Defense attorney unveils strategy to challenge huge E-ZPass Express Lane fines

The E-ZPass 95 Express Lanes in Virginia -- with tolls in effect – started on Monday. Millions of commuters will use these toll lanes along with the 495 Express Lanes. While they will save time in traffic, as you have seen in our FOX 5 investigation, some drivers will face thousands of dollars in fines for accidentally missing a few dollars in tolls on their E-ZPass account.

Since we first exposed these massive fines, Transurban has capped the fines and fees at just under $2,500. But many drivers have contacted me because they can't afford even that amount, and they feel that they should not have to pay for a technological mistake.

The state of Virginia lets Transurban, the company that manages the Express Lanes, prosecute and sue people in civil court for missed tolls.

I analyzed Fairfax County Court records and found that Transurban filed a jaw-dropping 26,000 lawsuits against drivers in 2014 alone. With 26,000 cases for just one year of 495 Express Lanes, the cases could double with the opening of the 95 Express Lanes.

But Virginia defense lawyer David Bernhard has come up with a unique defense strategy that may let all these drivers avoid paying the massive fines. He unveils that legal strategy exclusively on FOX 5.

Luis Viera used to take the Express Lanes from Clinton, Md., to his job in Tysons Corner. His E-ZPass was automatically deducting tolls from his credit card.

Then one day, Luis was slapped with a summons to Fairfax County Court. Transurban was suing him for $4,500 in fees and fines for exactly $7.70 in missed tolls.

Luis went to court the first time without a lawyer.

"I was nervous," Luis said. "I didn't get any sleep. I wasn't eating. It was a bad week leading up to it."

In the courtroom, a woman who said she represented Transurban approached Luis before the judge entered. She said the company would settle for $2,488.

"How does $10 turn into $2,000? She said there was nothing else they could do. And I was either going to go to trial -- and have to pay the whole thing -- or settle right there for $2,000. And I chose to take my chance," recalled Luis.

While in court that first time, Luis saw lawyer David Bernhard defending other E-ZPass drivers. Luis hired David on the spot for a flat rate of $800.

David has come up with a new legal strategy for these Transurban cases. He will put the strategy to the test before a Fairfax Court judge in April. We won't know until then if it will work, but he is sharing his six-point plan with FOX 5 viewers so you can try it yourself.

If you, like Luis, get hit with a summons, that is your red flag for step one: hire a lawyer to go to court on your behalf.

David explains that "Transurban has to prove you are the registered owner or the driver of this vehicle. And they really only have one effective way of proving that … by luring you to court and asking you questions: Are you the driver? Are you the registered owner?"

But what if you can't afford a lawyer?

Step two: Don't admit to being the driver or car owner.

When Transurban's rep approaches you in the courtroom, don't talk.

When the judge enters, they will call your case. You can answer your name only.

Next, Transurban will call you as a witness. This is step three. David says to take the Fifth.

"They will ask if you are the registered owner or the driver, and you should take the Fifth Amendment. And you should refuse to answer that on the ground that you could be potentially prosecuted for an infraction," explained the lawyer.

David expects Transurban will bring DMV records for Virginia drivers. So step four: you (or your lawyer) should object.

"You should say that's hearsay," recommends David. "That's a declaration by somebody made out of court that this person is not here -- in this case, the DMV."

If the judge doesn't throw out the case at that point, David has uncovered some serious questions about the validity of all the summonses.

If the trial continues, you or your lawyer should point to step five -- ask if the signature on your summons was actually signed by a real person.

David pointed me to two of his clients' summonses.

"Look at the signatures," he said. "They appear to be not only identical, but in the exact same place and they appear to be some sort of printed type signature."

I agreed they were exactly alike.

"Under the statute, these have to be signed by a person," said the lawyer.

Now step six: check the date of the first missed toll to see if it is past the statute of limitations.

David pointed to another of his client's summons: "See the offense date is Jan. 23, 2013 at 7:55 a.m. But this summons was not issued until Feb. 25, 2014 -- more than a year after the original offense."

Some drivers are so mad at Transurban that they have given up their E-ZPass accounts. But most say traffic is just so bad, they have to keep using the Express Lanes. I stood at an overpass on the Beltway Express Lanes at 3 p.m. on a weekday. The regular lanes were moving at about 20 mph. The E-ZPass lanes were almost empty.

In full disclosure, the six-point plan is one lawyer's strategy. If you are facing Transurban in court, you should also do your own research or consult a lawyer.

David is also trying to get the judge to throw out the whole Express Lane law for being unconstitutional.

For example, the Eighth Amendment prohibits excess fines.

The lawyer pointed to another of his client's summons.

"The toll was $2.40. The fines were $1,172 … that amount to ... 48,800 percent interest."

That is something Luis knows all too well.

"I've stopped using them completely. I refuse to get on it," Luis said. "Anybody who tells me the new ones opening up to Woodbridge, I tell them, 'The five minutes you're saving isn't worth the $1,000 you're going to face.'"

Transurban's spokeswoman, Pierce Coffee, sent us this statement:

"Although less than 0.1% of all 495 Express Lane trips end up in court, we continue to do all we can to minimize any traveler going to court, this is why we have the First-Time Forgiveness program which has helped nearly 800 travelers. Additionally, we do not profit from the fines or penalties. As defined by Virginia law, any and all revenue collected from toll fines and penalties are cost recovery only to fund the enforcement program and we currently we do not even recover costs. It's our continued goal to work with our customers by providing regular communications to avoid any confusion regarding the E-ZPass management issues and ensure we continue to provide a safe, faster and more predictable driving experience for travelers in Northern Virginia."

Finally, I asked Transurban repeatedly to tell us who is signing the court summonses, who is representing them in court, and why the summonses are sent over a year later. The company would not respond to any of those questions.

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