DUI News

New DUI Laws Passed By Legislature

Jim Fisher of the Clarksburg Exponent-Telegram wrote an article on a recent West Virginia Supreme Court opinion that addresses no contest pleas and drivers license issues in DUI cases. We have written on this topic a number of times over the past two years as it has been an ongoing issue in the defense of DUI cases in West Virginia.

This recent opinion in the case of Baker v. Bolyard reinstates automatic suspension of a driver’s license when the driver pleads no contest to a DUI charge in criminal court proceedings. This issue has gone back and forth ever since the case of Stump v. Johnson was decided by our Supreme Court in July of 2005. Until 2005, a no contest plea had never resulted in automatic suspension of a driver’s license, only a guilty plea had that effect. Since then, legislative, judicial, and administrative action by our state’s government has created a seesaw of opinions and rules on this one issue. Just imagine if our government would put such effort into issues like unemployment, economic growth, or education.

Fisher’s article, which can be viewed on the Clarksburg Exponent-Telegram website (Join for free, then search news archive for 11/13/07 and DUI), included commentary from several people, one of which was state senator Mike Oliverio of Morgantown. Oliverio’s quote at the end of the article perfectly sums up what can only be termed one of two things - ignorance of the law, or a political desire to ignore the law when it comes to DUI offenses.

Todd La Neve was referenced as saying that in DUI cases, if a no contest plea is entered in court by a driver, that plea can be used in the later DMV case, which is a civil case, to the driver’s detriment. In every other criminal proceeding, a no contest plea cannot be used this way - no contest pleas can’t be used against the person. La Neve called for consistent application of the no contest plea and for the elimination of a special exception in DUI cases.

Oliverio responded, "In every case where you plead no contest in a criminal setting, when you go into the administrative or civil setting, you still have the constitutional right to defend yourself [editorial note - this means the no contest plea doesn’t get used against you]. But guess what? A driver’s license is not a state constitutional right, it’s a privilege."

Oliverio’s position is astoundingly uninformed. Of course, he may be smarter than we think he is and may simply be trying to play to the voters.

A drivers license is considered a property interest as defined by the state constitution. This issue was addressed most recently in the West Virginia case of Petry v. Stump, 219 W. Va. 197, 632 S.E.2d 353 (2006). The Supreme Court said, "We have previously recognized the important property interest inherent in driver's licenses when we stated that "[t]here is not much question that in our mobile society the suspension of a driver's license . . . constitutes a serious deprivation. Jordan v. Roberts, 161 W. Va. 750, 756, 246 S.E.2d 259, 262 (1978). Thus, we concluded that a driver's license is a property interest entitled to protection under our Due Process Clause. Id., 161 W. Va. at 753, 246 S.E.2d at 261 (citations omitted); see also Syl. pt. 1, Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995) ("A driver's license is a property interest and such interest is entitled to protection under the Due Process Clause of the West Virginia Constitution.")."

Well, Mr. Oliverio, how does your flippant remark fit into this analysis? If lawmakers were all like Oliverio and inclined to ignore long established legal standards just because the matter at issue was not a popular position, where would our state be? Or our country? Be thankful that there is a line of defense available for you, the citizen, to ensure your rights are protected every step of the way from governmental intrusion.

For more information about this issue, feel free to contact La Neve Law Offices by calling us, toll-free, at 966-MY-WV-DUI (866-699-8384).

It seems that even law enforcement officials don’t place any credence on the field sobriety tests used to investigate suspected drunk drivers. The Columbiana County, OH, sheriff refused to perform any of the tests when Ohio State Patrol officers asked him to submit.

According to an article posted on www.vindy.com, a website of the Youngstown (OH) Vindicator, the sheriff of was arrested late this week for driving while intoxicated. Columbiana County is adjacent to Hancock County, WV.

The following article recently appeared in the opinion section of the Kansas City (MO) Star. It is written by Sandy Rice, an area resident who is a CPA that has also worked with a hospital substance abuse unit. Her article hits very close to home as the West Virginia DMV also requires "voluntary" participation in counseling programs that can cost upwards of thousands of dollars for those who wish to get their driver’s license reinstated.

These people who received DUI citations have paid for their offenses as stipulated by the court system. Many times they are incarcerated. So you say: "And they should be. Where is the problem?"

Here is an interesting article on games the police play.  If this doesn't inspire "confidence" in how many law enforcement agencies view our personal rights, we're not sure what will (read with heavy sarcasm).

LOS ANGELES - Sheriff's deputies have been competing in organized contests to see who could make the most arrests, who could impound the most cars and who could question the most gang members.

The contests were meant to boost morale and motivate deputies, but some observers are crying foul, the Los Angeles Times reported Thursday.

One of the competitions, outlined in an internal Los Angeles County Sheriff's Department e-mail, was "Operation Any Booking." The object of the contest was to see who could arrest the most people in a 24-hour period.

"It's just a friendly competition to have a little fun out here," said Lt. James Tatreau, who helped organize the events. "It's a morale booster."

Tatreau said that when he joined a station in Lakewood, he noticed some patrol deputies made 15 to 20 arrests a month, while others made seven arrests in an entire year.

The prize for winning was "bragging rights," Tatreau said.

Several police observers were not impressed.

Hubert Williams, president of the Washington, D.C.-based Police Foundation, said the competitions were "highly problematic and inappropriate."

"The arrest is one of the most potent tools in the possession of law enforcement and should be used with great thought," Williams said. "It's not a competition or a game."

Los Angeles County Public Defender Michael P. Judge, wondered if the games could prompt deputies to make illegitimate arrests to boost numbers.

"Certainly, it calls into question whether there was a legitimate reason to book any of the people who were booked during the time of the competition," Judge said.

According to a Times review of records, Operation Any Booking did not result in an increase in arrests on the day of the contest.

But the impound competition may have increased the number of vehicles seized, with records showing a spike in vehicle seizures the day of the contest.

Sheriff Lee Baca said the competitions were a well-meaning but poorly conceived idea that promoted "the wrong values."

"We're not into numbers, we're into quality," Baca said. "I don't think it will occur again."

