DUI News

The Raleigh (NC) News Observer reported yesterday on yet another state run crime lab that is operating under standards that are not consistent with rules set forth by The American Society of Crime Laboratory Directors Laboratory Accreditation Board. Trouble is, the North Carolina State Bureau of Investigation lab is accredited by that agency, a sign that perhaps its standards simply don’t measure up.

• Elimination of need for arresting officer to prove the accuracy and authenticity of all documents he/she submitted, including breath test results
  
• Elimination of initial burden of proof on arresting officer
• Shifting burden of proof to respondent-drivers
• Elimination of WV Rules of Evidence in DMV hearings
• Elimination of 4th amendment protections in DMV hearings
• Elimination of fair consideration of objections of respondent-drivers' counsel
• Elimination of right for drivers to plead no contest in criminal cases and still have a DMV administrative hearing - even though this was how the law operated since the beginning of the system decades ago

• Ensure that the Rules of Evidence apply at license hearings
• Ensure that police officers had a lawful reason for a traffic stop in DUI cases
• Ensure that once a license hearing is settled in favor of a driver, that ruling is final
• Ensure that DMV can only schedule multiple license suspension hearings if an officer or driver is unable to attend the first scheduled hearing to due to emergency circumstances
• Restore the legally historical effects of a No Contest plea in the related criminal case (No Contest pleas will not result in license suspension except for CDL holders)
• Takes Hearing Examiners out from under DMV authority and places them within the State Administrative Law Judge office

The West Virginia State Police will be conducting a sobriety checkpoint in Clarksburg on December 4, 2009, near the entrance of RCB High School on Rt. 98 from 8 p.m. until 2 a.m. This information was published in today’s Exponent Telegram in compliance with state law regarding the conduct of such checkpoints.

Because checkpoints are deemed voluntary by the US Supreme Court, drivers have the right to be informed of the locations and other details, and further have the right to travel by alternate routes so they may avoid any perceived inconvenience in the checkpoint. In this instance, while no alternate routes were published, drivers may avoid the checkpoint by using Chestnut Street and Rt. 98 on the south end near the VA Hospital and Clarksburg Water Board facility, and may also use Rt. 20/Haymond Highway on the Nutter Fort end.

Common practice in checkpoints is for "chase" cars to be positioned near alternate routes and those drivers who choose to use the alternate routes are often followed to determine if they may be avoiding the checkpoint for a public safety reason. If a lawful reason exists to do so, those vehicles will be stopped and checked even though they did not go through the checkpoint. For that reason, we urge caution when you choose to avoid a checkpoint.

Of course, as always, we urge drivers to not operate a vehicle while impaired due to the substantial risks involved with doing so. If you are unsure about your ability to safely operate a vehicle after consuming alcohol or drugs, please do the smart thing and call a friend for a ride, or call a cab. The police will even provide rides to those doing the responsible thing and not getting behind the wheel when they cannot do so safely, so take advantage of the available options and arrive home safely.

News stories published yesterday highlighted the decision of the US Supreme Court declining to hear arguments on an appeal of a DUI case from the Commonwealth of Virginia. In those articles, Chief Justice John Roberts blasted the Court for declining to hear the case because he believed that the issue was too important to let go unaddressed by the nation’s highest court.

The case involved a Virginia resident, Joseph A. Moses Harris, who was arrested for driving under the influence after an anonymous tip that the vehicle was being operated in an erratic manner, but the police officer who responded to the dispatch from his department did not observe any appreciable erratic driving or violations of law before stopping Harris anyway. Harris was arrested and later convicted of DUI, but the Virginia Supreme Court overturned his conviction on the grounds that the police officer did not observe any unlawful activity and, thus, was unable to make a lawful traffic stop on Harris.

Roberts, in a dissenting opinion, said that "The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road — by which time it may be too late." The obvious flaw in this logic is that police officers must have a reasonable belief that criminal activity is occurring in their presence to detain a person without a warrant, but Roberts is saying that doesn’t really matter in cases of driving under the influence.

Individuals are guaranteed by the 4^th Amendment of the US Constitution - and by most state constitutions as well - to be free from unreasonable searches and seizures. Unless a search/seizure is supported by evidence of criminal conduct, it is generally found to be unlawful and those cases are normally dismissed because of that violation of individual rights. That is a standard upon which the freedom in our society is solidly grounded.

Roberts’ opinion suggests that police should be free to stop any vehicle when an anonymous person tips law enforcement that the occupant may be committing a crime. This means that a person who has a personal axe to grind against another can make an unfounded call just to get that person harassed by police. It means that someone who sees something occur, but has totally misconstrued what they saw, can cause law enforcement to detain someone. It means that police work no longer needs to be done - officers may just rely on some unknown person who offers a tip, regardless of the quality of that tip, and use it as a basis to invade our guaranteed privacy for no legitimate reason whatsoever.

Fortunately, many states, West Virginia included, have legal standards that prevent this sort of thing. In West Virginia, our Supreme Court ruled in the case of State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), that a police officer may rely upon an anonymous call as the basis for conducting a search or seizure of a person if subsequent police work or other facts support the reliability of that call and, thereby, it is sufficiently corroborated to justify the investigatory stop under the reasonable-suspicion standard. In other words, the officer must observe something that tends to support the information provided in the anonymous call, and cannot simply stop and detain someone without justification.

However, this standard is offensive to many who believe that because these are DUI cases, there should be none of the same constitutional protections afforded to every other alleged criminal offender in our country. DUI is modern society’s version of the early American witch hunts. No one at La Neve Law Offices supports drunken driving, but we, like everyone else should, support personal freedoms and the rule of law that gives everyone the same protections. Carving out exceptions to exclude one class of people is improper and unfair. Roberts’ reaction is symbolic of the large numbers of citizens who want to eliminate basic constitutional protections in DUI cases just because they are DUI cases. We applaud his zeal, but we must decry his logic. The majority of the US Supreme Court got it right in Mr. Harris’s case.

The West Virginia State Police will be conducting a sobriety checkpoint on Route 98 in Clarksburg near the entrance to Robert C. Byrd High School on August 22, 2009, from 8:00 pm until 2:00 am.

Remember that very strict 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 West Virginia DUI defense counsel and learning more about your options.

If you have questions about DUI checkpoints, feel free to contact Jason M. Glass of La Neve Law Offices, toll-free, at 866-MY-WV-DUI (866-699-8384), or via e-mail at jglass@wvlegalteam.com.

La Neve Law Offices is proud to announce that attorney Jason M. Glass has recently completed factory authorized training on operation of the Intoximeters, Inc., EC/IR II breath testing machine. The Intoximeter EC/IR II is currently the only evidential breath testing machine used in the entire State of West Virginia.

The training session contained the identical content as that provided to all police personnel in the State of West Virginia who conduct breath testing in West Virginia DUI cases. Mr. Glass is one of only two West Virginia DUI defense attorneys in the entire State of West Virginia to have received this training.

If you have questions about the training or operation of the EC/IR II DUI breath testing machine, please contact Mr. Glass at jglass@wvlegalteam.com or by calling, toll-free, 866-MY-WV-DUI ((866-699-8384).

The California Supreme Court, one of the most liberal in the country, has recognized in a recent ruling a shortcoming of breath-alcohol testing that has been advanced by criminal attorneys throughout the country for years.

That shortcoming has to deal with how the breath machines convert a breath-alcohol reading into a blood-alcohol level. When consumed, alcohol is carried in the blood to the brain, liver, and heart, before it diffuses in the lungs. Breath machines rely on a scientific formula known as "Henry’s Law" in order to estimate blood-alcohol level from the amount of alcohol vapor carried in the lungs. It is said that the amount of alcohol in 100 milliliters of blood (roughly the size of a playing die) is equal to the amount of alcohol in 210 liters of breath (about the size of a 55 gallon drum), or a 2100:1 ratio, known as the partition ratio.

The California Supreme Court has recognized that this ratio can vary greatly for every human being and can be influenced by factors such as body temperature, atmospheric pressure, medical conditions, and the precision of the measuring device. Just like no two people are alike, likewise will no two people have the same partition ratios.

This is something that any breath machine fails to take into account. Neither do any of them take into account that an individual may have asthma, and due to this medical condition will contain a higher concentration of alcohol vapors in their lungs than usual. Hence it will estimate an erroneously high blood-alcohol level. Breath machines are incapable of accounting for a large variety of individual factors that can impact the results of a breath test, instead just making some very crucial - and typically inaccurate - assumptions about anyone who may be tested on any given machine.

Finally, some courts are starting to see into the fallacy that is breath testing. It is now up to juries to tell the government that it is not good enough for averages and "scientific" assumptions to be used when dealing with the issue of a person’s freedom!

For more detailed information on this court opinion or on breath testing issues in general, contact Jason Glass of La Neve Law Offices, toll-free, at 866-MY-WV-DUI (866-699-8384) or via email at jglass@wvlegalteam.com

If you are driving one of the hundreds of thousands of vehicles equipped with OnStar, you better watch what you are saying. OnStar records all communications made between the driver and the company, and that may make sense. OnStar also records all phone calls placed using its service.

But what you may not know is that OnStar is always active and transmits everything said within the passenger compartment of your vehicle! OnStar acts as "hot mic", meaning it is always actively listening. This makes it possible for any employees of OnStar to tune in to the frequency your vehicle uses and listen in on your conversations, without you ever knowing it! And courts have held that this is not an invasion of your privacy on their way to allowing evidence of those conversations to be used to convict people of various crimes.

