To understand all this this, you must first understand that Virginia is a strong Dillon Rule state. In other words, a locality (town, city, or county) cannot pass an ordinance unless it is specifically authorized to do so by the Virginia General Assembly. § 15.1-132.1. This statute was clearly meant to limit restitution to when a DUI (or watercraft equivalent) was "the proximate cause of any accident or incident resulting in an appropriate emergency response."
Since its enactment, this statute has been the subject of many minor adjustments, two major changes, and one attorney general opinion. In 2003, the first major change came in the form of a reorganization of the statute as well as the addition of a number of new convictions which were subject to it. However, it clearly remained only an authorization of the first part: "when providing an appropriate emergency response to any accident or incident."
Apparently, some localities started using this as a way to get restitution for normal incidents such as traffic stops for the listed offenses when they resulted in convictions. This was contrary to to, or at the very least a strained reading of, the requirement of an "emergency response." This led to Attorney General Opinion 04-054. Despite a problematic inability of whoever wrote this for the attorney general to know the difference between the stand alone noun "incident" (occurrence/happening) and "incident to" / "incident of" (accompanying concomitant event - most commonly seen as incidental), the opinion is correct when it states that (a) the statute as it then existed required an emergency not just a routine traffic stop/arrest, and (b) not all parts of it allowed restitution to law enforcement (as opposed to EMTs, fire, and rescue).
And yet, it appears that the problem remained. Localities kept trying to get restitution thru ordinances permitted by this statute and the claim that all law enforcement stops pursuant to the listed statutes are emergencies unto themselves without the additional requirement of a wreck or injuries. After all, an attorney general's opinion is just that - an opinion. He's neither an appellate judge nor a legislator and those are the people who are charged with making and defining law. People tend to assign great weight to AG opinions they agree with and discount the one's they disfavor. And it is at least arguable that every DUI is an emergency situation, because of the danger an incapacitated person behind the wheel of a two ton vehicle poses to us all.
In 2009, Delegate Iaquinto (now Judge Iaquinto, GDC Va. Beach) introduced a bill (HB2532) in an attempt to resolve this issue once and for all time. His specific purpose for introducing this bill was
Specifies that a locality that has passed an enabling ordinance is entitled to restitution from a person convicted of certain DUI offenses as compensation for law-enforcement response regardless of whether an accident occurs.
His amendments would have allowed law enforcement restitution through an entirely separate ordinance, but limited it to only violations of the statutes in the first enumerated provision of
A court will not interpret a statute in such a way that it renders other statutory language superfluous. Rather, we must assume the legislature chose, with care, the words it used when it enacted the relevant statute. Because we assume the legislature carefully chose the words used in the statute, it is our duty to give reasonable effect to every word. Coffman v. Commonwealth, 67 Va. App. 163 (2017).
When the General Assembly uses two different terms in the same act, those terms are presumed to have distinct and different meanings. I.D.A. v. Montgomery County, 263 Va. 349 (2002).And, of course, I'm sure we've all had drilled into our heads that the only people who can add language to a statute are the members of the General Assembly. See Holsapple v. Commonwealth, 266 Va. 593 (2003) (The appellant asks "this Court to add language to the statute the General Assembly has not seen fit to include, an exercise in which the Court is not free to engage.") & Burlile v. Commonwealth, 261 Va. 501 (2001) ("Courts are not permitted to add language to a statute nor are they permitted to accomplish the same result by judicial interpretation").
Incident is an extremely broad word indicating just about any action. Thus, contrary to the AG's opinion, YES a traffic stop pursuant reasonable articulable suspicion, which develops into probable cause, which leads to an arrest on a warrant or an arrest and release with a summons IS AN INCIDENT. The limiting part of the statute prior to the Iaquinto amendments was the language requiring an "appropriate emergency response", not the word incident.
Furthermore, this is the most commonsense reading of the word incident as it pertains to the statute. We know what an accident is. What else similar could happen on the road that qualifies as an incident? Presenting reasonable articulable suspicion leading to a traffic stop and interaction with an officer, leading to probable cause, and concluding with a warrant or a summons is the most likely thing other than an accident that would occur on a road involving the listed violations, the defendant, and a police officer. This is what you get when you actually do a noscitur a sociis analysis rather than merely quoting the phrase and saying it supports your conclusion.
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