded. Court costs are your penalty for contesting your case. If you pay the fine without contest, there are no court costs, a financial driver that leads people, including myself, to pay the damn ticket. In jurisdictions where I practice, what used to be $20 court costs are now close to $100 (and some more), and the lowest traffic fines are no longer $25 but also close to $100. Some traffic fines in the District of Columbia are now an obscene $250-$1,000 (many “issued” by traffic and speed cameras) and non-payment leads not only to license suspension but to towing your car if it is found on the street with unpaid fines. To add further insult to injury, unpaid fines accrue additional cash penalties in some jurisdictions (often doubling or tripling the original fine amount) and most jurisdictions impose interest at varying rates until paid.

How many people can pay their fines and costs without going into debt? If you have a credit card, you can pay with a credit card, but the court charges a “convenience” fee for doing so. But many have lost credit long ago, because they don’t have a job, often due to license suspension.

I have seen clients spiral into years of trouble with the court system because of draconian fines and DMV suspensions of licenses. Those without access to public transportation or family members and friends to transport them to work will take the chance and drive on a suspended license. Many will get caught and go to jail, losing whatever job they had. If they must pay child support, now they don’t have a job with which to pay child support or fines.

The courts profit from this. As was reported about Ferguson, Missouri, court fines kept the town afloat. Even in affluent Northern Virginia courts say that they can’t function without increasing fines. DC traffic cops gave out more than 2.6 million tickets in 2015, with fines assessed at almost $200 million primarily on the backs of mainly working people trying to get to work and park their cars in the District. “Speed cameras” alone brought in almost a half billion dollars in revenue in nine years.

What’s the solution? First, stop giving out tickets for every minor offense (a busted tail light is a favorite infraction and often a pretext for a stop that leads to further charges and, if you are Philando Castile, killed last week by Minnesota officer, in an extra-judicial execution. Castile had been pulled over while driving at least forty-six times from the time he got his license, and his license had been suspended and reinstated many times for non-payment of fines. Since stopping and citing for minor infractions is too much to ask, as it would end the pretext stops (which is really what a “tail-light out” stop is about, the cop is hoping you will be given permission to search your car and find a little weed so you can be arrested, charged with a misdemeanor, and your car impounded) and make too much of a dent in traffic fine revenue, stop the insane escalation of fines and court costs for minor infractions. Governments say a license to drive is a “privilege, not a right,” and they use that privilege to marginalize those who cannot afford cabs or Uber or Lyft or who live nowhere near public transportation. Driving isn’t a privilege when you can’t live without it.

Next, stop tying non-payment of fines and child support to driver’s licenses. These practices contribute to poverty and crime, which, in the final analysis may be what it is all about, isn’t it? Keeping the poor poor, marginalizing further those already on the edge, and most important, keeping the prison/jail pipeline flowing with new “convicts” who, guess what? Have to answer that dreaded “have you ever been arrested for a misdemeanor” box on employment application with a yes. And yep, you guessed it, be unable get a job to pay those fines, costs, and interest. Ever. And if convicted of driving on a suspended license (which includes outside the restriction parameters if they had a restricted license) three times, they may be declared a “habitual offender,” a felony in some states, subjecting them to prison time and, you guessed it, another fine ($2,500 in Virginia) and license revocation of up to ten years. During the period of revocation, a restricted license is not available. Having achieved felon status, they have even a slimmer chance of every finding work, and no chance of getting a student loan or having access to other public benefits.

And so it goes.

Elaine Cassel practices law in Virginia and the District of Columbia.

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