So, if you drive an OnStar equipped vehicle, you might want to watch what you say because, chances are, someone is listening.

For more information about this situation, and what it could mean to you, contact our office, toll-free, at 866-MY-WV-DUI (866-699-8384), or email Jason Glass at jglass@wvlegalteam.com.

The United States Supreme Court just issued a decision this week that will impact criminal trials throughout the country, including DUI cases. In Melendez-Diaz v. Massachusetts, the Court held that the admission into evidence of certificates prepared by laboratory analysts stating the results of a drug evaluation violated the defendant’s confrontation clause rights.

The Sixth Amendment to the United States Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In a 2004 case, Crawford v. Washington, the Court held that the Sixth Amendment guarantees a defendant the right to confront those "who ‘bear testimony’" against them.

In Melendez-Diaz, the Court came to the conclusion that the affidavits prepared by the lab analysts were in fact testimony. Thus, the prosecution cannot admit them in a criminal trial without having the person that prepared those documents appear to testify in court and be subject to cross examination by defense counsel.

Melindez-Diaz, will be directly impact DUI cases, especially when a blood or urine test is conducted. No more will the prosecution be able to admit a copy of the results of a blood test through the arresting officer who typically had absolutely nothing to do with the conduct of the test. The government is now forced to call the lab analyst who conducted the test if prosecutors wish to admit and rely upon the results of the test. It is only by having the lab analyst on the stand that defense counsel can inquire as to how the test was conducted - we obviously cannot cross examine a piece of paper.

This ruling confirms what many of us thought when Crawford was decided five years ago. In order for a blood or urine test to be admissible in trial, the state must present the lab analyst as a witness. Meledez-Diaz, and its interpretation of the Sixth Amendment, confirms that there is no other way for this evidence to properly be admitted in trial.

For more information on this case, please contact our office directly, toll-free, at 866-MY-WV-DUI (866-699-8384), or email attorney Jason Glass at jglass@wvlegalteam.com.

The West Virginia legislature is busily addressing a number of issues in the final days of the 2009 regular session. Today, the Senate Judiciary Committee, chaired by Sen. Jeff Kessler of Marshall County, conducted open hearings on the abusive practices of DMV that have completely changed the landscape of administrative license suspension hearings in West Virginia.

There are several bills in the legislature right now which will effect those who may be facing a DUI charge in West Virginia.

This database is to include the individual’s name, date of birth, a photograph, and any other information considered necessary to identify the individual. What is the point in establishing this database and making it accessible to anyone who wants to see it other than public humiliation? Next thing you know, this astute group is going to pass a law like Ohio did in 2004 which requires those convicted of DUI to put a bright yellow license plate on their vehicle distinguishing them as a drunk - nothing more, nothing less. Where is the statewide database for those convicted of larceny, arson, kidnapping, or child abuse? Why aren’t these issues considered relevant to public safety (think of Florida, Georgia, and other states in which such people have kidnapped, violated, and murdered little children in the past few years).

La Neve Law Offices is saddened to learn of the death of West Virginia Supreme Court Justice Joe Albright.  Justice Albright passed away on Friday, March 20, 2009 and he leaves a void of reason and fairness on the bench.

Justice Albright was an outstanding legal scholar and his work was at the heart of many decisions favorable to individual liberties and rights.  The absence of his influence on the Court will be missed and, as lawyers who represent individuals, we can only hope that Gov. Manchin appoints someone who is equally interested in individual rights to avoid a lopsided imbalance towards the continued and further deprivation of those rights that seems to flow from the Court in this era.

Our thoughts and prayers are with Justice Albright's family.

La Neve Law Offices is happy to unveil a new format for our West Virginia DUI information website.  We are currently working on the addition of more materials to enhance the usefulness of our site and are updating some of the older information to ensure that we are providing the most up to date general information on West Virginia DUI arrests.

If you have any comments, suggestions, or questions, please contact us at 866-MY-WV-DUI (866-699-8384) or email any of us through our email addresses provided under our profiles.

Earlier this month Joseph Cicchirillo, the commissioner of one of our favorite state agencies, the West Virginia Division of Motor Vehicles, resigned. While an official reason was not given as to why he resigned, it is widely speculated that he was forced out by the governor due to recent events even though the Governor's office has been publicly supportive of Cicchirillo's term at the DMV.

Those events include a case arising out of Lincoln County, McCormick v. Cicchirillo, were several DMV hearing examiners testified that they were told to ignore the rules of evidence and overrule every objection made by defense counsel. Judge Jay Hoke found those witnesses to be credible and sent the case back to the DMV to issue a proper order.

Judge Hoke stated that summarily overruling all objections is arbitrary and capricious and an unconstitutional denial of due process. We currently have the transcripts of the multiple days of testimony being prepared, so check back in later for further details of the case.

But the straw that seemed to have broken the camel’s back was when Mr. Cicchirillo hired his daughter to be a DMV hearing examiner in the northern panhandle. However, she has since resigned her position as a DMV hearing examiner and taken one in the Hancock County Prosecutor’s Office.

It is about time that some light was shed on the underhanded methods that the whiz kids at DMV legal have employed to deny anyone accused of a DUI in West Virginia the right to a fair hearing. Most unfortunately for the citizens of West Virginia and our guests who are accused of DUI offenses, Cicchirillo turned a blind eye to the antics of his legal department and allowed abuses of all sorts to occur.

The problem inside DMV led to one of the whiz kids from the legal section to tell a West Virginia DUI defense lawyer that "they are all guilty anyway." I guess he doesn’t believe in the concept of innocent until proven guilty in the criminal courts, or in the idea of fair due process in the administrative realm. Lets hope the new commissioner, Joe Miller, who has already shown balance and reason in his short time on the job, can root out the problem and restore fairness to the process for all who encounter it.

Just when you think you have seen it all. This past Wednesday, a South Carolina State Trooper was arrested for a DUI in his personal vehicle. But that isn’t the strange part of the arrest - a run-of-the-mill DUI wasn’t enough for this officer. He was dressed as a woman, complete with a blonde wig, red dress, and matching women’s under garments. Read the complete article here.

The California DMV has a secret memo that recently surfaced and it does not paint that agency in a good light.  To read more about it, please visit www.duiblog.com, a site operated by California attorney Lawrence Taylor.  If the story is no longer on the main page when you visit the site, just search for the blog entry entitled "Secret Memo."

Why does a California issue have any relation to WV DUI cases?  Our own DMV has engaged in these sorts of tactics for at least a couple of years now.  An appeal lawsuit is currently pending from Lincoln County Circuit Court Judge Jay Hoke, although the case was argued in Kanawha County.

The case involves a number of issues related to how the DMV is conducting driver's license suspension hearings in West Virginia DUI cases.  The DMV has been steadily eliminating driver's rights over the years, as has been discussed here a number of times, and those back room tactics are finally starting to see the light of day.  And the proverbial cockroaches are beginning to scramble.

A number of appeals of DMV license suspensions have been filed all over the state and a large number of those suspensions are being overturned as circuit court judges, trained and experienced in the law, take exception with the practices employed by the West Virginia DMV legal department.  To be clear, not all the changes are unsupported by law.  There are changes which are consistent with case opinions from our state supreme court and with changes in state code and regulation. 

However, the majority of the changes are a mere reflection of the reality that the administration and legal department of the West Virginia DMV are not interested in providing drivers accused of a West Virginia DUI offense with a fair and impartial license suspension hearing.  To the contrary, the rule and procedure changes being made show that it is the intent of the DMV to create an environment in which it can suspend as many driver's licenses as possible in alleged cases of drunk driving.

As more information comes to light, we will post it here and let the citizens of West Virginia, and our guests from other states who drive on our roads, know exactly what secrets are being cooked up in the back rooms of the West Virginia DMV offices in Charleston.

The FAA has added a new requirement on its Application for Airman Medical Certificate that is of importance to not only pilots accused of DUI offenses, but also pilots who are arrested by the police for any offense at all.

All U.S. certificated civilian pilots are required to make reports to the FAA when they are convicted of a DUI offense or have their driver's license suspended as a result of a DUI offense.  That obligation remains unchanged.  As well, pilots have historically needed to disclose those events on their Application for Airman Medical Certificate in block 18.v. of the application. 

The FAA recently changed the requirements of 18.v. to include not only the previously required items, but to add the requirement of disclosing any arrests, apparently even if those arrests did not lead to a conviction or if the criminal charge is still ongoing.

It is reasonable for the FAA to be interested in those convicted of alcohol related offenses as those events may have a bearing on an individual's ability to safely operate an aircraft.  However, many arrests occur daily in the U.S., for DUI or otherwise, that end up being dismissed in court for various legal reasons.  Those arrests are essentially nullified through ongoing investigation and legal decision making by the courts and lawyers.  There seems to be no legitimate reason for the FAA to be interested in mere arrests when there has not been any conviction associated with that arrest, whether for a charge of driving under the influence or otherwise.

This matter is currently being addressed by the Aircraft Owners and Pilots Association (AOPA) and any developments will be noted here.  In the meantime, for attorneys representing pilots and for pilots who have been arrested for an alleged criminal violation, be aware that the rules have changed and possession of a valid medical certificate depends on proper disclosure of this new information.  And remember that failing to make the new disclosure can lead to revocation of flight privileges.

To learn more, please contact La Neve Law Offices via email or our phone, all listed here on the site.

