Articles Posted in DUI

If you have been arrested for DUI in West Virginia, you have the right to demand that a blood, breath, or urine test be taken within the first two hours of the arrest. If the test happens, you also have the right to inspect the specimen independently of any tests performed by the police. As the state’s Supreme Court recently explained, the cops’ failure to make the sample available is a violation of your right to due process under the law.

perscription-drugs-2-1160103-mMs. Divita was charged with driving under the influence of controlled substances, and her license was revoked, after an incident in which she was pulled over while driving on I-64 in Kanawha County. Sgt. O’Bryan, the officer who initiated the traffic stop, later said that he observed Divita’s car swerving and saw her almost hit a guardrail. Divita, however, said she dropped her cell phone while steering the car, which caused her to swerve. O’Bryan ordered Divita to get out of the car after he noticed a plastic baggie with pills in it as Divita was searching her purse for her driver’s license. He said that her speech was slurred and that she seemed confused. O’Bryan placed Divita under arrest after searching her purse and finding 13 alprazolam pills and 15 oxycodone pills.

Divita later failed two field sobriety tests, according to O’Bryan. She also agreed to give a blood sample, which was sent to the West Virginia State Police Lab and tested for alcohol only. O’Bryan said he eventually destroyed the sample, which tested negative, after the conclusion of the criminal case against Divita, but before the administrative proceedings related to the license revocation. A hearing officer later found that the evidence was sufficient to show that Divita was driving while impaired.

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One question that clients often ask us is whether they have the right to refuse a breath or other DUI test if they get pulled over by police. The short answer is yes, but it could cost you. A person who refuses a breath test may be subject to arrest if the officer believes that he or she has been illegally drinking and driving. Once the arrest occurs, a person who declines a secondary test is likely to have his or her license revoked for at least 45 days. The West Virginia Supreme Court recently explained how the state’s “implied consent” law works.

beer-glass-1252046-mMs. Riner was arrested and charged with DUI following an incident in which a Berkeley County Sheriff’s Department officer observed her car cross the center line twice. After pulling Riner’s car over, the officer said he noticed that she smelled of alcohol. An investigating officer who arrived on the scene shortly thereafter said he also smelled alcohol and noticed that Riner’s eyes were bloodshot and that she was speaking quickly. Riner told the officer that she had had one beer before getting behind the wheel, but the cops said she failed a series of field sobriety tests and a preliminary breath test.

Riner declined to submit to a secondary breath, blood, or urine test after being transported to a local jail. She was presented with an implied consent form, according to the Court, which stated that her driver’s license would be revoked for at least 45 days –and up to life – if she declined the test. Riner refused to sign the document, and an officer instead signed his name. The Department of Motor Vehicles eventually revoked Riner’s license for six months for the DUI and for another year for refusing to submit to the blood test.

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State law authorizes the West Virginia Division of Motor Vehicles to revoke a person’s driver’s license for drunk driving or operating a vehicle while impaired by a controlled substance. In order to support a license revocation, the DMV has to provide enough evidence to show that the driver was drunk or under the influence of drugs. That raises a number of tricky issues in cases where the driver is using medication prescribed by a doctor, as a recent case out of the state Supreme Court shows.

light-2-1573545Mr. Starcher was arrested in July 2011, following an incident at a daycare facility where he had dropped off his daughter for a supervised visitation with her mother. Daycare center staff called the police, telling the cops that Starcher was acting erratically and creating a disturbance. Officers who arrived on the scene later said that Starcher’s speech was slurred, he was unsteady on his feet, and his pupils were dilated. An officer administered a number of field sobriety tests, each of which he said Starcher failed. Starcher then informed the officers that he had taken several prescribed medications, including morphine, within a few hours of his driving to the daycare. The West Virginia Division of Motor Vehicles revoked his driver’s license for driving under the influence of controlled substances.

The state Office of Administrative Hearings later rescinded the revocation, however, finding that the DMV didn’t present sufficient evidence to show that Starcher had been driving while impaired. Relying on testimony from Starcher and a letter from his doctor, the hearing officer said Starcher was likely unsteady on his feet and failed the sobriety tests because of a significant back injury that he had been coping with and that his speech appeared slurred because he was upset and typically speaks with a heavy drawl. Even the arresting officer agreed that Starcher’s use of morphine could have been the cause for his dilated pupils. The evidence was not enough, the Court said, to prove that Starcher had ingested enough morphine to be impaired. A circuit court affirmed the decision.