Some time back, we reported on a change in the admissibility of evidence in DMV hearings in DUI license suspension cases.  The case, Crouch v. DMV, was overbroadly interpreted by the DMV legal department.  Hearing examiners were required to apply the case as the DMV attorneys had interpreted it - any document in the DMV file is considered admitted without any need for the officer to prove the admissibility of the document and the officer was not required to prove his case by a preponderance of the evidence, but rather the driver was given the burden of "unproving" the officer's case.

On July 24, 2007, Clay County Circuit Court Judge Jack Alsop told the DMV that's not the way things are to be done in his jurisdiction.  Judge Alsop's order states that ". . . the Commissioner is clearly wrong inasmuch as the Commissioner misapplies and misinterprets Crouch v. West Virginia Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006).  Crouch does not authorize the shifting of the burden of proof from the Commissioner to the Petitioner to present a meritorious defense."

This opinion is the first to really challenge the DMV strong arm tactics and send the message that if the DMV is going to suspend a driver's license, it had better follow proper legal procedure.  Now, the only remaining test is whether or not DMV legal will comply with this standard outside of Judge Alsop's jurisdiction.  The simple fact is that there are some judges in this state who are of a similar mindset to that of the DMV legal department and have sanctioned the DMV deprivation of rights.  These judges have further eroded the fair hearing process at the DMV and sent a message that government corner-cutting is acceptable when it comes to DUI license revocation hearings.

A big thank you goes out to Judge Alsop for not rolling over for the DMV and the deprivation of rights agenda it is pursuing.  While he does not pave the way for true violators to work around the system, he does make it clear that this is still America and there is a constitutional process we must follow before rights of citizens may be affected.  Perhaps the DMV should actually pay attention to this opinion not just in Judge Alsop's circuit, but everywhere.

If you are traveling in Morgantown for the WVU football games, for business, or for other reasons, be sure to look for our billboard at a new location on the Mileground across from John Howard Motors.

And remember, we are everywhere in West Virginia.

The coming weekend is an important one for police departments around West Virginia as a month long DUI crackdown continues.  The Labor Day holiday invites plenty of opportunities for a last hurrah of summer with many celebrations involving alcoholic beverages.  This weekend also starts the college football season, so fan festivities will also be drawing the attention of police.  If you plan to drink this weekend, please be responsible and consider the safety of yourself and others.

Departments all over the state will be conducting DUI checkpoints beginning today and running through the weekend.  Remember that very sttrict constitutional guidelines apply to how police conduct checkpoints and it is not uncommon to find that some standards have been overlooked or ignored.  If you find yourself under arrest following travel through a checkpoint, make sure your rights are protected by contacting experienced DUI defense counsel and learning more about your options.

If you have questions about DUI checkpoints, feel free to contact us, toll-free, at 866-MY-WV-DUI (866-699-8384).

The Parkersburg news station, WTAP, also responding to the I-68 fatal DUI wreck, did a piece on the status of DUI laws in West Virginia.  Click here to read the account.

Like the newspaper stories yesterday, this piece ignores the fact that the driver in the fatal crash on I-68 was a Pennsylvania resident with a Pennsylvania license.  Instead of focusing purely on whether or not West Virginia's standards are tough enough, might we not also want to place some focus on the way other states handle their licensing?  After all, if a driver licensed in another state comes to West Virginia and drives under the influence, how in any logical way can that be the result of a shortcoming in West Virginia's DUI laws?

Readers need to think very critically when considering the news stories that spring up around tragedies.  Normally, those stories are borne of emotion and response to public outcry and lack much of the objectiveness that should be a part of good reporting.  And another point to consider in all of this latest rash of news - why doesn't anyone putting these stories together want to hear a reasoned perspective from a DUI defense attorney?

Last Sunday’s fatal crash on I-68 near Morgantown was a horrific reminder of the effects one person behind the wheel of a vehicle can have. Whether or not alcohol is involved, our highways remain one of the most dangerous places for us to be. Adding alcohol into the mix, to the level at which a driver is actually impaired or actually over the legal limit of .08, doesn’t change the outcome itself, but may well increase the chances that a bad outcome will be the final result. If we want to avoid these sorts of tragedies, we as a society need to do a better job of educating those of us who get behind the wheel and take the roadways.

Ahh, DMV legal.  What can be said about them that hasn't already been said?  Not much, really.  The latest trick in their unending pursuit to deprive as many people of their rights as possible would be funny if it weren't so over the top.

Historically, in order for an officer to be able to prevail in a West Virginia DUI license suspension hearing, that officer had to either have directly observed illegal driver conduct that led to the stop and arrest, or have witnesses present who had seen such conduct.  If the officer tried to offer evidence observed by another person, that evidence was rejected as hearsay, one of the foundations of our legal system.  No longer.

The DMV legal department has now determined - without any statutory or administrative legal authority mind you - that an officer can present his entire case based on hearsay and the driver can't object.  So, officer A witnesses alleged legal violations, stops the driver and arrests him as officer B arrives on scene to help wrap things up.  Now, officer B can come to the DMV hearing and testify to everything witnessed and said by officer A without officer A ever making an appearance at the hearing and the driver will lose his or her license if the facts hold up otherwise.

This twist, unsupported by any authority other than the DMV attorneys' thought that this would be a good idea, has taken us one step closer to automatic suspensions and a complete denial of the right to a fair hearing.

Stay tuned to see how your West Virginia DMV puts another nail in your coffin, all while it's attorneys keep a straight face as they say the hearing process is fair.

As if it wasn’t enough that DUI license suspension hearings before the West Virginia DMV have already been changed so much that a driver is presumed guilty before he or she ever walked through the door for a DMV hearing, the manner in which a hearing is requested has now been changed.

DMV now requires drivers who want a hearing on their DUI license revocation to fill out a new form which asks for information on every defense a driver intends to present. Click here to see the new form. At this rate, it won’t be long before the shining stars at DMV legal try to require every driver to present his or her argument, summaries of witness testimony, and other evidence before hearings so they can conduct a review to determine what, if anything, drivers are allowed to offer in their defense. Judging by the past performance of DMV legal and their desire to avoid at all costs having to work for a suspension of a driver’s license, this idea may just catch on.

