Anti Texting and Driving Ban Legislation
A form of the proposed anti texting and driving ban passed the West Virginia House of Delegates. A few days ago I posted about the West Virginia texting and driving laws on the West Virginia Car Accident Law Blog, noting that this legislation was coming up for a vote. It still has to pass the senate. It only allows for officers to cite motorists for texting and driving as a “secondary” offense rather than a “primary” offense. This means that cops cannot pull someone over just because they see someone texting and driving. There has to be some primary infraction or other reason to make the stop. Only then can the person be ticketed for texting and driving.
Honestly, even if it was a primary offense under the statute, it wouldn’t stop anybody. Who is going to be texting with a police cruiser right next to them? Most idiots who do this aren’t that stupid. The best enforcement for the texting and driving problem is civil trial attorneys who sue persons who injure others due to texting and driving. We can easily find out if someone had been texting at the time of, or immediately before, the collision.
See Charleston Gazette article today on the legislation.
A WV Criminal Defense Attorney’s advice on how not to handle a traffic stop
Sometimes I give out free advice, such as my lecture on keeping one’s mouth shut. Here is another. At some point in your life you are going to be pulled over by a cop who treats you like crap. He will either be really young, or will be older and act like a Marine drill sergeant. He will talk down to you. He will talk really loudly. He may ask you personal questions. You may feel provoked to run your mouth, or to insert a snide comment.
Although he may deserve it, do not say what you want to say. Do not ask for his badge number (you can find that out after the fact if necessary – his identity will almost never be a mystery). Do not ask for a supervisor. Just say, “yes sir” and be polite and cooperative – even if he is not. And then drive off as soon as he lets you.
Chances are, if he is being a jerk to you, he is capable of arresting you illegally. They can arrest you for obstruction and/or resisting arrest merely by claiming that you refused to obey his lawful orders. Then it is up to you after-the-fact to try and fight your way out of it. Worse yet, maybe he says you took a swing at him. Then you get charged with assault or battery on an officer. It’s your word versus his, and his dash cam was conveniently inoperable. At the very best you end up having to pay a criminal defense attorney to get you out of the mess, and a year later, get it expunged. At worse, you end up at trial, and potentially get convicted. Then maybe you appeal, etc. It all could have been avoided.
Of course, if you have already done this and now have to pay huge sums of money to a West Virginia criminal defense attorney, it might as well be me (1-888-54-JBLAW – available statewide [shameless plug]).
Prosecuted in retaliation for videotaping police misconduct
ABC News ran a story on the growing number of prosecutions for private citizens videotaping police misconduct. The main story highlighted in the article was a guy who had a helmet mounted video camera, which taped a plain-clothes police officer swerving in front of the motorcyclist, slamming on his brakes, and jumping out with his gun in hand.
Was the officer disciplined for this act of cowboyism? I don’t think so. Instead the motorcyclist is being prosecuted for videotaping the officer without his consent. The state police in Maryland actually busted into the guy’s house, searched it, and confiscated his computer and hard drive, and then indicted him for a felony violation of Maryland’s wiretapping laws.
Okay, arrest the guy for reckless driving. I don’t have any problem with that. But give me a break. This is a bunch of garbage. Our only means of protecting ourselves from cowboy cops is the video camera. Almost every police prosecution that you see was forced due to the cop’s actions being caught on tape. The cops know this, and they try their best to keep citizens from filming them. The newspapers are full of people being arrested for “obstruction” or whatever, for filming cops.
The motorcyclist had a camera on his helmet. He didn’t know that this cowboy was going to jump out at him waving his gun. I am assuming cops in Maryland have dash mounted video cameras (although I am sure they are not on when it suits them not to be on). Does that mean that every cop in Maryland with a dash cam is guilty of felony violations of Maryland wiretapping laws? Don’t hold your breath for those prosecutions.
Obviously there is a double standard out there. And people are getting tired of it. I had a client who videotaped police shooting tear gas through his windows and them busting in with gas masks, AR-15,s and taser guns, then tasing him, and probably ended with them dragging him out of the picture. What happened to the video? It was confiscated by the police and never returned. When I was finally able to see it, it conveniently “ended” before the gas grenades were shot into the house.
