Proposed West Virginia DUI legislation before Judiciary Committee

Today the Senate Judiciary Committee of the West Virginia Legislature is hearing evidence on proposed legislation that would reign in the WV Division of Motor Vehicles and their rampant disregard for the due process of rights of those accused of DUI in West Virginia.  The Charleston Gazette had an article this morning on the hearings.  In West Virginia, DUI charges take two different routes: a criminal action against the defendant personally, and then a civil action against the accused’ driver’s license.  In these civil hearings, there is a notorious lack of fairness and due process rights accorded to the driver.  The proposed legislation attempts to create more fairness in the process.  Though extremely late notice was given regarding today’s hearing, several criminal defense attorneys from around the state who defend DUI’s in West Virginia, have been invited to speak to the committee.  Let’s wish them luck and encourage the Legislature to enact this legislation.  

We should always err on the side of freedom and liberty – and never on the side of tyranny.  Besides, less government is always better….

 – John H. Bryan, West Virginia Attorney.

This Blog Makes Front-Page News…

Note: this post was initially much more extensive.  Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.

It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.

Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election.  And I completely understand the hurt, as I suffered through my father’s election defeat as a college student.  It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight.  Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post.  And so I also understand why the former prosecutor feels the need to protect himself and his family.

This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman.  This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus.  This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before.  This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem.  But, he still didn’t want to lose his job, and he didn’t want to lose his retirement.  That was what Mr. Watson was worried about.  Was he worried about the children on board his reckless DUI school bus?  No, he was worried about himself.  This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).  

When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI.  He was convicted and sent to jail for one year.  There was no accident, no children in the car, no adults in the car – nobody injured whatsoever.  He was just some guy who got pulled over and failed some field sobriety tests.  That was a serious charge.  He was the first person I sent to jail as a prosecutor.  I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs.  Imagine if this man, when he was pulled over, had a child in the car?  Imagine if he had a dozen children in the car.  Imagine if he had a dozen children in the car and drove off a 120 foot cliff.  Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before?  My point is, this is about protecting the children.  We should have made an example of this man.  He was a school bus driver for heavens sake!  The citizens of Monroe County trusted him to drive their children to school and back every day!

I have been on the other side of the coin as well.  As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI.  We begged and pleaded to the judge for a light sentence, since he wanted to join the military.  The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail.  He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday.  He did his time.  He didn’t whine or complain.  He served his debt to society. 

My argument is simply this: did this man not deserve a real punishment?  Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail?  I don’t think so.  It happens all the time in 2nd or 3rd offense DUI cases.  Is it not more egregious for a man to get drunk and then drive a school bus loaded with children?  And then to actually crash off a cliff?

Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.

– John H. Bryan, West Virginia Attorney

Opinion Piece in Register-Herald Regarding Monroe County School Bus DUI

As some of my readers will remember, I was given some flack in the community for speaking out early against this bus driver – Clyde Watson. And as it turns out, Mr. Watson proved himself to be a disgrace after all. The really mind-numbing part of this is, that people in Monroe County love this guy for some reason. It seems he is the “everybody’s favorite uncle” type. The editorial slams Monroe County for the way in which this case was handled.

The editorial places some blame on the prosecutor, and I must now stick up for him with respect to the most-generous plea deal. The previous prosecutor made the plea agreement. No matter how ludicrous the agreement was, it was the current prosecutor’s duty to follow-through with that agreement. It is no different than if he made the agreement himself. So, it was not his fault that the plea agreement was executed.

The paper gave a lot of flack to the magistrate, who gave the guy a 12 day sentence, to be served on the weekends at his leisure. To her credit, she actually increased the sentence from what the previous prosecutor had agreed to recommend – which was 2 days. However, it seems that the guy just walked in and asked to be sentenced quietly – without a lawyer, and without the prosecutor (or any victims) present. The paper did note that the magistrate made a phone call to the prosecutor to make sure that the sentence was okay with him.  Actually, this is pretty much what always happens in misdemeanor cases in magistrate court.

Welcome to the world of magistrate court. The prosecutor is king. The prosecutor wants X, he gets it. The prosecutor wants Y, he gets it. Trust me, I am still waiting on a phone call from a magistrate requesting my blessing for someone’s sentencing. And this is the way things happen. If you are charged with a felony, there is a boatload of paperwork and formal procedure (and legal mumbo-jumbo). But, if you are charged with a misdemeanor, then you are in magistrate court, and things appear, disappear, reappear, and are modified, with not much more than the stroke of a pen or a phone call.  That’s just the way it works.