Of course, this development, and those that have gone before, make it obvious that the entire "fair hearing" process offered by the West Virginia DMV is a complete sham - DMV has done more to take away rights from drivers and distort legal standards than Joseph Stalin did with the Russians of old. A few notable examples:

• Officers do not have to prove their evidence meets normal standards of legal admissibility - the West Virginia Rules of Evidence don’t apply to the police, but they do apply to the driver trying to offer evidence in his own behalf


• The 4^th Amendment right to be free from unreasonable search and seizure doesn’t apply to DMV proceedings, so even if the officer didn’t have a legal basis to stop a driver, DMV doesn’t care


• Drivers are presumed to be guilty of driving under the influence before the hearing even starts - the burden has been shifted from the officer - who used to have to prove the driver’s guilt - to the driver, who now has to prove his innocence

Don’t like these changes? Contact your state senator or representative and tell them that the ends don’t justify the means. None of us wants to see people make bad choices when it comes to alcohol use, but making DUI a witch hunt in which we allow the government to eliminate all of our legal rights just to make sure it gets a conviction isn’t how we should be going about the process. If the government can’t gain a conviction or a license suspension inside the lines of the law, maybe a conviction or suspension isn’t the right outcome. Now how’s that for a thought?

Yet again, we see another incident in which a horse rider is charged with DUI, this time after a Kentucky State Trooper runs over him. It makes one wonder who was in the better position to avoid a wreck and why the trooper wasn’t charged with failure to maintain control or failure to maintain a proper lookout. Perhaps it was because he had the badge, gun, and ticket book.

Associated Press

April 14, 2007

Columbia, Ky. – A horse was euthanized and its rider charged with being drunk on horseback after a Kentucky state trooper struck the horse with his cruiser, state police said.

Trooper James Richard was driving in a rainstorm about five miles east of Columbia in south-central Kentucky when he hit the horse and rider late Friday on an unlighted, rural highway, state police said.

The horse was critically injured and euthanized at the scene, state police said. Jonathan Bryant was charged with DUI-non-motorized vehicle after being treated and released for minor injuries. He was being held Saturday at the Adair County Jail.

Richard's car sustained severe damage and Richard was treated for minor injuries. The wreck remains under investigation.

The following article about DUI sentencing modifications appeared in today’s Charleston Daily Mail. The bill reference in the article failed to make it out of committee during the recent regular term of the legislature, but is one that is likely to be raised again next year.

While a number of parts of the bill seem problematic, one point stands above the rest - someone in the legislature has finally decided to notice that treatment is a better option than the threat of more punishment. Predictably, MADD, an organization deep in the pockets of the legislative and criminal justice systems, has taken its same, tired position - more penalties, more enforcement. MADD advised it is working on further legislative changes to increase DUI penalties, and it will not doubt be throwing lots of funding into its efforts. Hopefully, common sense will prevail and measures aimed at prevention and rehabilitation will rule the day.

THIRD OFFENSE DUI PENALTIES WOULD BE EASED UNDER RECOMMENDATIONS

Justin Anderson
Daily Mail staff
Friday April 13, 2007

State officials have recommended easing third-offense drunken driving penalties as a way to address overcrowding problems in the state's correctional system.

But one lawmaker who tried unsuccessfully to make that change this year expects it'll be a tough sell, especially when members of a powerful lobbying group --MADD -- say they wouldn't support anything but harsher penalties for people who drive drunk.

Sen. Dan Foster, D-Kanawha, introduced a bill during the recent legislative session that would have totally revamped the state's DUI law.

The bill would have put people convicted of third-offense DUI in jail instead of prison, required them to do extensive community service and participate in long-term inpatient and outpatient alcohol counseling.

In the end, the bill was considered incomplete, Foster said, so it languished in the Senate Judiciary Committee.

Foster said he's going to try to get a legislative interim committee to study the issue again for a possible bill next year. But given the politically touchy nature of DUI laws, Foster said any proposed bill would be a delicate balancing act.

"Dropping penalties, it's not clear that it's going to help," Foster said. "Nor is it clear that raising them in certain situations is going to help. What we're hoping to do is look at all of this and have a comprehensive approach."

A report on prison overcrowding compiled by the state Department of Military Affairs and Public Safety for lawmakers last year said putting repeat DUI offenders in prison with violent criminals isn't the kind of rehabilitation they need.

Changing the sentencing laws for third-offense drunken driving would remove 200 or more inmates from the prisons, the report said, and enable the lawbreakers to undergo intensive alcohol counseling. The report suggested up to three years in jail for the offense and six months of counseling rather than a more lengthy prison stay.

Foster's bill would have imposed a mandatory 30 days in jail followed by 96 hours of community service and a fine of $750.

The proposals are, in part, an attempt to deal with the state's escalating inmate population and a huge backup of people in the regional jails who are waiting for a bed in a correctional facility.

Prison officials are reluctant to build a new prison to compensate for the growth.

Donna Hawkins, executive director for the state chapter of Mothers Against Drunk Driving, said the organization is aware of the problem of inmate overcrowding, but can't get behind easing the penalties for repeat DUI offenders.

"We realize that there is the overcrowding, but DUI is a violent crime and needs to be recognized as such," Hawkins said.

At the bare minimum, MADD wants to see the current third-offense DUI sentence stay as it is -- a felony punishable by at least a year in prison.

"That's not to say that it couldn't be stronger," Hawkins said.

While the Legislature is considering the issue of updating DUI laws, Hawkins said her group has its own task force working on a bill they want to pass on to lawmakers.

County commissioners from around the state, along with members of other advocacy groups, officials with the state Prosecuting Attorneys Institute and various law enforcement agencies also will serve on the task force, Hawkins said.

"We're going to be taking a look at the whole penalty section," Hawkins said.

Foster's proposed bill also would have required anyone convicted of third-offense DUI to install a special devices on his or her vehicle's ignition that register a person's blood alcohol content and prevents the car from starting if the driver is drunk.

Any future legislation might include an option for first-time offenders also to install the devices rather than have their licenses revoked, Foster said. Yanking driver's licenses is often a meaningless action, he said.

"When you revoke licenses, particularly for the first offense, a lot of people just drive," Foster said.

New Mexico state officials implemented an ignition interlock system that has since cut DUI-related deaths by 15 percent, Foster said.

