In the name of “officer safety”

Rick Horowitz from Probable Cause had an interesting post regarding “officer safety” and the rights of motorists.  In essence, his theory, which has long been a pet peeve of mine, is that supposed “officer safety” is used to violate the rights of motorists.  If you have ever tried an “obstruction” case, you will hear the prosecutor ask officers who conducted a “traffic” stop questions about their training and “officer safety” and why they instruct persons to get out of the vehicle – or to not get out of the vehicle – or to put their hands in a certain place, and so on and so forth.  Many times this coincidentally coincides with the officer(s) subsequently finding something incriminating in the vehicle.  For example, here is a portion of transcript from an obstruction (among other things) trial:

7       Q   So you turned on your blue lights; right?           

8       A   Yes.                                                

9       Q   And the purpose of doing that is to tell the driver 

10  of the vehicle what?                                         

11       A   To pull over.                                       

12       Q   And, was it clear to you, that there was a driver   

13  of that truck, with the Florida tags; you should see the     

14  driver?                                                      

15       A   Yes.                                                

16       Q   Did you attend the State Police Academy before      

17  becoming a West Virginia State Trooper?                      

18       A   Yes.  All troopers are required to attend the       

19  Academy before —                                            

20       Q   And how long — how long is the Academy?            

21       A   It’s going to be for 30 weeks, equivalent to seven  

22  months.                                                      

23       Q   And, as part of your training, do you receive       

24  specific training in traffic stops?                          

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1       A   Yes, we do.  Like a lot if training, they try to go 

2  over and over.  What the purpose of that is – they call it   

3  muscle memory – when you get into a high-stress situation,   

4  or your stress level elevates, whatever you practice, their  

5  theory is that you’ll just automatically — you’ll           

6  automatically do in a high-stress situation.                 

7       Q   And from your training, and experience as a West    

8  Virginia State Trooper, are traffic stops considered high-   

9  stress situations?                                           

10       A   Yes.  Through the training that we received,        

11  everything other than a known felony stop, we actually       

12  consider an unknown stop, which is an unknown risk.  Mainly  

13  because we don’t know the driver, we don’t know who’s in the 

14  vehicle or what’s in the vehicle.  So, yes, they all — all  

15  of them are considered high-stress and possible risk stops.  

16       Q   And, from your training at the Academy, and then    

17  after you were out of the Academy, were you taught, and      

18  trained, in what percentage of police officers — shootings  

19  of police officers occur during what should be routine       

20  traffic stops?                                               

21       A   Yes.  It’s actually a higher percent than I like.   

22  Actually, I believe the US Supreme Court had a case on it,   

23  referenced where up to 30 percent of actual police shootings 

24  occurred during routine police traffic stops.                

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1       Q   Now, as a practicing Trooper, can you estimate how  

2  many traffic stops you have made a month, at this point?     

3       A   And I don’t do a lot of traffic, some’s a lot       

4  higher than this, but I usually pull over, I would say,      

5  between 25 to 35 cars a month, for various traffic reasons.  

6       Q   And when you make those traffic stops, do you       

7  follow the procedures that you were taught in your training  

8  at the West Virginia State Police Academy?                   

9       A   Yes, ma’am, every time.                             

10       Q   As to the particular procedures that you were       

11  taught, what is the goal, what’s the purpose of those        

12  procedures that you are to follow in making a traffic stop,  

13  as a State Policeman?                                        

14       A   The main thing is, basically, risk reduction, for   

15  the safety of everybody there.                               

16       Q   And does that include safety of the officer?        

17       A   That includes the safety of the officer, safety of  

18  whoever we’re pulling over in the vehicle, along with the    

19  public safety.                                               

20       Q   And what are the risk factors in the traffic stop,  

21  that your procedures are designed to reduce?                 

22       A   With that, especially, and probably most of you can 

23  relate to seeing videos of being beside the roadway.  First  

24  off, it’s very dangerous for traffic stops, for other        

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1  traffic coming by, just ’cause you’re in such close proximity 

2  to the traffic flow; that, in one, is dangerous.             

3       Two, like I said, you don’t never know who the driver   

4  is, or who you’re pulling over.  Mainly, if you’re doing a   

5  traffic stop – and, mostly, I’m going to give somebody a     

6  warning, but the driver don’t know that – and if it’s        

7  somebody else, it could be very dangerous.  Or, if they      

8  robbed a bank, thirty minutes down the road, and I’m unaware 

9  of that, they might have a gun, or something that could      

10  actually hinder myself during this stop, which I’m unaware   

11  of.                                                          

12       Q   And what about the flight risk; could you explain   

13  to the jurors the risk of flight when you have an unknown    

14  traffic stop?                                                

15       A   Yes.  And it is highly likely that, you know, even  

16  when I get out of the vehicle, that the car might pull off.  

