Issues concerning the adoption of an administrative per se statute by the Commonwealth of Virginia.

Virkar, Salil R; Wall, James D; Kelly, Veronica M · 1989 · ROSA P / Virginia Transportation Research Council (VTRC)

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Summary

This report, produced by the Virginia Transportation Research Council in 1989, addresses the legal and practical considerations for Virginia to adopt an administrative *per se* statute. The primary motivation is to combat drunken driving, which caused significant economic losses and fatalities in Virginia, particularly among young adults. The authors argue that existing criminal justice processes are ineffective due to delays, low conviction rates, and the ability of offenders to escape severe penalties. An administrative *per se* statute, which allows for the summary revocation of a driver’s license by an administrative agency upon evidence of a blood alcohol concentration above a prescribed level, offers a swift and certain sanction that circumvents these judicial inefficiencies. The study employs a legal analysis of constitutional precedents and a review of empirical data from other states. The authors examine U.S. Supreme Court rulings regarding due process and double jeopardy to determine the constitutionality of such a statute. Specifically, they apply the *Mathews v. Eldridge* balancing test to assess whether summary license revocation violates the Fourteenth Amendment. Additionally, the report reviews the statutes and experiences of the twenty-one states and the District of Columbia that had already enacted administrative *per se* laws, alongside studies documenting the impact of mandatory license revocation on highway safety. The findings indicate that an administrative *per se* statute is likely constitutional if properly drafted. Regarding due process, the authors conclude that the government’s compelling interest in highway safety justifies summary revocation as an "emergency" situation, provided that a prompt post-deprivation hearing is available. The risk of erroneous deprivation is mitigated by strict controls on chemical testing and officer affidavits. Concerns regarding double jeopardy are dismissed because administrative sanctions are civil in nature, distinct from criminal penalties. Empirically, the report cites an Insurance Institute for Highway Safety study suggesting such laws could reduce alcohol-related fatal crashes by 4.6 percent, and a U.S. Department of Transportation study indicating that mandatory revocation laws in Wisconsin reduced such crashes by 25 percent. The significance of this report lies in its recommendation that Virginia adopt an administrative *per se* law to improve highway safety and qualify for additional federal funds. The authors conclude that such a statute provides law enforcement with an effective tool to immediately remove high-risk drivers from the road, addressing the inadequacies of the criminal justice system. The report offers specific statutory recommendations, including clearly stating the government’s safety interest, establishing reliable factual bases for revocation, and ensuring immediate notice to arrestees, to ensure the law withstands constitutional challenges.

Key finding

An administrative per se statute is constitutionally permissible under due process and double jeopardy clauses and can reduce alcohol-related fatal crashes by 4.6 percent and overall alcohol-related crashes by 25 percent.

Methodology

review

Provenance

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Topics

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• dui enforcement
• licensing policy
• drowsy as impairment

Information type

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• Applied Guidance: policy recommendations