Foster said both MADD and the state Division of Motor Vehicles seem to be behind the interlock option.

Less than a week ago, police in Redwood City, California, exemplified the problems associated with ignorance of diabetes, a disease with an ever-increasing presence in the United States in both children and adults. Diabetes of either the Type 1 (formerly known as juvenile diabetes) or Type II (formerly known as adult-onset diabetes) variety can lead to conditions that, to the uninformed, mimic alcohol or drug intoxication. Low blood sugar events can cause a diabetic to lose awareness of everything going on around him or her, and can cause the diabetic to appear under the influence, with slurred speech, unsteadiness, and confusion, being common signs.

We reported on a story from Chicago, Illinois last October in which a driver, suffering from a low blood sugar episode, was stopped by police and, in the ensuing confusion over his condition, was beaten to death by the police. The recent California issue involving Doug Burns, the reigning natural Mr. Universe, who is also a Type I diabetic, once again puts dangerous police assumptions into the spotlight.

Mr. Burns has been charged with assault on police officers because they alleged that he attacked them during the confrontation, none of which Mr. Burns recalls. It is not at all uncommon for diabetics suffering through a low blood sugar event to have absolutely no awareness of what is going on around them and to have no recall of the events afterwards. Further, the diabetic’s actions are normally not something for which they can be held accountable as they often have no awareness of what they may be doing during a low. While some have criticized Mr. Burns for not having supplies readily on hand to deal with his low episode, it is important to note that lows can arise for any number of reasons in even well controlled diabetics and it can be nearly impossible to tell when a low is going to occur. Frequently, lows can hit so quickly that there is little time available for a diabetic to take action for himself or herself and he or she is at the mercy of those around at the time.

Mr. Burns’ story is available through numerous sources on the Internet, but we have included here the article written for Diabetes Health magazine, which appeared on April 3, 2007.

Diabetes Health magazine recently had the pleasure of interviewing Doug Burns for a lengthy feature. He is a well-spoken and forthcoming man with a good sense of humor and an easy-going manner. Altogether, he comes across as a very nice person. On Sunday, however, Doug Burns was severely beaten by police during an episode of low blood sugar that occurred at a movie theater in Redwood City, California.

Doug states that he remembers seeing his friend in the theater and then feeling that he was getting low. He hurried to a snack counter to find food but apparently was intercepted by a security guard who thought he was intoxicated, even though he did not smell of liquor and was wearing a medic alert bracelet. The next thing he remembers is waking up while being given glucose by paramedics. He was surrounded by seven armed policemen who had severely clubbed him in the head and body, maced him, and handcuffed him, in spite of his medic alert cards and jewelry. The police had even brought in dogs.

Doug believes that had he been less well dressed or from a different ethnic background, the police might have shot and perhaps killed him. He comments that one of the worst things the police did was to call his young daughter and tell her what was happening to her father. The incident serves to underscore the need for better education of police officers and security personnel about how to distinguish hypoglycemia from intoxication.

Make sure that you and your family or friends stay clear of the boards at your favorite hockey arena between periods - you never know what your Zamboni driver has been doing while he watches the game!

N.J. JUDGE: NO SUCH THING AS ZAMBONI DUI
NEWARK, N.J. (AP) -- It's not drunken driving in New Jersey if it involves a Zamboni.

A judge ruled the four-ton ice rink-grooming machines aren't motor vehicles because they aren't useable on highways and can't carry passengers.

Zamboni operator John Peragallo had been charged with drunken driving in 2005 after a fellow employee at the Mennen Sports Arena in Morristown told police the machine was speeding and nearly crashed into the boards.

Police said Peragallo's blood alcohol level was 0.12 percent. A level of 0.08 is considered legally drunk in New Jersey.

Peragallo appealed, and Superior Court Judge Joseph Falcone on Monday overturned his license revocation and penalties.

"It's a vindication for my client," Peragallo attorney James Porfido said after the hearing. "It's the right decision."

Morris County Assistant Prosecutor Joseph D'Onofrio said no decision had been made on whether to appeal.

Peragallo, 64, testified at his trial that he did drink beer and vodka, but not until after he had groomed the ice. However, he told police he had a shot of Sambuca with his breakfast coffee and two Valium-pills before work.

Some things you just can't make up. This is a pretty good example. While this would not likely result in a DUI in West Virginia, caselaw actually leaves the door open. We're confident that the DMV will look at this angle on DUI license suspensions next!

ALA. WOMAN ON HORSEBACK CHARGED WITH DUI
THE ASSOCIATED PRESS

SYLVANIA, Ala. -- A woman who went for a horseback ride through town at midnight and allegedly used the horse to ram a police car was charged with driving under the influence and drug offenses, police said Tuesday.

"Cars were passing by having to avoid it, and almost hitting the horse," said Police Chief Brad Gregg.

He said DUI charges can apply even when the vehicle has four legs instead of wheels.

Police in the northeast Alabama town received a call around midnight Saturday about someone riding a horse on a city street, Gregg said.

Officer John Seals found Melissa Byrum York, 40, of Henagar on horseback on a nearby road and attempted to stop her. Seals asked the woman repeatedly to get off the horse, but she kept trying to kick the animal to make it run, the chief said.

"She wouldn't stop. She kept riding the horse and going on," Gregg said.

After ramming the police car with the horse and riding away, the woman tried to jump off but caught her foot in a stirrup, Gregg said. The officer took the woman into custody and discovered that she had crystal methamphetamine, a small amount of marijuana, pills and a small pipe, the chief said.

Gregg said the horse, which belonged to York, "wasn't in the best of health, but it's still alive."

York was released from the DeKalb County Jail on $4,000 bond and was being transferred to the jail in Jackson County, where authorities had a warrant for her arrest on unrelated charges, Gregg said.

Jackson County officials said Tuesday that York had yet to be booked, and there were no records indicating whether she had a lawyer.

The city of Huntington will be conducting two DUI checkpoints on Thursday night in a highly publicized effort that combines the resources of seven area law enforcement agencies.