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The statute of limitations and right to a speedy trial are intended to guarantee that a person accused of a crime be charged and given a trial within a reasonable amount of time. As a recent case out of the West Virginia Supreme Court shows, however, they don’t necessarily prevent state prosecutors from slowing down the process.

clock-1196246Mr. Caldwell was charged with DUI after an October 2011 incident in which he crashed his car into a tree. According to state prosecutors, he told emergency medical services workers who arrived on the scene that he’d been drinking before the accident. Police were not able to conduct sobriety tests on Caldwell because the serious injuries that he suffered required him to be flown to a hospital, where he recuperated for about a month. The police chose not to arrest him immediately and instead charged Caldwell with DUI after he left the hospital. He was notified that a warrant had been issued for his arrest during a December 2011 meeting with his probation officer. Caldwell was also hit with unrelated drug charges, his probation was revoked, and he was incarcerated.

Caldwell first appeared in court on the DUI charge in January 2013. The proceedings were delayed a number of times, however, as prosecutors sought to get samples of his blood taken from the out of state hospital where he was treated after the crash. The trial court denied Caldwell’s motion to dismiss the charge in October 2013, and he then entered a conditional guilty plea. Caldwell later appealed the ruling on his motion to dismiss, arguing that the statute of limitations had run and that the delays violated his right to a speedy trial.

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A DUI checkpoint is a planned event in which police officers block off all or a portion of a road and stop some or all drivers as they pass through to check for signs of intoxication. It works effectively as a net of sorts, to scoop up as many drunk drivers as possible in one fell swoop. But is it legal? Well, that depends on a number of factors. The U.S. Constitution limits the police’s ability to randomly stop folks without suspicion, and state laws also govern police operations. Although many police departments have their own rules about checkpoints, a recent West Virginia Supreme Court case shows that the cops may be able to disregard some of those rules if they choose.

driving-at-night-1542327Mr. Pettit was charged with DUI in October 2010 after being stopped at a sobriety checkpoint on Route 60 in Greenbrier County. According to the Court, Pettit admitted that he had been drinking after a police officer noticed that his speech was slurred and his eyes were glassy. He failed a series of field sobriety tests, as well as a preliminary breath test. A second test performed at the police station showed that Pettit’s blood alcohol content was .157, nearly twice the legal limit. The Department of Motor Vehicles later revoked Pettit’s driver’s license.

As the Court later recalled, it turns out that the state police department violated a number of its guidelines for conducting a checkpoint that are published in a police operations manual. Although the police department did publish a notice of the checkpoint in a local newspaper, it didn’t contact the Greenbrier County Prosecutor’s Office to assist in planning the checkpoint. In addition, the cops changed the location of the checkpoint, moving it about three miles closer to town and changing the side of the road on which the checkpoint occurred. The Police Chief later explained that he made the move because the department was shorthanded, and in order to allow officers participating in the checkpoint to respond to other calls if necessary. The chief also acknowledged that the department operated the checkpoint with five officers, rather than the seven cops recommended in the manual.

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West Virginia law gives drivers pulled over by the police a pretty significant incentive to submit to breath and possibly other tests. If you don’t, you could lose your license. There may be certain circumstances in which a driver can legitimately decline to take a test. A recent ruling out of the state Supreme Court, however, is a good example of how restrictive the law is.

light-3-714568-mA South Charleston police officer stopped Mr. Hall’s car one evening in February 2011 after observing it traveling in the wrong direction in the northbound lanes of Montrose Avenue. The officer later said that Hall appeared disoriented and confused and had some trouble finding his driver’s license. When asked to get out of the car, the officer said Hall appeared unsteady on his feet. Hall reportedly told another officer who arrived on the scene that he’d been drinking with his boss. The officers arrested Hall after he performed poorly on one field sobriety test and refused to perform two other tests.

Hall later declined to take breath tests once he arrived at the police station. After declining twice, he said he’d like to give a blood test. He was transferred to a local hospital to have his blood taken. But when the arresting officer tried to submit the sample to the state police laboratory, he was told that the lab wasn’t currently accepting samples. Hall’s blood sample wasn’t submitted for analysis and instead remained at the police department. The DMV revoked Hall’s driver’s license and commercial license for six months for driving under the influence and for one year for refusing the breath test.

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A person charged with DUI in West Virginia faces two separate proceedings – one criminal and the other administrative – that are likely to affect his or her ability to keep driving, not to mention any fines and jail time that the person might face. The proceedings operate separately, but they often become intertwined, as a recent case out of the state Supreme Court shows.

622079_swiss_police_car_1Ms. Shears was arrested and charged with aggravated DUI in March 2013, after she was pulled over and determined to have a blood alcohol content of more than 0.15 percent. That started two separate proceedings: a criminal matter related to the charge and an administrative matter through the state motor vehicles department to determine whether her driver’s license should be suspended or revoked. The DMV revoked Shears’ license for 45 days and required her to get an ignition interlock device, which requires a driver to take a breath test before being able to operate a vehicle, installed in her car for 270 days. The DMV also ordered Shears to participate in a safety and treatment program.

