Judge delays ruling on Express Lanes unpaid toll case until March

FAIRFAX, Va. — A Fairfax County Circuit Court judge heard three appeals on Thursday that could determine how much the operator of the 95 and 495 express lanes can charge drivers with E-ZPass problems.

Defendants Toni Cooley, Jim Diller and Stuart Holmes all appeared before Circuit Court Judge Dennis J. Smith to argue that toll lane operator Transurban  violated the U.S. Constitution by imposing excessive fines disproportionate to the violations of not paying a toll because of an E-ZPass problem.

The case challenges a traffic court ruling in October and also claims that Transurban violated Virginia law.

Smith delayed a decision in the case until a hearing on March 13.

A ruling against Transurban could set a precedent, allowing motorists to cite the case in future traffic court challenges.

Transurban originally took Diller to court for $24,000 and Cooley for more than $10,000. Transurban eventually lowered their request to $2,200 plus about $200 in court costs.

“I don’t mind paying Transurban the original toll. I have never objected to that. I have never had a problem paying some sort of reasonable penalty. But to pay a $2,400 fine for a $1.40 in tolls equals about 171,400-percentage interest. That is ridiculous,” says Diller.

Holmes points out that the express lanes do not have toll booths, so regular commuters could accrue several unpaid toll trips before E-ZPass or Transurban alerts motorists to a problem.

“If they want to have a toll road that gives you no indication that your E-ZPass is not working, then hit you with some big fines and fees after the fact, it’s ridiculous. At least on the Dulles Toll Road you have an indicator light at the toll booth that warns you about a problem,” says Holmes.

Transurban lawyer Caleb Kershner did not respond to the argument. But the agency issued a statement afterwards.

“Although less than 0.1 percent of all 495 Express Lane trips end up in court, we continue to do all we can to minimize any traveler going to court, including the first-time forgiveness program which has helped nearly 800 travelers,” writes spokesman Mike McGurk.

“Additionally, we do not profit from the administrative fees or penalties. As defined by Virginia law, any and all revenue collected from toll fees and penalties are cost recovery only to fund the enforcement program and we currently we do not even recover costs,” he adds.

All three defendants also argued that Transurban missed the Virginia statute of limitations to file a case against them in court.

Attorney Marla Diaz argued that because the summons indicate these unpaid tolls are a criminal matter with civil penalties, Virginia law requires that Transurban sue the driver within one year of the last unpaid toll. Otherwise the suits are considered untimely under Virginia law, and should be thrown out.

Kershner argues that the statute of limitations is two years, not one year, and unpaid tolls are civil matters, despite what the statute and summons may read.

Judge Smith ordered both attorneys to file a legal brief with the court before mid-February, with a ruling expected in March.

“We appreciate the fact that Judge Smith has given us the opportunity to brief the important issues in this case and we remain hopeful that we will prevail,” says Diaz.

The three defendants’ lawsuits have been rolled into one case.

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