According to the Herald Dispatch, the more visible checkpoint will run from 4 p.m. to 10 p.m. Thursday in the 2000 block of 3rd Avenue. This checkpoint will be manned by officers from Huntington, Barboursville, Milton, Ceredo and Kenova, along with additional participation by the Marshall University Police Department, Cabell County Sheriff’s Department and the West Virginia State Police.

This checkpoint will also have camera crews on scene to produce public service announcements regarding traffic safety.

A more low key checkpoint will be set up at 11th Street and 8th Avenue on Thursday. It will begin at 7 p.m. and run through 11 p.m.

As with any checkpoint, strict guidelines apply to the conduct of the checks and, as always, participation is completely voluntary. In other words, you do not have to drive through a checkpoint if you are out driving in the city. State law requires that alternate routes be made available for those who do not want to drive through the checkpoint for any reason. Regrettably, most checkpoints are staffed by pursuit vehicles that will, many times, follow drivers who avoid the checkpoint and make traffic stops for occurrences that would rarely ever result in a traffic stop otherwise.

Be sure you know your rights and if you have questions about checkpoints, give us a call or send us an email. We can be reached, toll-free, at 866-MY-WV-DUI (866-699-8384).

The article that appears below is from today’s Wheeling Intelligencer. It drives home a couple of points about DUI grants that the public needs to know. The availability of extra money makes any job easier. But when that job is essentially a seek and destroy mission, one has to wonder if the police are being truly fair and objective, or if they are using overbearing tactics. DUI grants, if not carefully administered, can result in the end justifying the means - we don’t want DUIs to occur, so when the police do what they think is needed in order to achieve the desired result - more DUI arrests - we don’t worry about how we got there, just that we got there. This is wrong and is an abuse of power that should not be tolerated.

Most troubling about the article from Moundsville is the police chief’s statement that "We give them a car and a radar gun and say go at it." That’s the plan? Just "go at it?" How many of us would tolerate ourselves or our family members being jailed because the police chose to just "go at it?" Is such an indiscriminate use of questionable technology (radar speed detection) really the best use of DUI grant funds, or is there a better way to address the dangers of driving while under the influence? How about education? How about taking steps to avoid the problem before it occurs so that the officers don’t have to just "go at it?"

This article typifies the problems with DUI enforcement - we choose to punish instead of ever taking a realistic step to actually try and prevent it in the first place. After all, isn’t the job of the police department to look out for us and help us avoid trouble? If this is as troubling to you as it is to us, tell someone - your mayor, your town councilman, your state representative - that we need to do more to be proactive about DUI enforcement. Perhaps we need to get the government to start thinking in terms of DUI prevention instead.

And before you decide we are posting this article simply because we choose to defend those accused of DUI offenses, remember that we make get hired to represent those arrested for DUI, not those who avoided an arrest in the first place because our government chose to educate instead of enforce.

Moundsville Police Net DUI Assistance

By ART LIMANN

MOUNDSVILLE — Motorists in Moundsville have been stopped by police in increasing numbers recently because of a $6,000 grant for DUI enforcement through the Sustained DUI Enforcement Project of the West Virginia Highway Safety Program.

According to Moundsville Police Chief James Kudlak, the funds can only be used for overtime pay for additional officers on road patrol looking for impaired drivers.

This gives us extra guys out there," Kudlak said. "They can do nothing but traffic. We give them a car and a radar gun and say go at it.

He emphasized the additional patrols are in addition to normal staffing. They are permitted to work at any time of any day.

However the grant money must be used by Monday, April 30.

An amusing Reuters article provides details on steps being taken to curb driving after drinking in New Mexico.  While we applaud efforts to make our roads safer, some campaigns may just belong where this one ended up!

SANTA FE, New Mexico (Reuters) - In a novel move to curb drunk driving, New Mexico is using talking urinals to remind drinkers to not get behind the wheel when drunk. The state transportation department said on Thursday it has put some 500 talking deodorizers in bar and restaurant restrooms in the state in recent days to remind drivers not to drink and drive.

"Hey big guy, having a few drinks? Then listen up!" a voice chirps in. "Think you had one too many? Then it's time to call a cab or call a sober friend for a ride home."Transportation department spokesman SU Mahesh said the motion-activated devices were part of an attempt to "think outside the box" to tackle drunk driving in the state."We have a big problem here in New Mexico. Hopefully this will be a humorous and also serious way to catch men before they go to their cars and say to them 'it's not worth it to drink and drive,'" Mahesh told Reuters.

Mahesh said the devices, which are manufactured by New York-based Healthquest Technologies Inc., have been used elsewhere in the United States, but never as part of a statewide campaign. If the project is successful he hopes bars and restaurants will continue to purchase the battery operated gadgets, which cost $21 each and last three months.

The West Virginia DMV has recently been taking some much needed heat for its ever increasing effort to eliminate the "fair" from the fair hearing process that is supposed to accompany administrative license suspensions in DUI cases.

At least one state legislator, after receiving complaints from a West Virginia resident, has approached Governor Manchin's office about the outrageous steps DMV has taken to continually erode the rights of drivers accused of DUI in West Virginia.  In prior years, those drivers were actually given a chance to present their defense in cases where a defense was available.  In many cases, drivers were able to win those hearings and save their driving rights.  By way of example, the attorneys of La Neve Law Offices were assisting clients in winning well over 65% of the cases that went to hearings, with those winning results exceeding 85% during some periods.  Cases were actually decided on their merits much of the time.  Not any more.

Now, the DMV legal department has misconstrued several opinions of the West Virginia Supreme Court of Appeals to start eliminating various rights that drivers used to enjoy, and to gradually shift the burden of proof from the officer to the driver.  While the law of West Virginia does not call for such a burden shift, the DMV has succeeded in achieving just such a result without actually saying that is what has happened.  In many cases, the losses flowing form this heavily biased hearing process are being appealed, and now many of those appeals are meeting with success.  One circuit court judge in West Virginia has gone so far as to say that he disagrees with the position taken by the DMV legal department on at least one recent supreme court case.

Now is the time to contact your own legislator and alert him or her to the unfair shift taking place in DMV administrative license hearings.  Those accused of DUI deserve the right to a fair hearing that allows for constituational due process - not a results-oriented "kangaroo court" that focuses on taking away driving privileges just because no one likes a DUI.