Observing from the ivory tower is one thing, but in reality, what could have been done differenlty by this prosecutor and this magistrate? About the only thing the prosecutor could have done differently is make sure that the victims were given the opportunity to speak at the sentencing. But then again, that is almost never done in misdemeanor cases.  He could not have recommended or argued for anything more than 2 days.

The magistrate could have reviewed the presentence investigation report (“psir”) prior to the sentencing, and could have scheduled the hearing for a date when the victims and their families could have been there to speak. But in reality, if a psir was prepared, the guy was most likely petitioning for probation, in which case the sentencing should have been in circuit court, where psir’s are regularly prepared and reviewed. Furthermore, this also almost never actually happens in these misdemeanor cases.  Even with felonies in circuit court, this is mostly a formality. The biggest thing of substance that she could have done is to give the guy a larger sentence. How about some real jail time? How about a year in jail? 6 months? How about 30 days of real, actual, jail time? He would have deserved it. But it would have been extremely unusual for a magistrate to stray that far from the recommendations of the prosecutor.  In fact, she already exceeded the prosecutor’s recommendation fourfold….

So if justice was not served in this situation, the Register-Herald can point their finger at the former prosecutor.  But there is no sense in doing that, because he already lost his job, and that probably was partially due to this case.  And nothing positive is served by rubbing salt in his wounds.

Despite the “slap on the wrist,”  Mr. Watson suffered a punishment that is rarely given in misdemeanor offenses: major coverage and castigation in a prominent regional newspaper.  Henceforth, any time someone googles his name, these articles will come up.  It will be difficult for him to ever get past this time in his life…  I don’t know about you, but I would rather do a stint in jail than have your darkest hours broadcasted to the surrounding 5 counties, to live in perpetual existence on the internet.

You can read the full editorial here.

– John H. Bryan, West Virginia Attorney.

Charleston Lawyer Sues WV State Police For DUI Arrest Beating

As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.

Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…

Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Charged With a Crime in WV? Keep Your Mouth Shut and Call a Lawyer…

A troubling trend is emerging in West Virginia. According to my own experience, and to those of some of my colleagues, State agencies, such as ABC (alcohol beverage control commission) are beginning to become actively involved in criminal cases, such as by trying to assist law enforcement in obtaining statements from suspects or defendants.

For instance, if someone who has an alcohol license is charged with a crime, they will suspend the alcohol license in “the interest of public safety.” Then, to get it back, they request a statement of why you are innocent of the charges. Undoubtedly that statement would end up right in the prosecutor’s file and would be used against you at trial. And if you don’t give the statement, your license remains suspended and you lose the income with which you were depending on to pay for your defense. Many times, the crime charged doesn’t have anything to do with selling alcohol or actual safety of the general public, they are just hassling you. And they can. Your only recourse is to request a hearing before the ABC Commissioner, and then to appeal that decision to the Kanawha County Circuit Court, and then to the WV Supreme Court of Appeals. By the time an arbitrary decision is overturned, you have gone out of business.

Something else they have been doing: if someone is charged with a crime involving consuming alcohol – for instance DUI, they will request the persons help in obtaining information on the establishment where the alcohol was bought or consumed. They trick you into believing that by helping them find out information about this establishment, that it will help your case, or that it will remain confidential. In reality, the statement gets forwarded to the investigating officer or prosecutor that same day.

Moral of the story? If you have been charged with a crime, or even investigated regarding a crime, keep you mouth shut and call a lawyer.

– John H. Bryan, West Virginia Attorney.

New West Virginia DUI Law Effective June 6, 2008

I reported on the new West Virginia DUI statute in a previous post, which can be found here. I previously reported that the effective date would be June 1, 2008. From what I have heard from other attorneys, and from the WV Supreme Court, the effective date will actually be June 6, 2008.

This means that if you get arrested for DUI on or after June 6, 2008, then the new law will govern your case.

– John H. Bryan, West Virginia Attorney.

West Virginia Police Conducting DUI Stops Everywhere This Weekend

In case you didn’t know, this is the most popular weekend for police to perform DUI checkpoints. According to the Register-Herald, the Beckley -area police are all ganging up to conduct a “DUI saturation sting.” Of course, nobody wants drunk drivers on our roads. The problem is that this makes it extremely easy for innocent people to get caught in their traps.