17  Several occasions, you go to approach the vehicle and        

18  somebody – I mean, I’m sure you’ve seen it on TV – jumps out 

19  of the vehicle and takes off running.  So — and if I        

20  actually approach the vehicle and, let’s say, they are       

21  wanting to cause me harm, and they are able to do some kind  

22  of harm from me, it’s very possible for them just to take    

23  off without any help to myself.                              

24       Q   When you pull over the vehicle, either because it   

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1  — the driver is a suspect in a crime, or because of a       

2  traffic violation, when you pull over a vehicle, is there    

3  information that you are supposed to relay, and also         

4  information that, by your training and experience as a West  

5  Virginia State Trooper, you are supposed to be receiving?    

6       A   Yes, ma’am.  The start off, every time we perform a 

7  traffic stop, we always want to notify our dispatcher —     

8  advise ’em of our location, that we’re actually on a traffic 

9  stop, so they can check on us and know what we’re doing.     

10  Some information you want to give to start off with is color 

11  of the vehicle, like I said, the location of where the stop  

12  is.  And also important, is the license plate of the         

13  vehicle.  With the license plate, they’re able to return the 

14  vehicle it’s supposed to be on, who owns the vehicle.  And   

15  they also can check to see if that license plate or vehicle  

16  has been stolen, or is a stolen vehicle.                     

17       Q   And do you do that, as much as possible, unless you 

18  are obstructed or prevented from doing that, every time you  

19  make a traffic stop?                                         

20       A   Yes, ma’am.                                         

21       Q   Now, do you — are there standard procedures, that  

22  you learned in your training, and you practice in your 25 to 

23  30 traffic stops a month, first of all, as to whether or not 

24  you want the driver to stay in the vehicle, or get out of    

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1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

24  somebody might be able to put my connection with that        Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

 

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1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       

Page 365 

1       A   If a driver gets out of the vehicle, and he’s not   

2  replying, of course, the stress level and the threat level   

3  increases, first because he’s not obeying my order, which is 

4  a lawful order.  Second, with the hands, I don’t want ’em    

5  anywhere near the coats or pockets, where they could reach   

6  — or anything that might cause me harm.  Either up in the   

7  air where I can see ’em, up on the vehicle where I know he   

8  can’t reach and grab anything to — that might harm myself   

9  or any public.                                               

10       Q   Was there a phrase that you were taught, that your  

11  instructors at the Academy used, to emphasize the need to    

12  keep the suspect hands up in the air or on a car?            

13       DEFENSE ATTORNEY:  Your Honor, I’m going to object to    

14  the leading nature of this —                                

15       THE COURT:  Overruled; 611 allows me to permit this     

16  type of preliminary stuff.  I’m going to allow it; go ahead. 

17       THE WITNESS:  Yes, as the — as the instruction — in   

18  the Academy, they often teach us, they always tell us that   

19  feet can hurt you, but hands can kill you.  Basically,       

20  meaning just, you know, being kicked and stuff can hurt you, 

21  but the hands can always grab a weapon such as a knife or a  

22  firearm.                                                     

23  PROSECUTOR (resuming):                                    

24       Q   Now, on the evening of June 8th of ’07, after you   

Page 366 

1  turned on your blue lights, can you tell the jury what did   

2  the defendant do?    

As I said, this has long been a pet peeve of mine.  Of course we all respect law enforcement officers and acknowledge that they have a sometimes dangerous and difficult job – just like many other professions.  However, they chose to be law enforcement officers.  And they chose to pull someone over for a “traffic” violation.  That they are worried, or trained to be worried, about their own safety, should not make it okay for them to treat someone like a criminal.  It’s one thing if you are pulling over a bank robbery suspect, but if you are pulling someone over for going 6 mph over the limit, you should not have your hand on your gun.  You should not shout at someone as if they are armed and dangerous.  Why should someone pulled over for a traffic violation have to keep their hands on the wheel?  What can be more demeaning that to be treated like a criminal as a practice and procedure of a law enforcement agency?  I would venture to say that more people are probably wrongly shot by law enforcement officers because they are jumpy due to all of this “training” than law enforcement officers who are actually shot by a traffic-stop motorist (especially in high crime areas where “traffic” stops are mostly investigatory pretext stops).  Don’t believe me?  Google it.  And surely, more officers are hit by passing motorists distracted by the emergency lights than who are shot.  And that is unfortunate, but it was their choice to engage in a profession where they have to stand on the side of the road and encounter strangers in cars.  That is just a risk that comes with the job.  It is not okay to feel safer by violating the rights and respect of innocent persons.