For more information on this issue, or to discuss it with us, call toll-free at (866)MY-WV-DUI (866-699-8384).

The article below appeared last week in the Salisbury, Maryland, newspaper, The Daily Times. Because of the controversy, and some not-so-subtle implications of under-the-table favoritism, the article caused quite a stir. As a result of the feedback being posted on the newspaper’s website regarding this article, it was pulled off the site just days after being posted. We have highlighted some of the interesting points of this story and have inserted some thoughts of our own for your consideration. Those comments appear in blue text.

The Daily Times - Salisbury, MD

Patrick Gavin - Staff Writer

OCEAN CITY -- Mothers Against Drunk Driving praised the Ocean City Police Department on Thursday for how officers handled the Oct. 29 traffic stop and non-arrest of Delaware State Rep. John C. Atkins.

MADD representatives were particularly quick to support decisions made by Pfc. Douglas A. Smith, OCPD's toughest DUI enforcement officer, who along with trainee Natalie R. Smolko, performed the stop.

OCPD came under fire when news broke that Smith and Smolko stopped Atkins, who was allegedly driving erratically and blew a .14 in his preliminary breath test, but decided against making a DUI arrest.

"We feel very confident that the officers followed the proper procedures and protocols," said Caroline Cash, executive director for the Chesapeake Region of MADD.

The decision to not arrest was made based on Atkins speaking clearly and not fumbling when retrieving his license and stepping out of his vehicle. The fact that he blew a .14 was irrelevant in Smith's decision not to arrest since such readings are not admissible in court, Ocean City Police Chief Bernadette DiPino said. (Officers are trained that preliminary breath test results are a final confirmation of their suspicion that a person may be impaired. While the numeric results are not admissible, in West Virginia an officer is permitted to state that the results were either over or under the legal limit. Further, many officers do nothing but the preliminary breath test prior to arresting a driver.)

After Atkins blew nearly double the .08 legal limit, officers did conclude that he was unfit to re-enter traffic. (This sounds like the officer’s opinion was that Atkins was affected by the alcohol he had consumed. In most states, even if one does not have a blood alcohol concentration over the legal limit, he may still be arrested for being under the influence. If Atkins was not under the influence, he should have been released and allowed to go on his way in whatever manner he saw fit.) He then contacted a friend, who drove him and his wife to their Millsboro home.

Atkins was arrested hours later by Millsboro police and charged with offensive touching -- a charge to which he pleaded guilty in December -- after a dispute with his wife.

Many in the community believed Atkins, who flashed his legislator ID to police during the stop, received preferential treatment in being let off with a warning.

After the meeting, Cash was clear she did not believe that to be the case.

"(Smith) followed the same procedures and protocol for this arrest as he would for any other," she said. "He did smell alcohol on his breath, but there was no hesitation or fumbling, no confusion as to what was being asked, no slurring, no delay. None of the clues were really there." (These clues are very often absent in cases we have been hired to defend, yet the officers in those cases did not hesitate to make arrests, even though many of the cases were later dismissed. If this is not preferential treatment, it might be difficult to find a more suitable example. MADD is, in our opinion, supporting a very questionable decision - one which is an example of the sort of favoritism that is not uncommon in these situations. A state legislator, who has probably been supportive of the MADD agenda, is above prosecution while those who are not people of influence are left to their own luck. This inconsistency, particularly in light of the fact that Atkins was almost double the legal limit, is blatant.)

Though the breath test result has been the sticking point in raising doubts about officers' handling of the incident, MADD Eastern Shore Victim Advocate David Elzey praised the proper use of the tool.

"He administered the (test) after he had decided not to make an arrest and he made the right call by not letting him continue driving," Elzey said. "He probably saved lives by not letting him drive home."

MADD representatives expressed absolute faith in Smith, who lost his mother-in-law to a drunken driver and who was himself struck by one in another incident.

"This is an officer with incredible experience and he decided not to go forward with the decision to make an arrest," Cash said.

"He's had a couple hundred DUI arrests in a few years," Elzey said. "Doug Smith has done so much. We have faith he knows what he's doing."

DiPino hopes the meeting with MADD will provide closure to the situation.

"(MADD representatives) were satisfied," she said. "Now it's been reviewed by our department, reviewed by the Police Commission and now reviewed by MADD." (What justification can any law enforcement agency provide for believing a private political action group like MADD would ever have the right to review a police decision? The fact that the OCPD was quick to get MADD involved in the spin control on this situation only causes more question. The fact that MADD publicly praises an officer for NOT making a DUI arrest of a legislator with a BAC arguably well over the legal limit does more than suggest that MADD has a personal interest in the treatment received by Atkins. MADD knows full well what is going in this situation, and its efforts to act like it does not are laughable. If the standards are to be evenly applied and system is to be fairly run, then let everyone, MADD-endorsed or not, face the same consequences and let the court system be the forum in which the true facts are brought to light. The innocent will be vindicated, but only when the system is fairly applied without favoritism.)

The new Statement of Arresting Officer that we have previously discussed is now in use around the state of West Virginia.  Just last week, West Virginia State Police detachments all over the state were provided with the new form for their use in charging and prosecuting DUI cases.

This form is designed by the DMV legal division to eliminate every hurdle an officer might otherwise face during a DMV hearing.  The new statement of arresting officer for DUI cases provides far more information than was previously submitted to DMV in DUI license hearing cases.  The DMV then takes nearly automatic notice that everything the arresting officer did in a DUI case is legitmate and proven.  This means that the DMV will now view the stop, investigation, arrest, breath tests at the station, and other actions as valid and lawfully performed.  The problem is that most times a police officer makes a DUI arrest, these presumptions have no validity.  The effect is that DMV has taken one more giant step toward the automatic elimination of driving privileges in DUI cases.

Fortunately, these ridiculous standards do not apply to the courts and the government still must prove its case - no free rides are given to the arresting officer outside the DMV.  You can see a copy of the new form on the DMV website by clicking here.

As always, feel free to contact us with any questions you may have about this change in procedures, or about any other DUI-related question.  Call, toll-free, 866-MY-WV-DUI (866-699-8384).