In spite of an increasingly ludicrous effort by the West Virginia Division of Motor Vehicles (DMV) to strip away fair hearing rights from drivers accused of driving under the influence in West Virginia, it is still possible to save your drivers license in a DUI case.

DUI defense attorney Jason Glass of La Neve Law Offices recently received two final orders from the DMV in which clients of La Neve Law Offices won their DUI license suspension hearings before DMV hearing examiners.  Both cases, from different counties and different hearing examiners, involved the sort of complex DUI defense issues that can make or break a case if not handled properly. 

Jason Glass did a great job as a true DUI defender for our clients and was able to establish that the procedures used to stop and arrest our clients accused of DUI were flawed and did not meet the necessary level of proof that would justify DMV suspension of their licenses.

The goal at La Neve Law Offices is to serve our clients with the greatest professionalism possible and to fight for their rights.  For more information about your case or your West Virginia DUI questions, contact La Neve Law Offices, toll-free, at 866-MY-WV-DUI (866-699-8384).

Please be sure to check the updates under the DUI Penalties tab under the DUI Info menu item.  We recently updated the penalties to reflect the changes in the DUI laws as passed by the West Virginia legislature this last session.

If you have questions about the changes or about West Virginia DUI arrests in general, please be sure to contact us via email or phone, toll-free, at 866-MY-WV-DUI (866-699-8384).

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."

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).

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 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.

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 hearing. Several states already have this process, one of which is our border neighbor Maryland. In Maryland, the suspension periods are often preset times and the driver is permitted a hearing during which evidence may be produced to establish justification for reduction, modification, or elimination of the proposed suspension. The arresting officer does not come to the hearings in Maryland and is already presumed to have made his or her case simply by the act of having made an arrest (whether or not the arrest was legally sufficient) and filing the required paperwork. This is a clear example of how the rights of those accused of DUI are erased simply because the individual has been accused of a DUI offense. In reality, it is nothing more than a modern day witch hunt.

As this practice continues in the West Virginia DMV DUI hearing process, challenges will be made by those affected and the law will settle out. Where it ends up still remains to be seen, but one thing is clear. Every time the West Virginia DMV feels that individual rights have made progress, the DMV will step in and find a way to work around those individual rights in the name of suspending more licenses. And you can also rest assured that they are looking for ways to make their workload lighter so they don’t have to work as hard for those fat salaries they are making at the expense of the citizens of this great state.

For more information, call us, toll-free, at 866-MY-WV-DUI (866-699-8384), or e-mail any one of us at the addresses contained in our site.

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 Clarksburg Police Department will conduct another checkpoint from 8 pm -12 pm on Thursday night, September 14, 2006, on Main Street between Wood and Harrison Streets.  Alternate routes for those who do not wish to participate in the voluntary checkpoint will be Joyce and Oak Streets.

It was also announced that the Clarksburg Police Department and the Harrison County Sheriff's Department will hold a joint DUI checkpoint next week in Clarksburg.  We will announce details later.

The Clarksburg Police Department has announced it will condut a DUI checkpoint tonight, Thursday, September 7, 2006, from 8 pm until midnight.

The checkpoint will be set up on Main Street at the intersection of Harrison and Wood Streets, with alternate routes on Oak and Marshall Streets.

While the courts, both at the state and federal level, have ordinarily upheld the constituationality of DUI checkpoints, there are still defenses available to arrests made at such checkpoints, particularly when adminstrative procedures for the checkpoint are not properly followed.

As well, one of the biggest things that leads to arrests at DUI checkpoints is people actually using the alternate routes to avoid passing through the checkpoint.  The law requires that alternate routes be made available because participation in DUI checkpoints is supposed to be voluntary.  However, it is not at all uncommon for officers to be stationed along those alternate routes, or to be positioned to watch for drivers who elect not to drive through the checkpoint.  Once those officers focus on a vehicle that is avoiding the checkpoint, it is just a matter of following long enough to see a minor traffic violation, whether real or imagined, and a stop will occur.  The DUI investigation will immediately follow.

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

It's been said that truth is stranger than fiction.  West Virginia's DMV has proven that to be true.

After numerous ups and downs on the issue of how no contest pleas in West Virginia DUI cases affect, or don't affect, a driver's license rights at the DMV administrative hearing, it now appears the issue is settled.  At least for the time being.

The DMV legal section has finally acknowleged that even though the statutory change (House Bill 4308, discussed in earlier articles here) that was attempted during the last legislative session failed to pass, a change to the administrative rules must now be given full effect.

In anticipation that HB4308 would pass, the DMV rules were also changed to state that no contest pleas in DUI cases would not count as convictions for the purposes of the automatic license revocation that takes place in West Virginia after a driver has been convicted of DUI or has entered a plea of guilty to a DUI. 

But, when HB4308 failed to pass, the DMV legal section stated publicly, in the Charleston Gazette and other places, that they did not have to give any weight to the rule change, which can be found on the West Virginia Secretary of State's website by clicking here, then scrolling down to the bottom of page 17 and the heading, "§ 91-5-14 Driving Under the Influence."

The DMV stated that this section would not be given any effect because there was not a corresponding state code which said the same thing.  Amazingly, the DMV legal division, the same office that previously said § 91-5-14 had no legal effect, now says that it only recently became aware of the change and that because it is a DMV rule, the DMV will now give full effect to the language contained in the rule.  These people just did a complete 180 on their positions with absolutely nothing new happening to prompt such a radical change of view!!!

To us at La Neve Law Offices, the really interesting thing about this latest change is that it marks the third time in the last couple of years that DMV has come out of the gates screaming one position from the rooftops, then later done a complete reversal.

The first time was when this law was changed with the Supreme Court's decision in Stump v. Johnson (also discussed in an earlier article on this site) and no contest pleas were used to support license convictions.  The DMV applied the case retroactively, meaning it went back, and for any DMV administrative case still pending after a no contest plea had already been entered in the criminal court proceeding, suspended the licenses of those drivers affected.  Later, DMV realized the huge mistake of doing so and corrected its misinterpretation of the law, reinstating the licenses of those affected and giving them new administrative license hearings.  Strike one.

The second major change was when DMV began denying drivers the right to have hearings on their proposed license suspensions unless the drivers showed "good cause" as to why they should be granted a license hearing.  This was just another attempt by DMV legal to try and avoid having to do their jobs by conducting hearings on proposed license suspensions.  After enough challenges were made and enough suspensions were reversed, DMV legal acknowledged that state code and caselaw provide a right to such a hearing and essentially dropped the "good cause" requirement.  Strike two.

The final fiasco is this latest development.  DMV now acknowledges it must follow its own rules, like it or not, and must not treat no contest pleas as convictions, even though they have done so for more than half a year when their own rules said they couldn't.  Strike three.

In the real world, where people work every day and perform their jobs under scrutiny of supervisors and bosses, three huge errors like this would cost most of us our employment.  But, in government service, it's apparently not all that bad a thing to have happen.  In spite of these types of errors, the attorneys of the DMV legal section still make taxpayer funded salaries of more than $50,000 or $60,000 and their continued employment is not even in question.  It seems the joke is on those of us who earn our positions in the real world.  These lawyers get to make huge mistakes, cost drivers huge levels of inconvenience through the wrongful loss of their licenses or denial of the entitlement to a hearing, then just turn around and say, "whoops."  Incompetence?  You'll have to be the judges of that.

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

The Bridgeport PD has announced a checkpoint for Friday, August 11, 2006.  The location was not specified, but will either be on Johnson Avenue or on Route 50.

Also, the Harrison County Sheriff's Department is slated to conduct a checkpoint next Friday, August 18, 2006, in Anmoore.  This location is frequently used by the sheriff's department and is usually near the overpasses for I-79.

Todd La Neve just returned from an intensive three day continuing education program sponsored by the National College for DUI Defense in Cambridge, Massachusetts.  The program, conducted at Harvard University by NCDD members, focuses on trial skills and other areas critical to effective defense of DUI cases.

The classes, which include small group breakout sessions, give new and experienced DUI attorneys a chance to sharpen the advocacy skills and to learn more about areas such as field sobriety testing, blood and breath alcohol testing, and evidence issues.  Perhaps most importantly, though, is the fact that these seminars are great for motivating defense lawyers to jump back into work the next business day with a renewed sense of purpose and importance for the work we do.

Well, the West Virginia DMV has done it, and much sooner than we thought it would happen.  The rules have been changed and the folks in Charleston are smiling.

In a very bold move, the DMV has effectively shifted the burden of proving a DUI from the officer's shoulders and placed it on the shoulders of the drivers, forcing them to prove their innocence.  Perhaps the most absurd thing about this change is that it arises from a very bad interpretation of recent case law.  Perhaps this is why the people who came up with this interpretation work in government and not the private sector.

One of the important steps in any DUI arrest is the officer's filing of what is called the "Statement of Arresting Officer," a document that effectively starts the DMV hearing and suspension process.  The case of State v. Crouch, the supreme court ruled generally that this written statement was sufficient to establish the legal concept of jurisdiction for the officer's arrest, a term that addresses the propriety of an officer's authority to make an arrest in a particular location. 

The DMV scholars have read beyond anything contained the court's written opinion to state that this also means if the officer files his statement, then it is proof that he stopped the driver for a lawful reason, he administered all of the field tests properly and that he had sufficient probable cause to make an arrest for DUI.  In other words, the officer is presumed to have done everything right and it is up to the driver to disprove that presumption - the burden has been shifted from the officer to the driver.