Meanwhile, Shears entered into a plea agreement in the criminal DUI case. Her license was suspended for 15 days as part of the deal, and she agreed to participate in the ignition interlock device program for at least 165 days. Pursuant to West Virginia Code § 17C-5-2b(b), Shears effectively waived her right to appeal the DMV’s decision in an administrative hearing. Nevertheless, Shears filed for a writ of prohibition, arguing that the DMV couldn’t revoke the license and require the ignition device for a longer period than that spelled out in the criminal case plea agreement. A circuit court declined to issue the writ.

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West Virginia DUI cases often come down not to the question of whether a driver was intoxicated at the time of an arrest, but whether the arresting police officer had good reason to pull the car over in the first place. As the state Supreme Court recently explained, police must have “reasonable suspicion” in order to stop a vehicle.

police-car-1093046-m.jpgMr. Littleton was pulled over while driving one evening in August 2010, after a state trooper said he noticed Littleton’s car weaving and swerving and observed that one of the vehicle’s registration lights wasn’t properly illuminated. The trooper later said he noticed a strong smell of alcohol on Littleton, who told the trooper that he’d had a few drinks at the Moose Lodge nearby. Littleton failed three field sobriety tests, according to the trooper, and his blood alcohol content registered above the legal limit of 0.08% on two breathalyzer tests. The DMV later ordered that Littleton’s driver’s license be revoked for 90 days and that he be banned from operating a commercial vehicle for one year.

The Office of Administrative Hearings reversed the decision, however, based largely on the testimony of Ms. Painter, who was a passenger in Littleton’s car on the night in question. Painter said that Littleton had been operating his vehicle in a safe fashion and wasn’t weaving or swerving at the time he was pulled over. Although the trooper told Littleton and Painter that the registration light was dim, Painter said she checked the light and it was properly illuminated.
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In a recent case, West Virginia’s Supreme Court gave some important insight into what kind of and how much evidence is necessary to prove that a person is unlawfully driving under the influence of alcohol.

beer-glass-1252046-m.jpgMr. Hill was arrested and charged with DUI following an incident in which he allegedly nearly crashed into a police cruiser. The deputy involved later testified that he was nearly hit head on by Hill’s vehicle – which the deputy said appeared to be speeding – and had to swerve to avoid the crash. He then turned his car around and stopped Hill’s vehicle. The deputy said he noticed a smell of alcohol coming from the car and from Hill’s breath and that Hill’s eyes were bloodshot and glassy. The deputy also said Hill was a bit unsteady while standing, talked in a continuous and excited manner, and had a slight slur in his speech.

Although Hill admitted that he had been drinking, he said he drove his friend’s car because he was in better shape than the friend to operate the vehicle. He denied being drunk and also said that he wasn’t speeding at the time of the near collision. Hill did, however, admit to driving “close” to the center of the road and said he’d had to swerve to avoid striking the deputy’s car. He failed one of three field sobriety tests, according to the deputy, and registered a blood alcohol concentration of .111% (above the .08% legal limit) in a preliminary breath test. Hill’s BAC was .108% when he took a second test nearly two hours later.
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In West Virginia, it’s against the law to let someone whom you know is drunk or under the influence of drugs to drive your car. Not only are you subject to potential jail time and the loss of your license if you make the mistake of getting behind the wheel while intoxicated, but you can face similar penalties if you hand the keys over to a friend who also shouldn’t be driving. The state’s Supreme Court recently explained the scope of this law.

beer-glass-1252046-m.jpgMr. Uhl was arrested and charged with “knowingly permitting” after an incident in which a police officer pulled over Uhl’s car while Uhl was a passenger in the vehicle. Trooper Phillips was on patrol in Charleston when he said he noticed the vehicle traveling at about 20 miles per hour above the speed limit. He said he noticed the smell of alcohol when he approached the car and observed beer cans inside the vehicle. The trooper also noticed that the driver’s speech was slurred. The driver, who admitted to drinking six or seven beers, then failed a number of field sobriety tests before taking a breathalyzer, which showed that his blood alcohol content was above the legal limit.

The DMV later notified Uhl that it was revoking his driver’s license as a result of the incident. At an administrative hearing that followed, Uhl said that he and two friends had been at the local dog track that day and that he and the driver had been separated most of the time. He said he had been drinking throughout the day and had given the keys to the driver, but he wasn’t sure whether the driver had been drinking. Uhl said he couldn’t recall if he’d seen the driver with a drink in his hand at any point during the day. The Office of Administrative Hearings rescinded the order to revoke Uhl’s license, based on this testimony.
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