We've discussed here in the past the changes that the two staff attorneys in West Virginia's DMV Legal Division are making in an effort to increase the number of licenses that are suspended in DUI cases.  We believe, along with most members of the West Virginia defense bar who have discussed the changes, that these actions are the result of effective legal defenses being asserted on behalf of drivers and resulting in the preservation of rights that the law has traditionally given citizens.

The latest change is to modify the document known as the Statement of Arresting Officer.  This is a document that the arresting officer in a DUI case must file within 48 hours after arresting a driver for a DUI offense.  A recent West Virginia Supreme Court case, Crouch v. WVDMV, ruled that documents contained in the file of the commissioner of the DMV were automatically admissible into evidence at an administrative license suspension hearing in DUI cases.  The court opinion specifically addressed the statement of arresting officer as being admissible without the officer having to prove anything.

Because the statement of arresting officer has always been a rather vague document that did not have much bearing on the issue of license suspension, the DMV legal scholars have decided to make yet another change to the administrative process.  Now, instead of a bare bones type of document, the statement of arresting officer has been entirely changed and turned from a one page document into a five page essay.  The officer now needs only to complete this form, which details many aspects of the DUI investigation and arrest, and the DMV treats his or her case as proven.  The driver must now shoulder the burden of disproving his guilt, which guilt is already presumed by the DMV.  Under this new format, the whiz kids at DMV legal are making it even easier for the arresting officer to win the case by assuming everything the officer writes in the form is true, accurate, and reliable.  And if you believe that, we've got a gold-domed building in Charleston to sell you.

This move is a sign of weakness by those who live to suppress the rights of citizens to have a fair and meaningful process when rights and privileges are at stake of being denied.  While no one can legitimately argue that drunk driving prevention is important, we must balance that need against the wholesale elimination of personal preotections guaranteed by the US and West Virginia Constitutions.  This erosion of due process is exactly the sort of behavior that led to rebellion in this country over two hundred years ago.  But, since it is being done in the name of persecuting those accused of DUI offenses, many people turn their heads and say "it won't ever happen to me."  This type of erosion of due process is just the thing, though, that will lead to the loss of rights in other areas that are likely to hit closer to home for those who may never be accused of driving under the influence.  If we sit back and just let this happen, narrow-minded people with personal agendas will eventually rule the day.

For more information about this change, and how it affects your rights, feel free to call us, toll-free, at 8-MY-WV-DUI (866-699-8384).

La Neve Law Offices recently received information regarding yet another update to the NHTSA Standardized Field Sobriety Test (SFST) training manual. As was noted on this site in early 2006, a new manual was released with release number HS R2/06 (Like all government documents, NHTSA uses coding to identify its documents - in this case, "HS" stands for Highway Safety and "R2/06) means the updated manual was "Released in February of 2006). According to our source, NHTSA has stated that it has released another revision of the manual as R8/06.

What is not known by most is that the Transportation Safety Institute (TSI) of Oklahoma City, OK, dropped the ball by printing the incorrect version of the manual update that was forwarded to it by NHTSA for final print. In part, NHTSA could also be to blame for forwarding more than one version of the revised manual instead of just its final updated version. The confusion is certainly, to some extent, understandable.

However, this error was then compounded when the person responsible for printing the new manuals lost the final revision copy sent by NHTSA. Instead of saying the revisions had been lost, this TSI employee simply chose to cover the mistake by printing an earlier update that was sent prior to the final draft. NHTSA found out about the error after the R2/06 version had been printed and distributed and was initially going to recall all of the R2/06 manuals. However, NHTSA ultimately decided to avoid a big recall of the manuals since there were reportedly no substantial differences between the version that was printed and the version that should have been printed.

It now appears that NHTSA has decided to go ahead and release the final version which should have been released in February 2006 as the R2/06 version. The bottom line is that there is now a new manual out and it will supersede the R2/06 version. However, it should be noted that while this new manual has a new "release number," the curriculum is supposed to be virtually identical to what is in the R2/06 manual. However, this is what NHTSA is saying and has not yet been verified. Once we get a copy of the new manual, we will review it with our source and ensure that NHTSA has not used this update to make any material changes to the standards for administration and scoring of the standardized field sobriety test battery.

If you have any questions about this or other topics, feel free to contact us, toll-free, at 866-MY-WV-DUI (866-699-8384).

In the last few days we've added new information to WVDUI.com in our continuing effort to provide the most reliable information on DUI arrests and consequences in West Virginia.

We have added to our FAQ section on how a West Virginia DUI arrest will impact your life and are continuing to work on this page to provide answers to questions we are commonly asked.

We have also added a reference page for breath alcohol testing in other states in the country.  This page is designed to provide a quick reference as to the types of breath machines in use in other states and the basic testing protocols those states follow in DUI prosecutions.

As more information and content is added, we will post those additions here.  As always, if you have specific questions about your West Virginia DUI arrest, or if you are interested in learning more about how a DUI could affect you, feel free to contact us, toll-free, at (866) MY-WV-DUI (866-699-8384).

An interesting medical occurrence takes place when a person with Type I (formerly called juvenile diabetes) or Type II (formerly called adult onset diabetes) diabetic experiences abnormal highs or lows in blood glucose levels. The physical symptoms often mimic alcohol impairment. Chemical compounds exhaled through the breath of the diabetic smell like alcoholic beverages and can cause positive readings on breath alcohol machines even when no alcohol has been consumed.

This condition is not ordinarily present in diabetics who are experiencing normal blood glucose levels. But, even diabetics who are very careful with management of their glucose levels can have unexpected swings in those levels, leading to the type of condition described above.

The danger this presents is that the diabetic can lose control of normal responses and reflexes in almost the exact same way as someone who has consumed a sufficient amount of alcohol. An individual unfamiliar with diabetes can easily mistake a blood glucose problem, a genuine medical emergency, for drunkenness. In some cases, this ignorance of diabetes can be disastrous.

We found the following article on the Internet to be of significant interest. It points out the dangers in wrongly diagnosing a driver’s physical condition and also points out the extreme dangers of police officers jumping to conclusions based on initial impressions of a driver who they think must be drunk because they are ignorant of any other possible explanation.