This will, of course, be challenged in the courts.  But the most frightening prospect is that the pendulum has been swinging away from the interests of drivers accused of DUI and towards the police and state adminstrative agencies seeking to penalize them.  This is the nature of all things, but this one is so far beyond the norm that the challenges will abound.

In the meantime, the DMV powers that be can sit back and smile, knowing they've taken a huge step toward denying more rights to more drivers than ever before.  But as long as there is a dedicated defense bar, the process will be hard fought because any agency or person who chooses to play so free and loose with personal rights is bound to end up with a bad day of their own lurking right around the corner.

If you have questions or need more information about this latest fear-based move by the DMV, call us, toll-free, at 866-MY-WV-DUI (866-699-8384) or e-mail Todd La Neve at TLaNeve@wvdui.com.

An article in Saturday's Clarksburg Exponent-Telegram revealed that coal magnate Don Blankenship plans to spend millions in the next several months to try and unseat numerous incumbent state legislators as well as pursue other objectives. 

One of those stated objectives is to go after driving under the influence in West Virginia.  While the article did not provide detail on his objectives, it is fairly clear that Mr. Blankenship feels the constitutional exceptions that apply only to DUI cases, making the laws tough as they already are, just aren't doing enough to his way of thinking.

Mr. Blankenship is not alone in desiring roadways free of unsafe drivers, but his approach of throwing money after this issue will likely reflect the agenda of other interest groups, such as Mothers Against Drunk Driving.  The end result, if successful, may be more severe limitations of personal rights and freedoms - just one more step towards opening the door for such rights to be eliminated in other areas.  Because it is popular to attack those accused of DUI, whether or not they have been wrongly accused, such efforts often find great public support.  After all, we're just talking about a bunch of drunks on our highways, right, so who cares if we take away the constitutional protections that otherwise apply to us all?

The sad thing is that while such an agenda is otherwise laudible, it misses the mark.  We can spend millions, whether they belong to the state, to private individuals, or to organizations, trying to make the laws tougher and tougher, all at the eventual expense of law abiding citizens.  Or we can choose to spend that same money on prevention programs, starting at the grade school level to teach future generations of drivers what it means to be safe and make responsible choices.

It's up to us as citizens of this state to decide - do we want big money corporations to speak for us by purchasing legislative seats in our government, or do we want to make our own voices heard and let our legislators know what is important to us?  It's a big choice, but one we need to make.

Over the last several months, rumors have been flying about possible rule changes for DMV license suspension hearings in West Virginia DUI cases.  All of the changes seem to reflect a sense of frustration at the DMV that not enough licenses are being suspended to satisfy the DMV legal division (so much for the DMV being a neutral state agency - it's more of an adverse party to drivers than ever before, yet that apparently isn't enough!).  

The talk suggests that new rules designed to make the arresting officer's job even easier are likely to go into effect, perhaps as early as this summer.  While defense attorneys and their clients are already under the gun at DMV hearings with changes that have taken place over the last two years (i.e., no contest plea changes, hearing examiners asking questions designed to make the officer's case for him, etc.), it seems more is yet to come.

Even police officers are growing more frustrated with the process as the DMV has almost eliminated their ability to control how the hearing goes.  Officers that I've spoken with over the last couple of years have often indicated they are frustrated by the way the DMV has taken over their roles and has eliminated their professional discretion in how cases are presented.

Of course, as with anything, this is the nature of our world.  The pendulum swings one way then it heads the other.  Right now, the DMV is riding high with rules that heavily favor an almost automatic suspension of drivers' licenses and with a handful of rulings from our state supreme court that have gone in DMV's favor.  Now, even in the absence of rule changes, the three attorneys who comprise the DMV legal department have taken some of those rulings and stretched them beyond their realistic applications to gain even more in their quest to see every DUI suspect's license suspended.  Of course, since no one in power at the DMV will stop them, they will run rampant until an appeals court shuts them down.

Simply, we are currently in an era during which the pendulum is swinging rapidly away from personal rights and protections and towards a DMV controlled environment in which unchecked government employees are calling the shots.  But don't worry too much.  As long as there is a defense bar willing to tackle these challenges and make the government accountable every step of the way, balance will return eventually.  Until then, buckle up and hold on.

While this entry may not seem directly related to DUI defense at first glance, we hope that you will continue to read.  The attorneys and staff of La Neve Law Offices are proud to say we support America's military men and women, and that we honor their sacrifice, this weekend and every day.

This weekend, the United States of America celebrate the Memorial Day holiday.  Too often, we overlook the significance of this day in our rush to go to parties, take a day off from work, and generally spend time doing something fun.  But if we stop and think on the true reason for this holiday, most of us will realize that this is in so many ways a somber time as well as a time of joyous celebration.

While many have lost sight of this fact, Memorial Day serves as a reminder to give thanks to the men and women who have served our country in times of war and peach, many of whom have paid the ultimate sacrifice in defending our freedoms and way of life.

The United States Department of Veteran's Affairs has a good website dedicated to Memorial Day, including historical information, traditions, and information on cemetaries for America's military veterans.  Please take a minute and browse the site to reconnect with the meaning of this special holiday.

And while you're out celebrating this weekend, remember that the rights guaranteed to you by the selfless sacrifice of so many Americans are only as valuable as the manner in which you chose to exercise them.  If you find that you've run into trouble and been arrested for DUI anywhere in West Virginia, remember to call La Neve Law Offices, toll-free, at 866-MY-WV-DUI.  We'll do our part to make sure that the Constitution is applied to your case, a right our veterans have fought, and continue to fight, to preserve.

With Memorial Day 2006 just around the corner, the unofficial summer season kickoff is here.  This time of year signifies numerous opportunities to get out and have fun, go to parties, spend days on the golf course, and pursue other activities that take advantage of the warm weather and long days.  Of course, this is also a time of year when DUI awareness increases and police DUI enforcement patrols and checkpoints are on the rise.  Extra caution is required to prevent yourself from becoming just another West Virginia DUI arrest statistic.

The laws of our state do not make it unlawful to drink alcoholic beverages and then drive a vehicle.  It only becomes illegal when you have consumed enough alcohol to reduce your ability to function in a normal manner or when you have consumed enough to have a blood alcohol concentration greater than the legal limit of .08.

However, in spite of this reality, NHTSA, in cooperation with state agencies and private organizations is promoting campaigns that tell us "Buzzed Driving is Drunk Driving" and "Impairment Begins with the First Drink."  These messages are scare tactics designed to frighten everyone away from consuming legal alcoholic beverages.  Is this necessarily a bad goal?  Probably not.  Are these messages factually and legally accurate?  Absolutely not.

Government misinformation in the context of DUI prevention has long been the standard.  The theory seems to be that inaccurate scare tactics will eventually discourage everyone from consuming alcoholic beverages when they are planning to get behind the wheel of a vehicle. 

Unfortunately, these messages attempt to criminalize lawful behavior and, worse yet, the agencies promoting these messages pay top dollar in DUI enforcement grants to local and state law enforcement agencies.  The officers know that the more arrests they make, the more money their department gets.  

Some officers make double and triple their base salaries in DUI grant money through overtime work and court appearances.  MADD sponsors celebration dinners for officers who make over a set number of DUI arrests in a year.  The unfortunate reality is that the police are conditioned to believe these government lies about alcohol consumption and they end up arresting innocent people.  There are always reasons used to justify the arrest, but those reasons don't always hold up under scrutiny. 

Is money and personal recognition to blame for overzealous DUI enforcement efforts?  You have to be the judge.  Perhaps the bigger question ought to be why our government provides financial incentives for officers to make as many DUI arrests as possible.

When you are out and about this coming Memorial Day, celebrate in whatever manner you choose.  But remember to do so responsibly.  No one wants to live with the knowledge that they have hurt or killed someone as a result of driving when they shouldn't have been doing so.  But remember that even responsible celebration can lead to a DUI arrest in West Virginia, or any other state, because the men and women responsible for safety on the public roads have a little extra compensation coming if they make a coveted DUI arrest.  Don't give them the satisfaction, or the reason, for doing so in your case.  Please be responsible and be safe.

We have added the NHTSA field sobriety test battery update to our site and it can be viewed by clicking here.  You'll need Adobe to read the document, and we have added a free download link on the same page for those who don't yet have the free version.

As we mentioned in the last entry, the revisions may not mean much without also having the manual available for reference, but we are happy to answer any questions you may have about these changes in the primary DUI law enforcement techniques.

Just get in touch with us by calling, toll-free, (866)MY-WV-DUI (866-699-8384) or by e-mailing Todd La Neve at TLaNeve@wvdui.com.

Since the last post on this topic, we have obtained a copy of the NHTSA update details.  The updates for the standardized field sobriety testing manual do not go as far as they were initially thought to go, but some very interesting changes were made for the new manual.

Many of the changes are technical in nature and many will not appear to be significant to those who don't have the earlier manuals or some experience with the standardized field sobriety testing battery.  However, we will be adding a new page to our site that gives you a chance to read the complete breakdown of the changes should you wish to do so.

Of special interest is the fact that additional emphasis is being placed on field sobriety testing instructors making sure that students know the key to these tests producing valid results is adherence to the testing and scoring standards for all three tests - the horizontal gaze nystagmus (HGN), the walk and turn (WAT), and the one legged stand (OLS).