Gestapo tactics. The ironic thing is, you see this sort of stuff from cops in suburbia, or other areas where there is very little real crime. Just ask a real cop who has worked in the trenches – NYPD, LAPD, Charlotte PD, Atlanta PD, who deal with all sorts of crap and scumbags – they rarely engage in cowboyism, they have enough to worry about.
New West Virginia Search and Seizure Statute
New legislation has been passed in West Virginia dealing with search and seizure. It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded. But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.
It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle. This, by the way, is pretty much the foundation for 80% of criminal prosecutions. Either people are too dumb/ignorant/naive to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not. Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?
Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording. It must be communicated to the suspect that he or she has the right to refuse the search. It also provides that he or she can revoke their consent at any time. Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio. The one exception for the recordation of consent is if there is an issue of officer safety. Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.
Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here. However, states are not free to provide less protection. Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.
The statute will take effect January 11, 2011.
Here is the statute:
A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:
ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.
(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.
§62-1A-11. Rules for certain evidence of consent to vehicle search.
(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.
NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.
§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.
It’s not our fault…. Civil Liability of West Virginia Police Officers/Departments in Pursuit Situations
In this morning’s Beckley Register-Herald, there was an article about a West Virginia State Police pursuit involving an ATV. Apparently there was undisputedly a pursuit of an officer in a cruiser, chasing a man on an ATV. Also undisputed, at some point the ATV wrecked and the man was killed. Where the issue lies is, did the wreck occur during the pursuit, or had the officer abandoned the pursuit, after which the man wrecked on down the road? And could the West Virginia State Police be liable for a man fleeing on an ATV only to accidentally kill himself in the process?
The important fact is that the driver of the ATV was killed. He had apparently stolen the vehicle, and thus had fled. The end result is that this case is much, much different from a scenario in which a passenger on the ATV was killed, or some other potentially innocent third party. I’m not going to comment on whether I think there is a case there or not for the deceased’ driver’s estate, but here is some helpful information for cases where the facts are slightly different:
This is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia earlier this year which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia. This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:
Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party. It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).
As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct. However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.” Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights. With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.
Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera. The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5. For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.
West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:
(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(3) Exceed the speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement of [or] turning in specified directions.
(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.
(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.
In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic. Specifically, the Peak Court reasoned:
Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.
Peak, 185 W.Va. at 558, 408 S.E.2d at 310.
There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect. This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds). But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990). But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).
In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.
Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers
“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”
The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless. Regarding Sergeant Miller’s affidavit, the Court noted that:
The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.
Sergent, at S.E. Page 320-21.
- John H. Bryan, West Virginia Attorney
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
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.
Bus Driver’s Pretrial Hearing Continued
From the Beckley Register-Herald:
Bus driver’s pre-trial hearing continued
Christian Giggenbach
Register-Herald Reporter
A pre-trial hearing in the case of a Monroe County school bus driver charged with DUI has been continued until March 10 because his court-appointed lawyer asked to be dismissed from the case, officials said Tuesday.
Clyde Watson Jr., 62, of Union, was scheduled to appear Tuesday before Monroe Magistrate Nancy Crews, but his court-appointed lawyer, Jeff Rodgers of Lewisburg, filed a motion to recuse himself, according to court documents.
The reason for the recusal request was not given in the document, and Rodgers was not available for immediate comment Tuesday.
Watson, a 14-year veteran bus driver, was charged with DUI while transporting minors after he crashed his bus into a ravine with 11 children on board Feb. 4. A preliminary breath test indicated Watson had a small amount of alcohol in his system, .022.
About a week later, Watson apologized to the community and board members in a letter given to schools Superintendent Lyn Guy in which he admitted to an ongoing alcohol problem and being impaired the day of the bus crash. The school board held an emergency meeting the following Monday and announced in a brief news release that Watson had resigned.
However, after obtaining both of Watson’s letters through a Freedom of Information Act request, The Register-Herald learned Watson did not resign his position, but rather the letter stated he was “retiring effective immediately.”
When asked about the discrepancy Tuesday, Guy said Watson could not make up his mind on whether to resign his position or retire and he chose to retire after learning he risked some benefits if he quit his job.
“He told me he was going to lose some of his benefits if he was fired, so I wrote the news release as a resignation,” Guy said by phone Tuesday. “We had already set up a termination letter and had a termination hearing scheduled. I don’t know if it makes too much difference. My goal was to make sure that he never drove another bus again.”