Northwest Indiana Times - September 28, 2006

EAST CHICAGO | An ongoing internal investigation by East Chicago police into the attempted arrest of diabetic Jerome Clement so far shows no wrongdoing, according to the Police Department's legal adviser.

No officer involved in the altercation has been placed on administrative leave while the department investigates, attorney Thomas Ryan said the day following the release of the coroner's findings in the death of the 39-year-old welder.

Ryan said the internal investigation was launched immediately after the incident, which occurred Aug. 24.

The investigation is not focusing on the actions of any particular officer but on the circumstances of the case as a whole, according to Ryan.

Ryan said the department's internal investigation is not taking a back seat to a separate FBI investigation but is running concurrently with the federal probe.

FBI spokeswoman Wendy Osborne said Wednesday the federal agency is continuing to conduct its own independent investigation into the case for potential civil rights violations.

Once that is completed, the U.S. attorney's office could make an immediate determination of wrongdoing, close the case or return it to the FBI for additional work, she said.
"It could take some time," Osborne said.

Osborne said the federal agency typically collects data and documents, including medical records, and conduct interviews as it investigates.

Clement died Sept. 8 from what the coroner determined to be natural causes, resulting from complications of the diabetes Clement suffered since the age of 11.

Based on hospital records, the coroner determined Clement was not intoxicated as suspected by police.

Police reports indicate a scrap yard employee had called police a little after 10 a.m. on Aug. 24 after seeing a dazed Clement drive onto the property and stop the car.

At least four of seven responding officers, believing Clement to be drunk, struggled with Clement trying to arrest him, according to the police reports. Called to treat Clement for pepper spray and bleeding from the nose, paramedics suggested to police Clement was suffering from a diabetic attack. During treatment at the scene for the diabetic attack, Clement went into cardiac arrest.

Clement died 16 days later never regaining consciousness.

Attorneys for Clement's family this week filed a tort claim against the city charging negligence and excessive force. The claim seeks more than $5 million in damages. The city has 90 days to respond.

Many West Virginia residents received a political mailer on October 16, 2006. This mailer is funded by Don Blankenship, the coal millionaire who has decided it is up to him to singlehandedly change the face of West Virginia politics. Mr. Blankenship, of Massey Energy, has selected individuals around our state that will support his thinking and desires and has committed millions of dollars to their election efforts. While his flyers are all cautious to state that they are not affiliated with any political party and that no party or candidate authorized them, the intent of his efforts is clear.

No one can be critical of the fact that we are free to choose the candidates for public office we want to support. In fact, no one can be critical of our desire to make financial contributions to those candidates. However, this is a case of Mr. Blankenship adding his big money to the political arena in a way that is perfectly legal, yet that also makes a greater impact than most individuals can or would choose. Is it fair that Mr. Blankenship, because of his nearly unlimited resources, gets to shape the West Virginia political landscape? We don’t believe so. Is it fair that his political mailers are presenting bits and pieces of the real facts, largely out of context, in an effort to change West Virginians’ thinking? We know it isn’t.

The latest mailer targets politicians who voted in favor of House Bill 4308, the one that we have discussed extensively on this site. It contains very graphic pictures of vehicle wrecks, including one with a school bus, that we are to assume are the results of a drunken driver. These pictures, whether or not they have any relation to an actual drunk driving accident, are intended to play on our sympathies for human tragedy and suffering. No sane person wants to see others suffer, but a dose of reality is always a good thing and realizing that these pictures are nothing more than advertising drama is important to an understanding of the message being sent. Mr. Blankenship is attempting to sway the thinking of voters by telling us to conclude that any politician who voted in favor of HB4308 supports drunk drivers and is probably just a bad person overall. The mailer ignores the real facts behind the Bill and why politicians would choose to support it.

The reality is that HB4308 was only designed to clarify a point of law that has stood for ages - that a No Contest plea in a DUI case did not mean an accused drunk driver’s license would be automatically suspended. The reality is that HB4308 still allowed a driver’s license to be suspended for DUI, but that the arresting officer was still required to prove that the driver was actually under the influence of alcohol when he or she was arrested. Mr. Blankenship wants you to think that this is a twisting of the law and of the moral fabric of our society. What it really is is the protection of a legal safeguard put in place to ensure that we all, as citizens of this great state, are not overrun by the government. The legal system is a system of checks and balances - without defense lawyers, the actions of the government are not questioned and permissible legal challenges are not made. If Mr. Blankenship is able to buy numerous seats in state government, we have to wonder what he will gain. He already owns a seat on the state supreme court; what’s next for him and for us?

In keeping with our firm’s position that individual rights and freedoms are of the foremost importance, we encourage anyone who reads this opinion to vote for candidates of their own choosing. But do so for your own reasons - not because a millionaire who lives in a very different world told you that’s what you should do. Think for yourselves; for the sake of your own conscience; for the sake of your personal freedoms; and, to borrow a phrase, for the sake of the kids.

The West Virginia DMV has taken the next step in its efforts to eliminate the fair hearing process in West Virginia DUI cases. The official position that the Division is taking, in light of the Crouch opinion from the West Virginia Supreme Court of Appeals is that the documents contained in the Commissioner’s file are sufficient to prove the arresting officer’s case without any further testimony from the officer.

In other words, the officer need only show up at the hearing for now and his or her case is deemed sufficiently proven if no other evidence is presented. In the opinion of some hearing examiners, the officer does not even have to present a case, but instead may stand silent on the record of documents already in the Commissioner’s file. This is an act of shifting the burden of proof to the licensee and away from the officer, a position that has not historically been the case. However, DMV is apparently taking the position that the Crouch opinion gives it the authority to do just that.

The most frustrating, and legally bewildering, aspect of this change is that the Commissioner’s file rarely contains anything relevant to the facts of the arrest beyond the Statement of Arresting Officer and the breath test printer ticket. These two documents, in the opinion of the DMV, are fully sufficient to prove a driver was under the influence at the time of arrest. However, very little useful information is contained on those documents - certainly not enough to prove a case in its entirety to anyone of reasonable intelligence. However, DMV and some members of our state supreme court seem to have the mentality required to make this leap of faith.

It is clear that West Virginia’s DMV is attempting to move towards a hearing process in which the arresting officer does not even need to show up at the heari