While these precautions have existed in every manual since NHTSA began publishing them, the added emphasis in the 2006 edition is interesting.  More interesting will be seeing whether or not the courts, or more so the DMV, will pay any more attention to the NHTSA admonitions than they have in the past.  Historically, the courts and the DMV have ignored the cautionary language NHTSA chose to use and have discounted defense arguments about variation from the written standard instead of discounting the arresting officer's administration and scoring of the tests.  Only time will on this change, but we will remain vigilant for opportunities to advance this argument.

As mentioned above, we will be posting a new page under our "Field Sobriety Testing" link (found under the "DUI Info" menu tab) that contains the fourteen page NHTSA description of the 2006 revisions to the Student Manual, Instructor's Manual, and Administrator's Guide.  As soon as the new page is completed, we will post notice here so you may read the materials.

Feel free to call us, toll-free, at (866)MY-WV-DUI (866-699-8384) with any questions about this issue, or e-mail Todd La Neve at TLaNeve@wvdui.com.

We've added some new material to the site, including links to other sites that are helpful in gaining a better understanding of DUI enforcement.

Under the "DUI Info" menu tab on our home page, you can now read about the driving clues that police officers look for when they are patrolling for DUI suspects.  We also briefly discuss the levels of statistical probability that the government has associated with each of the "suspicious" driving behaviors and why those levels of probability may not be as significant as the government wants us to believe.

As well, we made a small update to our FAQ page for the question "Are the Secondary Breath Testing Machines Accurate?"  We have added a link to a site that gives a good explanation of what a fuel cell is and what it does.  West Virginia's authorized DUI secondary breath testing machine, the Intoximeters EC/IR II, is based on fuel cell technology.  The fuel cell produces the blood alcohol reading based on the alcoholic content of the breath.

Feel free to contact us if you want to know more about these topics, or any topic related to DUI.  Call us toll-free at 866-MY-WV-DUI (866-699-8384) or e-mail Todd La Neve at TLaNeve@wvdui.com.

The National Highway Traffic Safety Administration (NHTSA), the U.S. government agency that sponsored the research and development of the standardized field sobriety testing battery, will soon be distributing a newly revised manual for DUI Detection and Standardized Field Sobriety Testing. 

This manual is the text used by most police training agencies around the country.  In West Virginia, the only police training agency is the West Virginia State Police Academy and all prospective officers, whether Trooper candidates or municipal officers, must complete training there.

The field sobriety testing manual was last updated in 2004.  That update, like most before it, consisted of the removal of guidelines that police were either unable or unwilling to follow when administering field sobriety tests.  As a result, they were subject to strong cross-examination by defense lawyers as a result of their failure to follow protocols.  NHTSA, in an effort to remove anything from the hands of defense attorneys that might actually be used to protect the basic constitutional rights of U.S. citizens, has consistently made it easier for officers who can't follow directions to administer the tests without drawing as much heat on themselves.

Now, through our sources close to NHTSA, we are being told that the 2006 update to the manual is actually adding material that had been previously deleted.  Of equal interest is the talk that one test is even being added to the testing battery, that being the "finger to nose" test.  This test, also known as the modified Rhomberg test, was considered when the original research into field sobriety testing was sponsored by NHTSA in the 70's and 80's, but was discarded as being too unreliable and not truly indicative of alcohol impairment.  Now, however, it appears it may be good enough for use by officers in the field.

While we do not yet know anything about the actual content and changes to the field sobriety test battery, the attorneys of La Neve Law Offices will likely be the first West Virginia DUI defense attorneys to have a copy of the new manual.  As soon as we have reviewed the changes, we'll post them here and on our field sobriety testing page inside the site.

As usual, if you have questions about this topic or any other topic related to DUI defense in West Virginia, please feel free to call us toll-free at 866-MY-WV-DUI (866-699-8384), or to e-mail West Virginia DUI defense lawyer Todd La Neve at TLaNeve@wvdui.com.  We look forward to serving you everywhere in West Virginia.

The Charleston Daily Mail ran an article today that suggests the no contest statutory change may not yet be dead.  We have discussed this issue, critical to those accused of DUI charges in West Virginia, in many of our more recent news entries.

The article contains a number of quotes from Rick Staton, the House majority leader, regarding the importance of the statutory change.  Several of his comments shed light on the very one-sided view taken by the DMV.

One point that continues to ring true in the tone of the DMV's published statements on this issue is that the top level managers act completely ignorant of the fact that as long as most people can remember, a no contest plea never resulted in an automatic license suspension.  That phenomenon only came about after a very questionable ruling by our supreme court in which the court's members agreed to disregard a long-standing legal standard - no contest pleas cannot be used against a defendant in any civil proceeding.

As we've said before, because of societal pressure, our courts are continually eliminating constitutional rights when it comes to a DUI defendant just because DUI is such an unpopular crime.  Murderers and child molesters have more rights than a DUI defendant, and perhaps only a child molester is seen as more of a villain than a DUI defendant!

This is an important issue and one that we will watch closely.  Any news will be reported here first and, as always, we are here to answer any questions you may have about DUI in general or this issue in particular.  Just contact us by phone, toll-free, at 866-MY-WV-DUI (866-699-8384), or by e-mail, TLaNeve@wvdui.com.

On March 30, 2006, Todd La Neve was qualified by the Magistrate Court of Upshur County as an expert in the area of Standardized Field Sobriety Testing and was permitted to testify in a jury trial.  This recognition opens the doors for Mr. La Neve to provide this service for DUI defendants all around West Virginia.

While a single court admission will not necessarily pave the way for automatic recognition in all courts, it is an important first step.  Mr. La Neve offers case consultations for those charged with DUI in West Virginia and, if you have already hired another attorney, will be happy to work with you and your attorney to help identify critical issues to your defense. 

This "second opinion" type of service can be of tremendous benefit for you as it allows you the opportunity to have not only your own attorney looking at the facts of your case, but also to have Mr. La Neve's experience and training on your side as well.

For more information about this case consultation service, contact Todd La Neve directly via e-mail at TLaNeve@wvdui.com, or call, toll-free, at 1-866-MY-WV-DUI (866-699-8384).

The Harrison County Sheriff's Department will be conducting three DUI checkpoints on Friday, March 31, 2006, according to a brief in the Clarksburg Exponent-Telegram. 

According to the article, the checkpoints will be on WV 20 near the intersection with Chubb Run in Quiet Dell, WV 58 at Anmoore, and on Philippi Pike in East View.

DUI checkpoints involve a number of unique legal issues for those arrested on DUI charges.  Very strict standards govern the checkpoints and failure to comply with all of those standards can result in arrests made at the checkpoint being ruled unlawful. 

One of the requirements is that the checkpoint location must provide alternate routes to avoid the checkpoint since participation in the checkpoint is completely voluntary.  However, it is often the case that officers are stationed along the alternate routes and they will closely scrutinize those who avoid the checkpoint.  Driving actions that would not draw a second look by officers during the day are normally used by officers to justify their stopping of drivers who avoided a checkpoint, so extra vigilance is mandatory. 

Of course, the easiest way to avoid a DUI arrest is to use common sense and good judgment when it comes to drinking alcoholic beverages.  Take advantage of designated drivers or taxi services if you have any question about your ability to safely drive after drinking.  Having represented hundreds of clients in DUI prosecutions all around West Virginia, we have seen firsthand how lives can be changed following an arrest.  If you find yourself in police custody, which is increasingly easy these days, make the call that makes a difference.  La Neve Law Offices is here to help protect your rights.

Call us, toll-free, at 866-MY-WV-DUI (866-699-8384), or e-mail Todd La Neve at TLaNeve@wvdui.com.

After the buzz of last week's eleventh hour legislative maneuvers and rumors of new DUI laws having been passed, then not being passed, it seems new controversy has arisen.

The Charleston Daily Mail reported in an article yesterday that a regulatory rule change had been passed in anticipation of the new legislation regarding the effects of no contest pleas.  This change was the subject of the last several entries on our site.  If you aren't familiar with the background, click here to be directed to the main news page on our site.

So what's the distinction between a regulation and a statute?  The most basic explanation is that a state's legislature passes laws that affect everyone.  Regulations are most simply defined as the rules that a state or federal agency makes regarding its own policies and procedures.  Those rules generally affect only those individuals who have dealings with the agency.  Examples of state agencies are the DMV, the Bureau of Public Health, or the State Board of Education.  Each agency makes its own rules governing how its particular state business is run.  However, that rulemaking power is not without some level of oversight by the state legislature and the legislature can make its own changes to regulatory rules.

While we have not yet conducted a thorough investigation into the nature of the regulatory change that allows drivers accused of DUI to still have a hearing following a no contest plea, it appears that the water is muddied.  Clearly, the DMV is nervous about the problems that it perceives may arise, but the statement that seems to perfectly typefy the mentality of the DMV is that this rule could put 2,000 drivers back on the roads after they pled no contest.  What DMV seems to continually overlook is that those drivers would not be back on the roads if the arresting officer's evidence was sufficient to meet the very light burden of proof that the officer has at DMV hearings.  The deck is stacked against drivers in DMV license revocation hearings and the DMV is continually doing more to make that imbalance ever greater.  If the officer's evidence can't pass muster with all the help that the DMV provides him or her, it stands to reason that the case against the driver's license privileges wasn't very good to start with.

So why is the DMV so worried about having to do its job?  Maybe that's a question that asked to your local lawmaker.  If the staff is afraid of working to get the job done, maybe a new staff is the solution.

For more information about this important topic, feel free to e-mail Todd La Neve at TLaNeve@wvdui.com or call us, toll-free, at 866-MY-WV-DUI (866-699-8384).