If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.
— E-mail:
cgiggenbach@register-herald.com
Proposed WV DUI Bill Detoured to Committee
From the Beckley Register-Herald:
DUI bill taking minor detour to Finance Committee subpanel for study
By Mannix Porterfield
Register-Herald Reporter
CHARLESTON — A year-long effort to encourage the use of Interlocks to test the sobriety of drivers and punish more harshly those with a blood alcohol content of .15 or higher ran into a temporary detour Thursday.
Mindful of the complex nature of the bill, Senate Finance Chairman Walt Helmick, D-Pocahontas, decided to dish it off to a three-member subpanel.
Donna Hawkins, state president of Mothers Against Drunk Driving, the prime mover of the bill that consumed a year of interims study and work by an ad hoc panel she directed, was visibly disappointed by the delay.
But Sen. Dan Foster, D-Kanawha, who keyed the push for the bill in the Legislature, didn’t mind that a panel composed of Majority Leader Truman Chafin, D-Mingo, Education Chairman Robert Plymale, D-Wayne, and Sen. Vic Sprouse, R-Kanawha, would study it further.
“I don’t object to that,” Foster said afterward. “They want to look at the financial aspects.
“It’s a complicated bill. I think the tenor of comments we heard from the other members of the committee indicated they will move on it.”
The idea is cut from 30 days to 15 the length of a license suspension of first-time offenders who voluntarily install the Interlock, a device that measures BAC and won’t let one start if it’s too high.
“We’re going to run the bill,” Chafin promised. “We want to understand the bill more clearly. Obviously, it’s a big issue in West Virginia. We’ve got jails full, and prisons.”
In the so-called “aggravated DUI” category of .15 or above, motorists would spend a mandatory jail term of two days to six months and be fined from $200 to $1,000. A license could be revoked for up to 270 days.
Another aspect that makes it attractive to counties struggling to pay regional jail costs wipes out the mandatory 24-hour lockup for first-time offenders.
“What actually happens now, individuals are brought into a holding cell to see a magistrate, and that could be two hours or 10 to 12 hours,” Foster told the panel.
“Then they will see a magistrate who can decide whether they stay 24 hours or not, or is free to leave. Before, they had to go back and finish up the 24 hours.”
And that, he emphasized, amounts to double booking for the same offense, meaning a county has to shell out twice for the same individual.
Hawkins told the panel she has no problem with eliminating the 24-hour mandatory sentence in existing law.
“We think this is an excellent bill,” the Charleston resident said. “We fully support this piece of legislation. We think it will save lives.”
In 2006, the last year figures were available, drunken drivers were blamed in 129 deaths and some 2,500 non-fatal injuries.
“What we have found with MADD is that jail time alone is not the deterrent,” she said.
“We believe the Interlock provision in this bill will help save lives. And it gets the offender back on the road faster. It allows them to provide for families. And it will also save on regional jail costs, which we know is a big concern.”
He was Drinking: Monroe County Bus Driver, Admits Drinking Problem
Note: It appalls me that I received criticism for being “mean” when this man receives nothing but excuses for his behavior. The facts are these: He drank, he drove a school bus filled with children, he drove the school bus off a 120 foot cliff, he lied and said he drank Nyquil, he lied and said he had a medical problem, then he finally admits the truth. Well, words are cheap. Trust me, many people facing criminal charges have the innate ability to sound extremely sorry and remorseful for what they have done. In the following news article, his written apology is quoted. However, it looks to me like one of those apologies that is not really an apology. In other words, “I’m sorry but it wasn’t me – it was the alcohol making my decisions for me.” He should take real responsibility for his actions and come to grips with the fact that he did make a “knowing” choice. He selfishly chose alcohol over the safety of the innocent children who he was entrusted to protect. Both he, the Board of Education and the State of West Virginia better pray that none of these children have been injured – John H. Bryan, Attorney at Law.
From today’s Register-Herald:
Bus driver resigns, admits drinking problem
By Christian Giggenbach
Register-Herald Reporter
Saying “I hit rock bottom,” a veteran Monroe County school bus driver arrested last week on a DUI charge has resigned after admitting to having “a problem with alcohol.”
