From today’s Beckley Register-Herald:
Bus driver’s medical condition probed
Prosecutors say they are investigating a possible medical condition with a Monroe County school bus driver charged with DUI following a bus crash involving 11 children Tuesday.
A well known Charleston DUI defense lawyer also said the bus driver should never have been charged with DUI because his preliminary breath test proved he was not intoxicated.
Monroe Prosecutor Rod Mohler told the Register-Herald on Thursday the case against Clyde Watson, Jr., 62, of Union, was moving forward with “extreme caution” because of the accident.
State Police arrested Watson and charged him with DUI while transporting minors. Watson’s bus crashed down a 120-foot ravine with 11 children aboard about 7:20 a.m. near the Monroe-Greenbrier county line. There were no injuries were reported.
“What little we know is at this point there was a trace level of alcohol in his system,” Mohler said Thursday. “Even at that low level, you can still be considered under the influence. However, there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.”
Watson was administered a preliminary breath test by a Greenbrier County sheriff’s deputy which found a .022 level of alcohol in his body.
Mohler said the case would be “explored fully and completely” to determine whether Watson was “criminally responsible regardless of his condition.”
A phone listing for Watson could not be found Thursday.
Watson told police he had taken Nyquil, which contains alcohol, the night before and felt “funny” just before the accident.
School officials said Watson previously had a spotless 14-year safety record as a bus driver. Superintendent Lyn Guy said Watson was suspended from his job pending the resolution of the DUI charge.
Although .08 is considered the legal limit for driving under the influence, State Police Trooper J.L. Cooper said a person can be charged with DUI for much lower levels if alcohol impairs the ability to drive.
“You have to justify that the alcohol limit caused the impairment,” Cooper said.
Barbara Allen, a deputy with the state attorney general’s office, said any driver with an “appreciable measure of alcohol” can be charged with DUI.
“Once a driver’s alcohol level reaches .08, you are presumed to be under the influence,” Allen said Thursday. “If the level of alcohol is below that, you can still be found guilty if a jury concludes based on all the facts and circumstances that your ability to drive was impaired because you were under the influence of alcohol.”
But the question remains whether Watson’s reported .022 alcohol level is enough to justify a DUI conviction, Charleston lawyer Carter Zerbe said, and whether Watson was under the influence at all the morning of the accident.
“The .022 level is so low that it is evidence in and of itself that the bus driver was not under the influence of alcohol,” Zerbe, who is among the state’s top DUI defense lawyers, said Thursday. “I don’t know what basis there was for charging this bus driver for violating that section of the law.”
Zerbe said preliminary tests are not admissible as evidence at trial. In Watson’s case, a second, more reliable test was not given because too much time had elapsed from the first breath test, according to the criminal complaint.
However, hospital records containing Watson’s blood tests are being subpoenaed to determine what levels, if any, there were of alcohol in his system, police said Wednesday.
“If the initial breath test was .022 and if it was accurate,” Zerbe said, “I would imagine the blood test will be exculpatory.”
A hearing in the case is expected to be scheduled next week. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.
Note: The first time I read the article, I thought it said he had a .22 BAC – which is common in black-out type situations. Upon reading the updated article and re-reading the prior article, I noticed that it said “.022.” Having formerly prosecuted DUI’s in North Carolina (actually they are called DWI’s) I agree with Mr. Watson’s lawyer that there is no way this man can be charged. First of all, since he is a bus driver, he could be charged if he registered a .04 BAC. However, the preliminary field sobriety test is not admissible in court, so he could not be convicted even if the field test read over a .04 – which it didn’t. They would have to have an intoxilyzer result that is admissible – which doesn’t exist in this case. Lastly, it would not be fair to put this man before a jury when the only evidence of intoxication is the accident itself. – John H. Bryan, West Virginia criminal defense attorney.
See UPDATE here.