An article in the Charleston Gazette today revealed that House Bill 4308, which we have discussed in the last several posts, did not actually get approved to become law.

Prior to approving the Bill, the Senate amended the title so it would read consistently with the text of the new law (which simply clarified an existing state statute by adding some language about no contest pleas).  Because the Bill originated in the House, the Senate was required to obtain approval from the House on the title amendement.  The House voted approval and sent it back to the Senate for final action, but in the hectic final minutes of the regular legislative session, the Senate failed to vote on the Bill as it was caught up debating "Logan's Law," a measure aimed at stiffening penalties for sex offenders.

In the Charleston Gazette article, the DMV expresses relief that a tool for drunk drivers to keep their licenses even after being convicted did not get approved.  In reality, these statements show the ignorance and single-mindedness of the decision makers at DMV when it comes to understand long-established legal principles.  Simply, no matter how the DMV, MADD, or other advocacy groups want to view things, a no contest plea has never in the history of the law been equal a guilty plea or a conviction.

As we discussed in a prior article here, the West Virginia Supreme Court, much to the satisfaction of the DMV and MADD, eliminated the no contest/guilty/conviction distinction in DUI cases only.  Why?  Because DUI is an unpopular crime and groups like the DMV and MADD spend millions of dollars annually to influence law enforcement and courts to see matters from their perspective.  But, what about other crimes?  The law still views no contest pleas as very different legal creatures than guilty pleas or convictions.  Are we then to assume that sexual crimes, crimes of violence, and others are actualy more acceptable than DUIs?  The way the law has been so singularly changed seems to suggest that this is the case because our supreme court eliminated this distinction in the pleas for DUIs only.

If you believe that creating a distinction in the law is important to preventing the undermining of additional rights we enjoy as West Virginians and Americans, contact your lawmakers and urge them to bring House Bill 4308 up again as soon as possible.  Contrary to what the DMV says, this does not provide an unfair loophole for "drunk drivers;" It restores a legal distinction that has stood since before most of us were born.  On the other hand, if this correction to a legal error does not come back into consideration, urge your lawmakers to reconsider legislation that eliminates the DMV from the license suspension process and puts that power in the sole hands of the courts.  If the DMV doesn't want to work at license suspensions, maybe our legislature can accommodate their desires.

House Bill 4308, the Bill which restores a driver's rights to enter a no contest plea in a DUI case without automatically resulting in the loss of a driver's license, passed the Senate during the last days of the regular legislative session.

As is often the case, a large number of Bills are acted upon during a final frenzy of legislative activity that occurs in the last few days of session.  The Bill, first introduced in the House Judicial Committee, gives back the ability to enter a no contest plea in a DUI case.  In July of 2005, the West Virginia Supreme Court decided a case in which it held that no contest pleas were the same thing as a conviction for purposes of DUI cases only.

That decision, Stump v. Johnson, eliminated a distinction between no contest and guilty pleas which has existed pretty much forever.  Before, a driver could enter a no contest plea to the criminal charge of DUI and still have a chance to keep his or her driver's license after a DMV hearing.  The Stump case eliminated that right and said that a no contest plea was the the same as a guilty plea or a conviction and that a driver who entered a no contest plea would automatically lose his license, just like someone who was convicted or pled guilty to the DUI charge.

The Stump decision was a perfect example of how our courts often undermine the individual rights of citizens when it comes to DUI cases.  This was especially highlighted by the fact that our state supreme court was clear in stating that this different definition of no contest only applied to DUI cases, not any other kind of criminal case.  Fortunately, our legislature was wise enough to see the potential problems such a restrictive ruling could have and took the appropriate steps to defeat the Stump v. Johnson decision with good lawmaking.

La Neve Law Offices is happy to help you understand the significance of this new law should you have questions.  Please feel free to contact us, toll-free, at 866-MY-WV-DUI (866-699-8384), or contact Todd La Neve via e-mail at TLaNeve@wvdui.com.

The new Bill we discussed last week, which was introduced the House Judiciary Committee, has been approved by the full House and has passed to the Senate where it is now being considered.

Click here to read the details.

This Bill is important not only for the purpose of protecting your rights as a driver accused of DUI, but also for the reason that it takes back some legal protections that were stripped by the West Virginia Supreme Court of Appeals.  The one thing that particularly stands out about the court decision is that this alteration of the effects of a "no contest" plea applied ONLY to DUI cases.  There could not have been a more clear demonstration of judicial bias towards DUI cases, an attitude reflective of the ever-increasing pressure by advocacy groups determined to ultimately make any amount of alcohol consumption prior to driving illegal.

Stay tuned to this site for more news on the progress of HB4308 and feel free to contact La Neve Law Offices for more information.  Call us, toll-free, at (866) MY-WV-DUI (8660699-8384) or e-mail Todd La Neve at TLaNeve@wvdui.com.

The West Virginia legislature is currently acting on a bill that would counteract the West Virginia Supreme Court's ruling in the case of Stump v. Johnson, a July 2005 decision.

In the Stump case, which we reported on shortly after it was issued, the Supreme Court ruled that DUI defendants who pled "no contest" to a DUI charge would automatically lose their driver's license.  Before that ruling, a no contest plea had no effect on license privileges and the DMV was required to conduct a separate hearing to determine if license suspension was proper.

The new bill, which originated in the House Judiciary Committee, specifically defines a no contest plea "as neither an admission of guilt nor a conviction for administrative revocation proceedings."  This bill would effectively overrule the Stump v. Johnson case in which a 3-2 majority of the court ruled that a no contest plea was, in effect, the same as having been convicted of a DUI offense.  Interestingly, that ruling applied only to DUI cases, not any other criminal offense, proof that DUI defendants face not only a society biased against alcohol use, but sometimes even courts that are biased against alcohol use.

We will continue to follow the development of this bill as it now goes to the full House for consideration and then, hopefully, to the full Senate.

If you have any questions in the meantime, please contact us by calling, toll-free, 866-MY-WV-DUI (866-699-8384), or by e-mailing tlaneve@wvdui.com.

All too often, when we receive and review copies of the state's evidence against our clients, we see that during questioning about whether they are under the influence, our clients have answered in the affirmative.  These answers range from "yes," to "I guess so," "I must be," "Absolutely," and "I suppose so."

Honesty is one thing, but answering a question that calls for what is really a legal answer without fully understanding what it is you are saying is just a recipe for trouble.  Society has conditioned nearly all of us to believe that having a single drink before driving is against the law.  It just isn't so.

The law allows us to drink and drive.  It does not allow us to do so if we are impaired by alcohol or our blood alcohol concentration is over the legal limit of .08. 

Along with being incorrectly conditioned to believe we are breaking the law by having a few drinks then driving, we then see people starting to make the incorrect connection that if they were stopped after having a few drinks, that they MUST be under the influence.  This is not only inaccurate, but it is an assumption that can cost you a trip to jail and the loss of your driver's license.

Remember, the US Constitution gives you the right to remain silent during police questioning at ANY time.  This includes at the roadside, in the police car, at the police station, and in jail.  Anything you say during this time will be used against you in court, especially uninformed statements like "I must be drunk, you arrested me."

All you have to provide to the police is a driver's license, registration, and proof of insurance.  You do not have to answer questions about drinking or anything else.  It is acceptable, and it is also your guaranteed constitutional right, to politely decline to answer any questions the officer may ask of you during a roadside stop.  But remember, the officer is doing a job and it does not pay for you to be rude or inconsiderate.  If you cannot politely decline to answer his or her questions, just be sure to say nothing and leave it at that!

If you have questions about your roadside rights and the things you should or shouldn't say to a police officer, call La Neve Law Offices, toll-free, at 866-MY-WV-DUI (866-699-8384).

We previously reported on changes to the license suspension laws in West Viriginia following a DUI arrest.  The changes are finally ready and have been added to our site.

Follow the link for "DUI Info" on the main page, then choose "DUI Penalties" and you will have the option of viewing "DMV Penalties" or "Criminal Penalties."  The "DMV Penalties" section is new and contains a table that sets out the new license suspension and reinstatement standards.

The main change is that overall suspension times have been reduced, but the DMV has now made participation in the Interlock program mandatory for some offenses.  In those cases, drivers will not be permitted to have their licenses reinstated unless they complete the mandatory period of participation in the Interlock program.

While these new standards shorten the overall suspension period for most offenses, the required participation adds more financial cost to the individual because participation in the program carries a monthly fee that currently averages between $60 and $70 per month.

For answers to more questions about the new laws, contact La Neve Law Offices, toll-free, at 866-MY-WV-DUI (866-699-8384) or by e-mail at tlaneve@wvdui.com.

There is increasing news in our state about crackdowns on DUI, and it doesn't stop with the passing of the holiday season.

One example of such efforts comes from Raleigh County where patrols have been busy enforcing alcohol and DUI laws since October of 2005.

These stories regularly appear in the news and serve as a reminder to all of us that law enforcement agencies in West Virginia take DUI offenses seriously.  It also shows that the police will exert all the resources available to them to make more arrests. 

While none of us want to see drinking and driving put us or our families at risk, it is just as important that we be free from the risk of wrongful or overzealous prosecution by the government.  If you feel you have been wrongfully accused, contact La Neve Law Offices for a free case consultation.

La Neve Law Offices wishes everyone a happy and safe New Year's celebration this coming weekend.