Clyde Watson Jr., 62, of Union, tendered his resignation to Superintendent Lyn Guy Saturday, and Guy presented it to the school board during a special session Monday evening.
“Mr. Watson, who was involved in the bus accident on Feb. 5, 2008, and was charged with DUI, had written a letter of apology to the board president, the superintendent and the transportation director Feb. 7, two days after the accident,” Guy said Tuesday in a faxed news release.
In the letter, Watson admitted to having an ongoing alcohol problem, according to Guy.
“It has been through the constant support and encouragement of my closest friends, for the first time in years, I’m willing to admit to myself that I have a problem with alcohol,” Watson wrote. “As difficult as that was for me, it is even more difficult to admit to each of you.”
Guy could not be reached for further comment Tuesday. School officials said Guy will be absent for the rest of the week due to an out-of-state conference for superintendents.
Watson, a school bus driver for 14 years, crashed his 33-foot-long bus into a 120-foot ravine with 11 school children aboard Feb. 5. There were no injuries.
“I hit rock bottom Tuesday morning (Feb. 5). I can’t change the fact that I committed a great moral and ethical injustice, and risked the lives of many,” Watson said in his apology letter.
“What I can change is my life and the direction it was headed in before those kids got on my bus … It is with heavy heart that I can tell you that at no time would I have knowingly put my kids at risk. I did, however, let the influence of alcohol unfortunately impair my judgment.
Watson was charged with DUI with minors in a vehicle, according to a criminal complaint filed by State Police Sgt. J.L. Cooper.
At the scene, Watson had a preliminary breath test which indicated a small amount of alcohol was present in his blood, about .022.
Watson told police he had taken Nyquil, which contains alcohol, the night before the accident.
Cooper said Tuesday he will contact the Monroe prosecutor’s office concerning Watson’s alcohol admission and resignation to the school board.
“He has already given us a statement saying he did not drink during the day of the accident,” Cooper said Tuesday. “If Mr. Watson wishes to revise his statement, then I will be glad to speak to him.”
Monroe Prosecutor Rod Mohler could not be reached for comment Tuesday. State Police are awaiting the results of Watson’s blood tests from a hospital visit the day of the accident, Cooper said.
Although a driver is presumed intoxicated by the state when his or her blood alcohol content is .08, police can charge a driver with DUI at lower BAC levels if the consumption of alcohol has impaired his or her ability to drive.
If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.
School board member Bill Shiflet said a disciplinary hearing had originally been scheduled for Monday prior to Watson’s resignation.
A Register-Herald request for a full copy of Watson’s resignation and apology letter was denied by school officials.
School officials also said Watson had an unlisted phone number. It is uncertain if Watson has hired an attorney to represent him in the criminal case.
Shiflet said Watson’s letters did not specifically mention what type or how much alcohol he had consumed prior to taking the wheel of the bus.
When asked what liability Watson’s actions may have caused the county, Shiflet was unsure.
“It’s a very tragic event and we are very thankful that no one was injured,” Shiflet said by phone. “It certainly could have been a lot worse than it was.”
Your Author Confronted On Street Regarding Monroe County Bus Accident
Yet another update regarding the Monroe County School Bus DUI Case: a well-known local citizen approached me on the street this morning and criticized my comments regarding the driver of the now-infamous DUI School Bus as being too harsh.
I will reiterate what I told him in case there are others who feel my comments were too harsh. My initial reaction was perhaps too harsh given that subsequent mitigating information was released regarding a possible medical condition that may have caused the accident. Furthermore, I initially read the Register-Herald article as stating that he had a BAC of “.22″ when in fact it was “.022″ – which is obviously a big difference. For this reason, I subsequently redacted my initial comments and provided an update with the new information on this Blog.
The point is, that if I was mistaken about the facts, then I agree that my language was too harsh and I apologize. If the driver had not been drinking, then I was wrong in using such strong language. Although, anyone who has previously driven off a 120 cliff while driving a school bus filled with children – whether drunk or not – should not be given a second chance to drive children around on mountain roads. So, to a certain extent, it doesn’t matter whether he was intoxicated or not. The fact is that it happened, and it can’t be attributed to icy roads.