Beckley Police Sgt. Paul Blume, director of the program, says extra officers from the Beckley, Mabscott and Sophia police departments, as well as from the Raleigh County Sheriff’s Department and State Police, will be out in full force until 4 a.m. Saturday, concentrating on drunk driving patrols.

Blume said although the heaviest DUI concentration will be tonight there will be extra patrols throughout the holiday weekend. In addition to the DUI patrols, extra officers enforcing the annual Click it or Ticket campaign will be on the roads looking for seatbelt violations. Although Blume says Memorial Day ranks at or near the top of the deadliest holidays of the year, there are things travelers can do to help keep themselves and others safe.

“If you’re going to drink, designate a driver,” he said. “Most people know in advance if they’re going to be consuming alcohol. Be smart enough to designate a driver and have someone else drive you.

That certainly is good advice. The best advice however, is probably to stay home this weekend, if possible. Between the drunk drivers, and the cops looking for drunk drivers, you’ll be lucky to make it home in one piece.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Florida DUI Lawyer: Breath Test Results Vary With Technique

The following article was written by a Florida DUI lawyer about how to, and how not to, undertake a breath test during a DUI stop or arrest – which was forwarded to me by a colleague in Florida. Obviously, I cannot vouch for its scientific accuracy, so take it for what its worth:

“Stop breathalyzer abuse: Seems that they don’t tell you everything whey they tell you to blow into the machine… ”

By Tom Hudson

The last thing I want to do is to tell drunk drivers how to “beat” the Intoxilyzer. But I am tired of seeing the police misuse the Intoxilyzer to beat up on the citizenry. So the following advice is how to get the Intoxilyzer to measure exactly what it’s supposed to measure: Your breath alcohol. And if it does that, you will probably be under the legal limit.

The police are trained to operate the Intoxilyzer. They take a 24 hour course, and are awarded a certificate that says that they are trained to be “breath test operators” under Florida law. I’ve taken that course, and have one of those certificates.

When the police are trained, they are instructed to tell the subject to “keep blowing until the tone stops.” In reality, you cannot keep blowing until the tone stops. Why not? Because the tone doesn’t stop until you are out of breath. It is a trick, to try to get you to blow out your deep lung air. Why are the police taught to do that? It turns out that the last fraction of a second of the breath is all that the Intoxilyzer measures.

Your “vital capacity” is the amount of air you can exhale from a full inward breath until you cannot blow any more. The lungs of a healthy human being have a typical “vital capacity” of around four and a half liters. That’s 4,500 milliliters. The breath chamber of the Intoxilyzer 8000 is approximately 31 milliliters. In other words, the breath machine measures less than the last 1% of your breath. (Actually the last .6%)

They are measuring only the last 1% of your breath!. That would be fine if the last 1% were a representative sample of your breath alcohol.

But it’s not.

The last 1% of your breath contains the highest alcohol concentration of your entire breath. By telling you to blow until you are out of breath, and measuring only the last 1%, the standard instructions for the Intoxilyzer can overestimate your breath alcohol by as much as 400%.


So how do you stop the police from overestimating your breath alcohol? Two steps. Remember this: Three and Two. That’s the number “3” and then the number “2”.

Step One. Take 3 deep breaths before you blow. If you hyperventilate three times before you blow into the machine, you will reduce your breath alcohol by as much as 55%. This occurs for two reasons. First, the breaths cool off your lungs. When the lung tissues are cooler, less alcohol goes from liquid form into vapor. The result is a lower breath alcohol. Second, the breaths clear out the alcohol from your lungs, filling them with fresh air. Find out more in this scholarly article.

(By the way, the reverse is also true. If you hold your breath for a few seconds before you blow, your breath alcohol will be increased. So whatever you do, DON’T HOLD YOUR BREATH before you blow into the machine!!)

Step Two. Blow out HALF of your breath and STOP. Half of a breath is all that you need to give a valid sample under the Florida protocols. The Intoxilyzer 8000 requires only 1.1 liters of breath to register as “adequate volume.” Blowing the minimum required can reduce your measurement by another 30%. How does it do that? By avoiding that alcohol-saturated “deep lung air” that the police are trained to test. The statutes do not tell them to test “deep lung air.” The statutes tell them to test “breath.” So why do they test “deep lung air” instead? Because that’s where the most alcohol is! It is a fraud, plain and simple!