And it definitely is not okay to abuse the purpose of “officer safety” in order to assist in more efficient criminal prosecution, which is done in mainly two ways, such as was the case in the above-transcripted case: (1) to achieve an initial arrest of the person in order to question them and inventory/search their vehicle, and (2) to throw in yet another charge to try the suspect on and/or use for plea negotiations.  

Note: the defendant in the above-transcripted case was found not guilty of obstruction, despite the lengthy oratory of the prosecutor and trooper.

 – John H. Bryan, West Virginia Attorney.

West Virginia Roads are Dangerous and Worthy of Speed Limit Enforcement

I posted to the West Virginia Car Accident Law Blog yesterday regarding a study that just came out yesterday:

There was a report just released from the federal government indicating that younger drivers are more likely to die on West Virginia roads than anywhere else in the country. According to an article on WSAZ.com, statistics show that West Virginia’s death rate among younger drivers was 70 percent higher than the national average. Thirty six West Virginians between the ages of 16 and 20 died in crashes in 2006.

The article notes that “experts say traffic fatalities are twice as high in rural areas where drivers are more likely to speed and less likely to wear seat belts.”

I think those are two factors involved, but not the only ones. A reporter called me today and asked me what I thought were the main reasons for this problem. I responded that I think that younger drivers are reckless drivers no matter what state you are in. But when you put them on windy, mountain roads with no enforcement of the speed limit, you are asking for disaster. And that is my theory at least, about why the young fatalities are so high on West Virginia roads. But certainly the advent of new cell phone technologies and their 24/7 usage by younger persons is playing a part as well.

This is an issue that I am passionate about. Growing up in Florida, where nearly all roads are straight, I always felt that the police, when giving tickets, were more interested in harassing people – or making money for local entities – than they were in “serving and protecting.” But here in West Virginia, I the situation is the opposite. Law enforcement can’t be bothered to pull people over for merely speeding. They are too busy showing up to domestic disturbances and what-not. But anyone who drives on these roads can tell you what it feels like to approach a blind curve in the road and see a maniac tractor trailer driver halfway into your lane and speeding. They do this because they absolutely do not fear speed limit enforcement.

Law enforcement are understaffed, but like I told this reporter, they are also under-motived in that their superiors have no incentive to require them to make traffic stops. Very, very little of the total amount paid for traffic tickets in West Virginia go to the political subdivision where the ticket is given. It literally is not worth it to the county or city.

Almost all of the troubles that cities and counties have in paying for law enforcement could be alleviated by ticketing speeding and reckless drivers consistently, and then funneling most of the money into the county or city operating budget. This could bring other problems, such as notorious speed-traps, but that is a sacrifice I would be willing to make in order to save lives.

And for the tractor trailer drivers and companies who selfishly speed through our communities: they should be made to pay big. And I mean big. If they are speeding on our roads here in West Virginia, we should figuratively filet them with a “ginzu” knife. The fines should be so high that they will never, ever forget to obey the speed limit in our state.

– John H. Bryan, West Virginia Attorney

Common-sense Sentencing

This morning I witnessed the sentencing of a young man who, by driving drunk, killed his two best friends who were passengers in the vehicle he was driving. He cried remorsefully to the judge, and then both mothers of his deceased friends spoke to the court. They both pleaded with the judge to be lenient, and to give him community service in lieu of an active jail or prison sentence. One of the mothers suggested that he be required to talk with high school kids in the area about the dangers of drunk driving. There were a lot of tears all around, and it was quite moving to witness this.

In the end, the judge gave him about 2 1/2 years and suspended the sentence, giving him 2 years probation and 200 hours community service. As part of the community service, the judge implemented the suggestion of one of the grieving mothers, that he speak to high school kids about the dangers of drunk driving. Most defendants in this situation have the book thrown at them, and indeed they deserve it for robbing the lives of others because of their own foolish selfishness. But in this case, you could see that the kid was really suffering for what he had done. And the mother’s had lost everything, and this was closure to them. This young man was the best friend to both of their sons. To send him to prison or jail would not have helped anybody. Hopefully he will have an impact on some young kid sitting in a classroom, and a future tragedy will be prevented.

– 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%.

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

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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.