However – and this is a big however – if he had been drinking, then I stand by my comments 100%. I don’t care if the driver of the bus is Mother Theresa, I will side with the children 100% of the time. If that man got behind the wheel of that bus, putting the lives of 11 innocent children at risk, then he deserves nothing less than 11 years in prison (1 year for each child), plus lifetime revocation of his license. My opinion may be unpopular to the friends and family of the driver, but I base my opinion on principle, not public opinion.
After I told this to the aforesaid citizen who confronted me on the street, he replied that, “well he did do it – he already resigned, but you shouldn’t say things that are mean.” Let it be known from here forward, if you recklessly or negligently hurt innocent children in my community, then I will write “mean” things about you on this Blog. – John H. Bryan
See update here.
Another Update on Bus Driver DUI Arrest in Monroe County
From today’s Register-Herald:
Note: The latter half of this article contains a very informative recitation of what the DUI laws are in the State of West Virginia. West Virginia is one of the states that allow a conviction if the BAC result is .08 or greater (solely based on the BAC result). Other states, such as North Carolina focus more on whether or not the person was intoxicated, regardless of what the BAC reading was. However, these states do use the BAC reading (from the intoxilyzer machine, not the field preliminary breath tests) as evidence that the person was intoxicated. Guilt is shown mostly by the officer’s testimony regarding the defendant’s performance in the field sobriety tests, and regarding the quality of driving that took place immediately prior to the stop. Having formerly prosecuted DUI’s (DWI’s) in Raleigh North Carolina, I have witnessed defendant’s acquitted despite having BAC results of .12 and .13 – well above the legal limit of .08 – because the judge was convinced the person was not “impaired” despite the high BAC reading. – John H. Bryan, West Virginia criminal defense attorney.
See UPDATE here.
Bus accident, arrest throw the spotlight on DUI laws
By Christian Giggenbach
Register-Herald Reporter
A school bus accident in Monroe County last week and the subsequent arrest of the driver on a DUI charge has thrown a spotlight on the state’s drunken driving laws.
Almost everyone knows West Virginia’s legal limit for driving under the influence is a blood-alcohol content of .08.
But few understand exactly what .08 means legally and why a person can be charged and convicted for drunken driving with BAC levels that are much lower.
State Police charged Clyde Watson Jr., 62, of Union, with DUI while transporting minors after the bus he was driving crashed down a 120-foot ravine last Tuesday. Eleven children were on the bus, but no one was injured.
Police said Watson had a .022 level of alcohol, well below the .08 limit. Watson told police he had taken Nyquil, an over-the-counter cold medicine that contains alcohol, the night before, and Monroe Prosecutor Rod Mohler said later in the week “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 told police he felt “funny” just before the accident.
Monroe school officials said Watson previously had a spotless 14-year safety record.
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The Register-Herald asked Charleston defense attorney Carter Zerbe to explain the state’s DUI laws, which are some of the strictest in the country.
“In West Virginia, it doesn’t matter if you are intoxicated or not,” said Zerbe, who has been defending DUI clients for 20 years. “A person could have a BAC level of .08 and not be drunk, but if it’s at that level, or above, you are guilty of a crime regardless.”
Zerbe said the law is known as the “per se” law and a person can be convicted of DUI even if the person shows no outward signs of intoxication.
“Another misconception is that you have to have a scientific test in order to be convicted of DUI,” Zerbe said. “If a police officer testifies that a defendant had slurred speech, or if the person staggers while being videotaped, that can sometimes be sufficient evidence for a conviction, even when there were no blood tests or breath tests.”
Zerbe said police must first have a “reasonable suspicion” of drunken driving before pulling a car over.
Many times, a burned-out tail light or expired license plate gives an officer probable cause to stop someone, he said.
If the officer smells alcohol or observes symptoms of intoxication, the officer can request that the driver perform three field sobriety tests, which include a vision test and walking tests.
“If necessary, then the officer can administer a preliminary breath test, where a person blows into a tube,” Zerbe said.
That test is not admissible as evidence in a trial, but can give the officer probable cause to ask for a blood test or a secondary breath test, both of which can be used as evidence.
But what if your BAC level is below .08? Can you still be charged and convicted of drunken driving?
Yes, because it’s not the amount of alcohol in your system that matters, but rather how much that alcohol impairs your ability to drive, Zerbe said.
