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.”

Truck Driver Indicted in Fatal Nicholas County Wreck

From the Beckley Register-Herald:

Truck driver indicted in fatal wreck

Chrissy Boone
Register-Herald Correspondent

SUMMERSVILLE — A grand jury called by a special prosecutor has indicted a Pennsylvania truck driver in connection with an accident in Nicholas County a year ago that killed a Fayette County man.

The grand jury indicted Richard Cyphert, 34, of Knox, Pa., on charges of negligent homicide and failure to maintain control in the Feb. 27, 2007, death of Tommy F. Ramsey Jr., 30, of Edmond, on U.S. 19 near Mount Lookout.

Special prosecutor Tom MacAulay of Raleigh County presented the case to the grand jury. MacAulay was assigned to the case after Ramsey’s family persisted in pursuing charges against Cyphert. Nicholas County Prosecutor Mark Hudnall declined to present the matter to a grand jury, stating he did not believe there was enough evidence to support a conviction.

According to the accident report completed by Nicholas sheriff’s Cpl. Walter Shafer and Deputy Jarod Lane, Ramsey, driving a pickup truck, was following a tractor-trailer driven by his cousin, Eddie Orval Ramsey Jr., 26, of Edmond. Eddie Ramsey’s tractor-trailer had experienced mechanical problems earlier, and both he and his cousin were traveling south on U.S. 19 at about 50 mph with their flashers on.

The accident report said Tommy Ramsey’s pickup truck was then struck in the rear by Cyphert’s tractor-trailer, pushing the pickup into the back of Eddie Ramsey’s tractor-trailer.

The accident report said the roadway was dry and weather conditions were clear. Cyphert was not cited.

Negligent homicide is a misdemeanor that carries a penalty of a year in jail.

Change in WV DUI Laws Passes Committee

From the Beckley Register-Herald:

Panel advances DUI measure with ‘aggravated’ clause

Mannix Porterfield
Register-Herald Reporter

CHARLESTON — Nearly a year in the making, a revision of West Virginia’s drunken driving law that punishes motorists with a blood alcohol content of .15 or higher exited the Senate Finance Committee Tuesday with its blessing.

Another key element seeks to provide counties and cities with relief from regional jail costs by eliminating the mandatory 24-hour term that now results in “double bookings” that cost $48.50 per diem.

A third provision lets first-time offenders choose to install Interlocks to see if they have ingested any alcohol — regardless of BAC — and if any is present, the ignition won’t start.

By electing to use Interlocks, first-time offenders can cut in half the current 30-day license suspension.

For anyone blowing a BAC of at least .15, the crime would be considered “aggravated DUI” and Interlocks would be mandatory. So is a jail term running from two days to six months.

“It’s a very important bill in terms of safety, as well as for courts and municipalities,” said Sen. Dan Foster, D-Kanawha, the key sponsor.

“For me as a physician, safety is the most important part. We’re into the technology age now. We’ve reached the point where we can’t get any farther down in terms of deaths and injuries. This is a start.”

Donna Hawkins, state director of Mothers Against Drunk Driving, spearheaded last year’s interims drive and anchored a special ad hoc committee that worked in tandem with lawmakers.

In 2006, the last year that statistics are available, drunken motorists killed 129 people in West Virginia and were blamed in 2,600 non-fatal injuries.

“This is a historical, landmark piece of legislation for West Virginia,” she said.

“This is going to save lives. It’s going to get offenders back on the road quicker. It’s going to save on regional jail costs. It has a lot of great elements in it.”

While no hard figures were available on potential jail savings, Hawkins pointed out as many as 7,000 first-time offenders are jailed each year.

MADD preferred to see mandatory use of Interlocks for first-time offenders with a BAC of .08 to .149, she said, “but at the same time, there is a great incentive in this legislation for those with low BAC levels.”

Committee counsel advised one panelist, Sen. Jesse Guills, R-Greenbrier, that any vehicle used by a convicted drunken driver must be equipped with the Interlock to stay in the program.

And another member, Sen. Vic Sprouse, R-Kanawha, was told that alcohol in a driver’s system will prompt the Interlock to prevent a vehicle from starting.

“There’s really no tolerance,” Foster said.

Hawkins said her group was pleased to see West Virginia move closer to the “aggravated DUI” law. One provision calls for a 45-day license suspension for such offenders, followed by 270 days on the Interlocks.

“Those are the offenders that are true problem drinkers and cause the majority of fatalities in West Virginia,” she added.