So….. does this work?

I have personally, after a few drinks (all in the name of science, mind you) blown into an Intoxilyzer and obtained a reading of .099. That is over the legal limit. About three minutes later, I took my own advice and blew into the Intoxilyzer after three deep breaths. And blew only half of my breath. The result? A breath test reading of .028.

There you have it. The 3-2 Rule. You can blow an adequate sample under Florida law, and not allow the police to skew your sample so it looks higher than it really is. Sometimes blowing smart is a lot better than refusing to blow at all.

But even with all of this knowledge, the best way to avoid a DUI is not to drink and drive. Period.”

– John H. Bryan, West Virginia Attorney.

Nicholas County Prosecuting Attorney Charged With DUI


From the Charleston Gazette today:

Nicholas County’s prosecuting attorney was charged with DUI on Sunday after wrecking his car in a single vehicle accident in Webster County. Mark Hudnall was elected Nicholas County prosecutor in 2004 by a narrow margin over James “P.K.” Milam. He is running for re-election this year, and faces Milam and Keith W. McMillion in the Democratic primary next month.

What a poor decision to make generally, but on the eve of an election? Being the elected prosecutor of a county, and charged with the duty to prosecute individuals for violations of the law, including DUI, he ought to make a public comment in the next day or so – either apologizing or proclaiming his absolute innocence (in which case it better be the truth). In any event, what a lucky break for his Democratic opponent.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Change in WV DUI Laws, Effective June 1

From the Register-Herald:

Drunk drivers with .15+ BAC to face harsher penalties June 1

Law also erases mandatory 24-hour lockup, can reduce license suspension to 15 days

By Mannix Porterfield
Register-Herald Reporter

A year-long movement to punish drunken motorists with a blood alcohol content of .15 or higher with harsher penalties and encourage others to use an Interlock before they can start a vehicle becomes law in June.

Gov. Joe Manchin made it official Tuesday by signing SB535, the result of an intense research and lobbying effort by Mothers Against Drunk Drivers in West Virginia.

With West Virginia’s passage of the revised DUI statute, only 11 states are without a law that creates the “aggravated” crime of operating a motor vehicle with a BAC of .15 or higher.

Another feature allows first-time offenders blowing a BAC of less than that level to have their licenses reinstated in 15 days, in lieu of the standard 30-day suspension, provided they install an Interlock, a device that prevents an ignition from starting if alcohol is detected when the driver blows into it.

A third element erases the mandatory 24-hour lockup for those with a BAC under .15, thus saving cities and counties some money on inmates sent to regional jails.

“We are very happy to see this finally come to fruition,” MADD’s state director, Donna Hawkins, said Tuesday after Manchin’s decision was announced.

“Very much so. I think it’s going to save lives. It’s definitely going to be a very positive law for West Virginia.”

In the House of Delegates, all provisions were retained, except for one in the Senate version that called for mandatory BAC tests on suspected drunken drivers in accidents that result in deaths or serious injuries.

Sen. Dan Foster, D-Kanawha, a Charleston surgeon and the chief sponsor of the Senate version, had no difficulties accepting this single change in his proposal.

For aggravated DUI, the mandatory penalty calls for two days to six months in jail. Hawkins said her group wanted to focus on this key provision in going after motorists with higher blood alcohol levels since they are responsible for the most carnage.

Two years ago, the most recent one for which statistics are available, drunken drivers caused 129 deaths and were blamed in accidents causing 2,600 non-fatal injuries.

Hawkins said the movement led chiefly by MADD began across the nation about a decade ago to crack down on motorists in an aggravated DUI category.

For most of last year, Hawkins personally led a series of meetings as director of an ad hoc committee of lawmakers, prosecutors, police officials and the Division of Motor Vehicles, working in tandem with a legislative interims panel.

“There were a lot of meetings, a lot of hours,” she said.

MADD was a chief proponent in lowering the BAC from the old standard of .10 to .08 to be declared intoxicated.

Manchin plans to conduct a ceremony April 10 with MADD officials, including its national director, Glynn Birch, and Hawkins.

In advance of the bill formally becoming law, Hawkins plans to tour the state to meet with law enforcement and DMV officials, raising public awareness about it and demonstrating how the Interlocks work.

“We’re going into different communities and talk about this new law and what it’s going to do,” she said.

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