— E-mail: mannix@register-herald.com

Monroe County School Bus Driver BAC was .093

From today’s Register-Herald:

Prosecutor: Bus driver’s alcohol level was higher than field test showed

— MONROE COUNTY

By Christian Giggenbach
Register-Herald Reporter

UNION — Medical tests have revealed the blood alcohol level of a Monroe County school bus driver charged with DUI following an accident in February was considerably higher than his preliminary on-scene breath test, a prosecutor said Tuesday.

Clyde Watson Jr., 62, of Union, appeared briefly before Monroe County Magistrate Nancy Crews for a pre-trial hearing and was represented by Gap Mills lawyer Geoffrey Wilcher.

State Police charged the 14-year veteran school bus driver with DUI with minors in a vehicle after he crashed his school bus down a 120-foot ravine with 11 children aboard on Feb. 5.

School officials said Watson over-corrected his steering after running off the right side of the road and then slammed through a telephone pole before plunging down the ravine and finally coming to rest over a small creek. No children were injured in the accident.

County Prosecutor Rod Mohler told Crews a “plea agreement has been offered” to Watson which allows the defendant to plead guilty “as charged.”

“Based on Mr. Watson’s years of community service, the state will not object and would be willing to agree to the minimum sentence and fine,” Mohler said. “I think Mr. Watson wants to take some additional time to think over what has been offered and the state will not object.”

Two days after the accident, Watson apologized for his actions in a letter to the school board and also tendered his resignation. In the letter, Watson said he had “hit rock bottom” the morning of the accident and had “an ongoing alcohol problem.”

Mohler’s case against Watson was strengthened greatly after the defendant’s blood test showed a .093 BAC level nearly two hours after the accident.

A preliminary breath test at the scene indicated a relatively low level of alcohol, about .022. Preliminary tests cannot be used as evidence in a trial. However, a blood test can be used as evidence and Watson’s new BAC is higher than the state’s .08 legal limit. After a person’s BAC level reaches .08, a driver is “presumed to be impaired” under West Virginia law. A state CDL regulation requires drivers to be under .04.

Watson did not speak and quickly exited through the back door of the magistrate’s office with family members after the five-minute hearing.

Mohler called the new BAC reading “substantial” and said it puts to rest other issues that previously were raised concerning the accident. At the time of his arrest, Watson told police he had taken the cold medicine Nyquil, which contains alcohol, the night before the accident. Mohler had previously indicated the defendant may also have been diabetic.

“This also takes any health issues out of the picture as the cause of the accident,” Mohler told The Register-Herald after the hearing.

Crews tentatively scheduled another hearing in 30 days. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

— E-mail: cgiggenbach@register-herald.com

Upcoming House Vote on Amended DUI Bill

From the Beckley Register-Herald:

House geared to vote on amended DUI bill

Mannix Porterfield
Register-Herald Reporter

CHARLESTON — A proposed update in West Virginia’s drunken driving law exited a key House panel with one alteration that proponents say is acceptable.

Omitted was a provision in the Senate version that would have mandated blood alcohol tests of any motorist suspected of being drunk after a fatal highway accident.

Donna Hawkins, head of Mothers Against Drunk Driving in West Virginia who spearheaded the legislation, wanted to see the Senate bill left intact.

But Hawkins said Wednesday she was assured by House Judiciary Chairwoman Carrie Webster, D-Kanawha, that she would draft a bill for the 2009 session to deal with such testing.

A House vote on the revised bill is expected Friday.

“I have no problem with it,” Sen. Dan Foster, D-Kanawha, said.

Foster was pleased the House panel didn’t tamper with the major components, led by a new offense of “aggravated DUI” for motorists with a BAC of .15 or above. For them, Interlocks attached to vehicles to test a driver’s breath for alcohol would be mandatory.

First-time offenders would have the option of using Interlocks, and the incentive built in the measure would cut in half their license suspension from the existing 30-day period.

A third key element eliminates the mandatory 24-hour lockup for first-time offenders with a BAC of .08 to .149 as a cost-cutting step for counties, many of which are struggling to pay regional jail costs.

Existing practice allows counties to be charged the per diem rate of $48.50 (due to be cut by 97 cents in July) twice since an offender can be jailed a few hours, then returned after going before a magistrate.

Jail costs are swallowing up much of some county budgets. Last year, for instance, Raleigh County was billed more than $2.5 million for keeping inmates at Southern Regional Jail.

“The main points of our legislation are in there,” said Foster, who worked closely most of last year with an ad hoc committee anchored by Hawkins while lawmakers prepared a bill in tandem during the interims.

“I’m convinced it will save lives. And also, it will save resources for the state as well. It’s a good combination.”