Police sobriety checkpoints and DUI "saturation patrols" will be occurring in virtually every West Virginia community with regular police service.

By law, the police agency conducting the checkpoint must provide alternate routes around the checkpoint for those who do not wish to participate in the "voluntary" check.  However, be aware that additional officers are ordinarily patrolling those escape routes and will find a reason to stop you if you have avoided the checkpoint.

In particular, the Clarksburg Police Department will be conducting a DUI sobriety checkpoint from 8 pm - 12 am at the intersection of West Pike Street and Milford Street on Friday, December 30, 2005.

The rules for conducting sobriety checkpoints are very strict and failure of the agency running the checkpoint to follow those rules can often be the basis for beating a DUI arrest that occurred at or near a checkpoint.

If you have questions about police DUI sobriety checkpoints before you encounter one, or if you get arrested after being stopped at a DUI sobriety checkpoint, contact La Neve Law Offices for help.

The West Virginia Supreme Court has recently decided a case involving additional suspension penalties for drivers who are serving a current DUI license suspension, but have continued to drive nonetheless.

In West Virginia, a criminal conviction for driving with a license  that has been revoked or suspended as a result of an earlier DUI conviction results in an automatic one year extension of the current suspension on the first offense.  Traditionally, that extra one year is imposed at the conclusion of the suspension that was active at the time of the unlawful driving. 

In other words, if a driver's license is suspended for six months on a first offense DUI, and he chooses to drive anyway after that suspension has taken effect and he gets caught doing so, the DMV imposes an extra one year after the conclusion of the underlying six month suspension.

There is normally no right to a hearing on the suspension that comes from a conviction for driving while revoked or suspended for an earlier DUI.

The new ruling holds that even if the criminal charge of driving while revoked or suspended for DUI is reduced to a charge of driving while revoked or suspended for non-DUI reasons (a charge that does not carry an automatic suspension for the first offense) as part of a plea bargain, the evidence that the suspended driver was still operating a motor vehicle is sufficient to trigger an additional one year suspension.

The Supreme Court decided that the intent of the legislature in enacting the underlying law was to punish drivers who had their licenses revoked or suspended for DUI but chose to continue driving in spite of the suspension.  The new ruling is intended to give more teeth to the statute.

This ruling makes it clear that the ever increasing crackdown on DUI offenders is continuing.  Constitutional rights are continually being eroded for DUI defendants in an effort to make it tougher and tougher on anyone who chooses to drive after having an alcoholic beverage, regardless of whether or not that person is under the influence.

On July 7, 2005, the West Virginia Supreme Court of Appeals issued a ruling in the case of Stump v. Johnson in which it determined that no contest pleas in DUI cases would result in the automatic suspension of a driver's license if the DMV hearing process had not already been finalized.  Previously, no contest pleas did not result in an automatic license suspension.

As a result of the Stump v. Johnson ruling, every driver with a pending DUI case in which a no contest plea had been entered, but in which no final DMV order had been entered, lost his or her license without a hearing.  This retroactive application resulted in a large number of appeals being filed against the DMV.

At the end of September, the DMV general counsel issued an internal memo advising that the Johnson case opinion was going to be limited in its application.  Now, only those DUI cases in which a no contest plea was entered after July 8, 2005, are subject to an automatic license suspension.

If you entered a no contest plea prior to July 8, 2005, and your license was suspended without a hearing, you will now get your hearing.  The DMV is supposed to be working right now to determine who was improperly affected by the Johnson ruling.  In order to allow hearings to go forward, the DMV will be sending letters out to all those who were affected and those letters will include new hearing dates.

If you fall into this category, but do not receive notice from the DMV or from your attorney (if you were represented by counsel), call La Neve Law Offices for assistance.  We will help you determine what your rights are and will be willing to assist you in protecting those rights to the fullest extent of the law.

Mr. La Neve and Mr. Glass have returned from a field sobriety testing certification course in San Antonio, Texas.  The course was taught under the standards of the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP) by the company Walden, Platt & Associates. 

Mr. Glass earned his practitioner level certification which means he is now properly trained in administering and interpreting the standardized field sobriety test battery used by law enforcement officers all across West Virginia.  His training puts him on par with every officer who has completed field sobriety training at the West Virginnia State Police Academy as it gives him the same certification.

Mr. La Neve is already certified as an instructor in the NHTSA/ IACP standardized field sobriety test battery and served as an instructor for the Texas course.  The class for this 24 hour course was made up of students from around the country who were lawyers, consultants, and police officers. 

In order to earn certification, students were required to attend 24 hours of classroom sessions, score 80% or higher on a written examination, and demonstrate 100% proficiency in administering the field sobriety tests. 

Part of the course also involved a live alcohol workshop in which Mr. La Neve and another instructor dosed volunteers with known quanities of alcohol to achieve various target blood alcohol levels.  The volunteers were then subjected to the standardized field sobriety test battery by the students for the purpose of giving the students an opportunity to evaluate the volunteers' performance and make determinations as to whether or not they had BACs in excess of the legal limit.

The training gives the attorneys of La Neve Law Offices a better understanding of how to evaluate the arrest process followed by an officer and to more effectively represent our clients.

Courts in Washington state and Virginia have recently ruled that their state's DUI laws were unconstitutional.  As a result, thousands of DUI convictions have been overturned.  These decisions were based on wording in the DUI statutes of those states that creates presumptions of intoxication against a DUI defendant if his or her blood alcohol concentration is above the legal BAC limit, now .08 in all 50 states.

One of the most basic standards of the criminal law is that the government is tasked with the burden of proving every aspect of its case against a citizen beyond a reasonable doubt.  A reasonable doubt is, in its most basic sense, any logical and factually justifiable question as to whether or not something is so.  If the government cannot eliminate every such question at the end of its case against a citizen, the law requires that the citizen be found not guilty.  It is the highest burden of proof in the American justice system - in other words, it's easier to take away a parent's rights to their child than it is to convict them of a crime. 

Unfortunately, in many areas of law, this burden on the government is lessened because the crime is unpopular and constitutional safeguards begin to be eroded.  Such is the case in those states that have laws that create a presumption of guilt against a person whose BAC is .08 or more.

The problem is that the constitution guarantees us the right to be presumed innocent until we are proven guilty.  Presumptions like those created by the DUI statutes in Washington and Virginia take away the presumption of innocence and make the government's job easier.  But those presumptions are squarely against our rights as American citizens.  The government does not have the right to presume our guilt - the founders of our country and the authors of our Constitution started this country and fought a war to be free from such oppression.

Now the battle is closer to home for us.  West Virginia's DUI statute states that in the event a person's BAC is .08 or greater, they are presumed to be intoxicated.  Whle it has never been challenged in West Virginia's courts in the same manner as the challenge that was made in Washington and Virginia, that time may be coming.

The staff of La Neve Law Offices is investigating the issues surrounding such a challenge and is consulting with attorneys from around the US who have been instrumental in this fight.  If there is a valid challenge to be made here, action will be taken.

The West Virginia Division of Motor Vehicles (DMV) is once again quietly changing the rules in West Virginia DUI cases.  Whether your arrest occurred in Wheeling, Morgantown, Fairmont, Clarksburg, Charleston, Huntington, Beckley, Princeton, or Martinsburg (or anywhere else for that matter), the DMV has found a new way to dig into your wallet.

Without any meaningful announcement of its intentions (they didn't even tell their own hearing examiners about the change until AFTER it was in effect), the DMV issued new procedural rules that have changed the length of some license suspensions for the better, but in a way that will add cost and time to the driver in order to have the driver's license reinstated.

Due to the complexity of the scheme, we will be preparing a full analysis and modifying the West Virginia DUI Penalties chart found on the DUI Info page of our site to reflect the new changes.

In short, the driver's license suspension and reinstatement requirements associated with a first offense DUI in West Virginia will remain unchanged.  However, for second or subsequent offenses, the base suspension period is reduced, but all offenders will be required to participate in the alcohol test and lock program (ignition interlock - a device that is attached to your car's ignition that requires you to blow an alcohol-free breath sample in order to start your car).  Previously, participation in this program was optional, but now it appears the DMV will require participation at the expense of the driver.

While there are some positive changes in the new rules, the overall effect is to add one more layer of obgiation to the license reinstatement process and to generate still more revenue from DUI arrests.

Watch our site for more news on this topic and for changes to the DUI Penalties chart.

On October 7 - 9, 2005, Mr. Glass and Mr. La Neve will be traveling to Texas for a Field Sobriety Testing certification course.  Mr. La Neve is already certified by the National Highway Traffic Safety Administration and the International Association of Chiefs of Police as a field sobriety instructor.  He will be co-teaching the seminar to lawyers from around the country with course organizers Troy Walden and Lance Platt of Bryan, Texas.

Mr. Walden and Mr. Platt are Ph.D.s who both wrote doctoral theses on aspects of field sobriety testing.  Both men are former police officers who have rededicated their professional lives to training and testifying as expert witnesses for attorneys handling DUI defense cases around the country.  Both are instructor trainers in field sobriety testing and regularly conduct seminars around the country.  They also provide top-notch services as legal consultants in the area of field sobriety testing, bringing tremendous education and experience to bear for those accused of DUI offenses.

Mr. Glass is attending his first field sobriety certification course and will come away with the same certification as the typical police officer has to give the field tests.  His experience gained in working on field sobriety test issues with clients of La Neve Law Offices will no doubt be a benefit to his training, but having the actual certification training will take his knowledge to a new level.

