23 March 2019

Restitution for Traffic Crimes in Virginia

Virginia's § 15.2-1716: Reimbursement of expenses incurred in responding to DUI and related incidents is broader than its title states in that it applies to more traffic violations than DUI, but the title does give a general sense as to its purpose. It allows localities to be reimbursed when there is an emergency or when a summons or warrant is given pursuant to certain listed statutes.

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. § 15.2-1716 is a statute authorizing localities to pass a specific ordinance with two potential parts. It started as authorizing only the first part. In 1994, the General Assembly passed into being the predecessor of the current statute, § 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 § 15.2-1716 (the various DUI statutes). His amendment was separated out to be easily understood, would have led to a separate easy to understand ordinance, and had commonsense constraints on its application. Then it went into the sausage mill that is the General Assembly.

By the time the sausage had been made (the bill passed), the amendment had been moved from its separate section to become the second sentence of subsection A where it was bound to cause confusion. The language was also changed so that it didn't authorize a separate ordinance but only allowed a new provision to be added to the same ordinance leaving room for more confusion. As well, it now no longer applied to only the DUI convictions of the first enumerated provision; it applied to all the enumerated provisions (1: DUI / 2: Reckless Driving / 3: Driving Unlicensed / 4: Hit and Run). Finally, in subsection B it added "arrest" as a third condition triggering no more than $1,000 in restitution (between accident and incident).

So now § 15.2-1716 looks like this. The first sentence in subsection A is still limited to emergencies. The only thing tying it to the second sentence is that they both relate to the enumerated provisions, both relate to subsection B, and the second sentence's requirement that although different provisions both must be included in the same ordinance: "The ordinance may further provide . . ."

What the ordinance may provide (as applicable to law enforcement) is that
a person convicted of violating any of the following provisions shall . . . be liable to the locality . . . for restitution of reasonable expenses incurred by the locality when issuing any related arrest warrant or summons
So, the plain language of the second sentence has it allowing restitution for issuing any warrants or summons related to the conviction (assuming the conviction is one in the enumerated section). When subsection B limits restitution to arrests, please remember that a summons is an arrest and release by the officer. So, the statute as it stands generally accomplishes what Judge né Delegate Iaquinto intended, except it's not as clear as his version and it doesn't have the limitations he proposed. 


A brief moment on "incident." I tried to leave it alone. I really did. I generally think the AG opinion was correct as it stood in relation to the statute at that time. I also know that in writing things down it's almost impossible to get everything right (I might have made a couple errors in the 16 years this blawg has been going - maybe even three if you look hard enough). However, this one just got under my skin.

An incident is a happening or occurrence. A happening or occurrence is an incident. A=B. B=A. It's about the broadest term a statute could use to indicate activity. Claiming the word "incident denotes a subordinate occurrence" is incorrect without further modification added to "incident." For instance, if the statute said "accident or incident thereof" or "incidents or the accident they proceed from", or "accident and its incidents" we would all know that the incidents referred to were subsets of the set of the accident. This is not how the the statute is written. "Accident or incident" denotes two different things that are not subsets of the other and are not the same. We are not writing in the old legal language of England where the use of doublets was necessary because of the possibility that the reader might not understand either Anglo-Saxon or French.

In fact, we are told over and over again by our appellate courts that each and every word the General Assembly writes has a meaning. 
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.

~~~ fini ~~~~

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