NOTE: Virginia Lawyers Weekly (Aug. 22, 2016) interviewed me, a few other Northern Virginia lawyers, and additional people about my below blogpost’s advocacy to abolish VASAP, and about some other concerns this blogpost raises about VASAP

As states go, Virginia seems to be one of the more favorable for free enterprise, except in two areas. First, only state ABC stores may sell hard liquor. Second, those convicted of DWI in Virginia must complete VASAP (the Virginia Alcohol Safety Action Program).

Ideally, I would want my Virginia DWI clients to have the option of bypassing VASAP entirely, and simply proving completion of a private state-licensed alcohol education program. The profit and competitive incentive of private enterprise is conducive to more efficient, responsive, quality and flexible service from well-run private alcohol and drug education programs than from VASAP. For just one instance, whereas some of my clients need to wait weeks for VASAP to start their classes, and VASAP offers limited flexibility with rescheduling classes for my clients’ work and travel needs, private programs can offer to start classes sooner and to be more flexible in rescheduling classes.

Unfortunately, Virginia DWI law provides for those convicted of DWI to complete VASAP. Additionally, by definition, my clients whose cases are pled down from DWI to wet reckless must attend VASAP.

I prefer avoiding VASAP as much as possible, not only for the reasons outlined above, but also because VASAP is a government agency that reports alleged probation violations to the court, whereas a suitable private alcohol education program may be more supportive and understanding to the probationer who may seem at first blush to be running afoul of probation obligations. Moreover, I can expect a quality private alcohol education program to provide my client better support than VASAP throughout my client’s case, including fashioning an individualized program, providing a better individualized written report on the evaluation of my client’s situation and progress with the program, and providing proactive recommendations for alternatives to finding any probation violation and to incarcerating for a probation violation.

My alternative ideal is for my clients who are required to complete VASAP, to be permitted to complete private alcohol education and for VASAP to give credit for such private alcohol education. That is at least a possibility for my clients who reside outside Virginia. Of course, such clients then end up paying an administrative fee to VASAP and an additional fee to the out-of-state alcohol education program.

I often advise my Virginia DWI clients proactively to register, and even begin, an alcohol education program (whether private or VASAP), in advance of their trial date. By doing so, that might assist with settlement negotiations (sometimes even to obtain a disposition better than DWI) and with any possible sentencing. From a financial standpoint, entering VASAP proactively rather than a private program proactively, means that VASAP has already been paid, in the event VASAP is ordered as part of a sentence. VASAP should not be expected to give credit for private alcohol education classes taken by those who are both Virginia residents and Virginia licensees.

With some particularly troubling DWI cases, a judge may only permit restricted driving privileges with VASAP approval, which approval I only expect after completing the VASAP classes. When I see such a possible risk ahead, I point that out to my clients.

For DWI defendants charged with repeat offenses or high blood alcohol content, VASAP might require an evaluation for possible additional treatment by an outside substance abuse provider. Some outside providers might be more inclined to recommend additional treatment than others, and additional treatment means the participants’ paying more money than merely attending a basic VASAP program. Therefore, with my clients who are told to get such an evaluation, it is important that my client have input into which treatment provider will provide such an evaluation. A treatment provider that recommends additional treatment stands to profit from that recommendation; it would be better if that profit potential were eliminated by taking the evaluator out of the picture of providing possible treatment.

When my clients proactively enter VASAP without a court order to do so, they can be expected to be treated by VASAP as if they had been court-ordered into VASAP. I take it that a quality private alcohol education program can be a more pleasant and human experience than VASAP, with VASAP’s role including that of a quasi-probation agent that reports alleged program violations to the court for those who are court-ordered to complete VASAP.

Whether attending VASAP proactively or by court order, my clients can expect to complete questionnaires that include questions about the quantity and types of drinks they consumed on the incident date, their drinking history, and their illegal drug use history. In their VASAP classes, my clients can expect to be encouraged or advised to discuss their DWI case. My clients have a Fifth Amendment right to remain silent about their cases, and no sufficient guarantee will prevent class participants from repeating what my clients say in class, so I address with my clients the importance of not disclosing non-public information about their cases at VASAP classes, versus such public information as having been charged with DWI in County X on date Y. If the VASAP instructor or counselor has an issue with my client’s asserting his or her Fifth Amendment rights, I am happy to address that with VASAP.

If VASAP permits my out-of-Virginia resident client to attend alcohol education out of state, it is important to watch against inaccurate reporting back to VASAP from the out-of-state program, lest the out-of-state program provide inaccurate information that leads to a probation violation charge.

Should Virginia residents with out-of-Virginia DWI cases attend VASAP? Virginia does have private alcohol education classes (listed here, for instance). I prefer to avoid the risk that VASAP might report an out-of-state DWI case to the Virginia Department of Motor Vehicles, which could then risk the DMV’s issuing a driving license suspension notice to the Virginia licensee (which then calls for moving for a restricted driving license from the appropriate Virginia General District Court).

Unfortunately, my Virginia-licensed clients convicted of DWI in the United States District Court in Alexandria are required to complete VASAP as a condition of their probation. The Virginia DMV has ended up being notified of Alexandria federal DWI convictions, which I assume results from being told of the conviction by VASAP. The DMV has then notified my clients of a license suspension resulting from the federal DWI conviction. When the DMV advises of such a suspension, the licensee should seek restricted driving privileges from the appropriate Virginia General District Court, preferably with the assistance of a lawyer.

Clearly, VASAP should be abolished, and should be replaced by private drug and alcohol programs. Until such abolition, VASAP should be reformed to more routinely give credit for participation in private state-licensed alcohol and drug education programs. Unfortunately, VASAP is such an entrenched system — and through its statutory dominance likely has stifled the number of available quality private programs — that I am not holding my breath for such changes to take place.