Be sure to review our information regarding field sobriety testing on this site to gain some insights into these highly subjective and flawed testing procedures.

The West Virginia Board of Law Examiners released results of the July Bar Exam today and La Neve Law Offices is proud to announce that Jason Glass, who has been a law clerk with us for the past year, successfully passed the bar exam.  Jason now only has to be sworn in before the Supreme Court of Appeals of West Virginia to become a full-fledged lawyer.

Congratulations, Jason!

What does a vampire have to do with a DUI information website?  Easy.  That's what some police officers, prosecutors, and magistrates must think they are when they threaten you with a search warrant to get a sample of your blood.

West Virginia law allows for all police agencies to choose one of three tests (called "secondary chemical tests" in the state code) they can require DUI suspects to submit to.  These "designated secondary chemical tests" are tests of either the breath, blood, or urine.  As of this writing, every police agency in West Virginia has designated the breath test as its secondary test.  This test comes in the form of a desktop or tabletop machine called the EC/IR II manufactured by Intoximeters, Inc.

Sometimes, DUI suspects choose not to submit to this test.  While there is absolutely no criminal penalty for refusing the secondary test, there is the possibility that a person who refuses this breath test will lose their driver's license for one year to life, even if they blew into the handheld device the officer offered at the roadside traffic stop.

Once a person has refused the secondary breath test on the EC/IR II, many police officers threaten the DUI suspect with a search warrant that they say allows them to force a blood draw for alcohol concentration testing.  Unfortunately, this is ILLEGAL!!!

The West Virginia Supreme Court ruled, in the case of State v. McLead, that once a person refuses any secondary test (remember, this can be breath, blood, or urine testing), their refusal is deemed final and use or atttempted use of a search warrant is improper.  In the McLead case, Mr. McLead was arrested for DUI, but he refused to submit to the breath test.  The arresting officer told Mr. McLead he was getting a search warrant for a blood draw, so Mr. McLead gave in and allowed the test.  The Supreme Court later threw out the test results and said that Mr. McLead had initially refused the test and that his refusal was final.  Even though he later gave in to the pressure generated by the threat of a search warrant, the Court ruled that his consent was gained through improper influence by the officer.  His unlawful threat to get a search warrant improperly influenced Mr. McLead to consent and the Court said that consent was wrongfully obtained.

With a case like this being so important in DUI law in our state, it would seem logical that no one would still try to do this.  Unfortunately, it does happen and it happens more often than it should.  We have found one West Virginia county in which the prosecuting attorney has given a standing order to all the police agencies that they are to get a warrant any time someone refuses a breath test.  The magistrates in this county routinely grant the search warrants as if the McLead case did not even exist.  We fight the issue every time it comes up and will continue to do so as long as the law supports our position.

If you find yourself in the position of having been arrested for a DUI and have refused the secondary breath test, don't be fooled into submitting to a blood test (or even a urine or breath test) after being threatened with a search warrant.  Tell the officer you refuse to submit to any test and that you want to call a lawyer.  Tell him or her that the State v. McLead case guarantees that your to refuse a secondary test is final.  If they force you to submit, especially to a blood draw, make sure that  you continue to refuse to consent.  Tell the officer, the hospital technician, or other person who may attempt to take your blood sample.  If they take a sample over your objection, we'll help you fight to keep the test results out and then we'll help you sue the police officer, his or her department, and the hospital that performed the blood draw.

Know your rights and use them!

Labor Day weekend is just around the corner - the last chance of the Summer for most people to throw big parties and have an extended weekend.

It's also a time for police to set up sobriety checkpoints around the state.  Before getting behind the wheel of your car, make an honest decision about your ability to safely drive.  If you've had too much to drink, take advantage of other options besides putting yourself and others at risk by driving.  Family, friends, cab service - all good alternatives to driving drunk.

If you decide to drive and find that you're approaching a sobriety checkpoint, remember that you do not have to go through it.  By law, the police must provide "outs" on each side of a checkpoint to allow drivers to avoid the checkpoint if they want.  Passing through a checkpoint is an voluntary action - no one cam make you do it.

However, be alert that police will commonly stake out the "alternate" routes with officers looking for drivers who have obviously avoided the checkpoint.  Even though you didn't drive through the checkpoint, you may still get pulled over and questioned.

Whether you are stopped in a sobriety checkpoint or roadblock, or you are pulled over by police at the side of the road, remember you rights.  If you've been drinking and driving, you are a target for the officers, whether or not you are over the legal limit or affected by the alcohol.  The officer will be using everything possible as evidence against you to try and get a conviction for DUI.

Make sure that if you find yourself as the object of police interrogation for a suspected DUI, you exercise your right to remain silent and to speak with an attorney.  We are available 24/7 by calling TOLL-FREE 866-MY-WV-DUI.

No matter what the officer tells you, you do not have to perform any balance and coordination tests at the roadside (standing on one foot, walking heel-to-toe on a line, etc.) and you do not have to allow the officer to check your eyes.  Most people don't realize that are also allowed to refuse the handheld alcohol breath test.  You CAN refuse the handheld test used to determine your blood alcohol concentration (BAC) and there is NO penalty for doing so.

Once you've made up your mind not to do any roadside tests or the handheld breath test, don't let the officer talk you into doing them later - your right to refuse is absolute and no one can take that from you.

One catch to remember - if you are stopped at a sobriety checkpoint or roadblock, you may be asked to give a breath sample on a large machine that will normally be housed inside a trailer or van.  This is the official breath alcohol test and your refusal to blow could result in suspension of your driver's license as long as the officer had a lawful reason for detaining you and requesting you to submit to the breath test.  There is no criminal penalty for refusing to blow into this second machine, just a possible driver's license suspension penalty.  See our site for more details on the license suspension for refusing to blow.

Have a safe and happy holidy weekend!

Due to web hosting problems, La Neve Law Offices' website has been down for the past week.  We're sorry for the inconvenience.

Please watch for totally redesigned site within the next couple of weeks.

Before you get stopped by a police officer, know what you do and don't have to say.  When the officer's questions go beyond a request for your license, registration, and proof of insurance, you do not have to answer.  In general, citizens are required to provide their name and some form of identification to confirm their identity.  You cannot be lawfully forced to do or say more.

In particular, if an officer starts to question you in a way that makes it clear he or she suspects you may have been drinking or using drugs, you are the subject of a cirminal investigation.  Stop talking and POLITELY advise the officer you will not answer any more questions without a lawyer's advice.  Anything you say to the officer is going to be used as evidence against you, no matter how innocent your comments may seem at the time.  The officer has not stopped you to casually chat about your day - he is looking for evidence he can use to arrest you!

You definitely do not want to discuss where you have been, what you have been doing, or whether you have had any alcoholic drinks.  Even if you have not been drinking, there is no need to discuss your situation with the officer.  Unless he or she has another lawful reason to do so, you cannot be arrested for remaining silent.

If the officer insists on continuing to ask questions, remain firm but polite in your wish to speak with a lawyer before you answer any other questions.  If you have a cell phone or access to another phone, call us, toll-free, at 866-MY-WV-DUI 24 hours a day.  When it is after normal office hours, dial 3 and you will be connected to our emergency callout system - just leave a message and our automated phone system will call us within five minutes and we'll call you back at the number you leave for us. 

Remember, you have the right to remain silent - USE IT!!

The cost of being prosecuted in West Virginia has gone up yet again.  Magistrate Court costs jumped $30.00, from $123.50 to $153.50, effective July 5, 2005.  If you are convicted of, or enter a plea to, a criminal offense, a speeding ticket, or any other violation that lands you in magistrate court, in addition to any fine you may have to pay, you will be charged costs of $153.50.  While costs have always been part of the magistrate court system, they have increased consistently for the last several years to their current high.

Last week, the WV Supreme Court issued a new opinion regarding the connection between DUI convictions and drivers' license suspensions in the case of Stump v. Johnson, No. 32651 (July 7, 2005).

Up until now, individuals charged with a DUI could enter a plea of "no contest" to the DUI charge and still have an administrative license hearing in which they might still be able to keep their license.  However, if the individual had entered a plea of "guilty" or had been found guilty following a trial, their right to a license hearing was automatically taken away and the license was suspended.

For legal procedural purposes, a "no contest" plea still results in a conviction on one's criminal record.  Why?  Because a court cannot sentence someone who is not "convicted" of a crime.  While a no contest plea has always had limitations on its use by others, that limitation has now been eliminated in DUI cases only in the State of West Virginia.

West Virginia Code § 17C-5A-1a states, in part, that "if a person is convicted for [DUI under state code or municipal ordinance], and if the person does not act to appeal the conviction within the [proper time], the person's license . . . shall be revoked or suspended. . ."

Because of the Supreme Court's opinion, a "no contest" plea in DUI cases only is now treated as a conviction for purposes of § 17C-5A-1a.  The result is that one can no longer enter a "no contest" plea and still have a hearing on the license suspension issue.  In effect, unless a non-DUI plea is offered, there is no reason or incentive to accept an offer by the state to plead to the DUI - you might as well go to trial because you won't likely get any worse of a result even if you are found guilty.  The courts of our state are not all prepared to handle what could be such a big increase in jury trials, and the costs to the state could become enormous.  But, as a defendant, your right to trial in a DUI case has likely never been more important.

View the case, Stump v. Johnson, No. 32651 (July 7, 2005), here: http://www.state.wv.us/wvsca/docs/spring05/32651.pdf

And look for more on this subject in the near future.