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Beware post-July 1 Virginia DWI trials – The ignition interlock looms ahead

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Fairfax DUI lawyer. Image from National Institute of Standards & Technology.

On March 2, 2012, I blogged that Virginia’s House of Delegates passed a Senate-passed bill mandating the ignition interlock for all people convicted of drunk driving, whereas beforehand those with first-time DWI convictions for a blood alcohol content under 0.15 did not face such a statutorily mandated draconian requirement. Of course, in short order, Governor McDonnell signed the bill into law five days later, on March 7.

July 1, 2012,  is the effective date of Virginia’s new ignition Interlock law, which is the regular effective date for new laws unless provided otherwise by legislation.

For any client convicted of DWI starting July 1, I will argue that the ignition interlock provision is a substantive penalty that can only be applied to those arrested on and after July 1. U.S. Const. art. 1, § 9 (“No Bill of Attainder or ex post facto Law shall be passed.”) However, at a Fairfax County bar continuing legal education program held yesterday, a Fairfax District Court judge indicated that the new Interlock provision will be treated as procedural, so will apply even to those arrested for DWI before July 1, 2012 but convicted after June 30.

Consequently, if you are arrested for DWI before July 1, 2012, do your damndest to hold your trial before July 1. Unfortunately, for those arrested on and after May 1, 2012, that will become harder in such counties as Arlington and Fairfax, where Arlington’s first post-arraignment court date is a pretrial date for receiving discovery and engaging in settlement negotiations, and where Fairfax General District Court judges ordinarily give an automatic first-time in-court continuance to either party. On the other hand, to avoid a post-June 30 conviction with a mandatory interlock, are we going to see pre-July 1 arrestees lining up to plead guilty before July 1 to avoid the Interlock? Beware taking any such action before discussing the tough implications of a Virginia DWI conviction with a competent attorney.

The new ignition interlock law does not state whether or not it only applies prospectively to those arrested on or after July 1, as opposed to applying to anyone convicted on or after July 1, even if arrested before July 1. Even when removing ex post facto concerns from the equation, critical Fifth/Fourteenth Amendment Due Process concerns hang in the balance over such matters as mandating the ignition interlock for pre-July 1 arrestees convicted after June 30 (1) whose conviction after June 30 only takes place because the prosecutor obtained a continuance over the defendant’s objection and (2) who are convicted of DWI in General District Court before June 30, but appeal to Circuit Court and get convicted de novo after June 30.

In any event, beware any Virginia trial judge who feels s/he is legally bound to order the ignition interlock for all post-June 30 DWI convictions on pre-July 1, 2012, arrests. This issue is big, unfortunately.