Remember, the .08 standard is used to “presume” someone is drunk; below .08, alcohol can still affect some people’s ability to drive, he said.
“You can be convicted if alcohol impairs your ability to drive,” Zerbe said, “even though your BAC is below .08.”
Update – Monroe County Bus Driver Had Possible Medical Condition
From today’s Beckley Register-Herald:
Bus driver’s medical condition probed
Christian Giggenbach
Register-Herald Reporter
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.
Monroe County School Bus Driver Careens Down Ravine, Charged With DUI
From today’s Beckley Register-Herald:
School bus driver faces DUI charge
Union man arrested after mishap involving 11 kids
Christian Giggenbach
Register-Herald Reporter
State Police arrested a Monroe County school bus driver Tuesday and charged him with DUI after his bus, carrying 11 students, careened down an 120-foot ravine before coming to rest upright over a small creek.
Monroe Schools Superintendent Lyn Guy told The Register-Herald no children were injured in the 7:20 a.m. accident and all were rescued by EMS responders who built a rope line along the steep embankment.
Clyde Watson Jr., 62, of Union, was charged with DUI with minors in a vehicle, according to a criminal complaint filed by Sgt. J.L. Cooper.
Watson, a 14-year school bus driver, was arrested at the scene prior to being transported to Greenbrier Valley Medical Center in Fairlea. He was later was released from custody after posting $1,000 bond in Monroe Magistrate Court.
The criminal complaint said Watson registered a preliminary blood-alcohol content of .022 at the accident scene.
“The defendant was not tested on the intoximeter due to the elapsed time of first contact with an officer,” Cooper said. “However, blood was collected at Greenbrier Valley Medical Center.”
Results of Watson’s blood tests were unknown Tuesday and Cooper could not be reached for comment.
“In his statement, the defendant advised that he had felt ‘funny’ just before the accident,” Cooper said. “He also advised that he had taken Nyquil last night.”
Although the legal limit for driving under the influence is .08, state laws allow police to charge drivers with DUI who have lower BAC levels. Monroe Prosecutor Rod Mohler could not be reached Tuesday for clarification concerning Watson’s arrest and whether there are special circumstances when minors are in the vehicle.
State CDL laws require licensed drivers to be under .04 BAC while driving, according to State Code.
Guy said Watson has been suspended from his job pending the resolution of the DUI charge. She noted he previously had a spotless record for 14 consecutive years as a bus driver. A phone number for Watson could not be found in several telephone directory listings.
If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.
Guy said seat belts are not required on school buses, but the heavily padded seats may have contributed to the children’s safety.
“None of the kids had a scratch on them,” Guy said. “The padding on the seats are heavy and kids complain about them at times because they are so tight to get into.”
The accident occurred on Highland Park Road, about two miles from U.S. 219, Guy said.
“Apparently, Mr. Watson over-corrected the steering after running off the right side of the road during his morning bus route,” she said. “The bus left the one-lane road, taking out a telephone/power pole, traveled over 120 feet down an embankment and then came to rest upright at the bottom of a ravine.”
Guy said no injuries were reported from the students, ranging in age from 5 to 16, or Watson. The first person at the scene of the accident, Guy said, was the father of two of the children on the bus. The parent was driving to work when he stopped after noticing the downed telephone pole.
“The parent went down into the ravine and got on the bus with the children and checked them out,” Guy, who was unable to identify the parent, said. “He checked out the kids and everyone seemed to be fine.”
Guy said the bus came to rest with its front wheels across a small creek. Prior to the rescue, Allegheny Power crews responded to the scene because of the downed, live power lines. The rescue could not take place until power was cut to the downed lines, Guy said.
Ronceverte Fire Chief Jody Campbell said more than 30 emergency responders aided in the children’s rescue and subsequent bus recovery. The Union and Ronceverte fire departments, Union Ambulance, Greenbrier County Ambulance, state and county police all aided in the rescue effort, he said.
“First we went in and cut a trail with power saws and we were able to get the children and they walked out of the bus under their own power,” Campbell said. “We constructed a hand rail with the ropes and individually escorted everyone up the rope line and the steep embankment.”
The children were then loaded onto an awaiting school bus and transported to Greenbrier Valley Medical Center, he said.
“Within an hour and a half, all victims from the bus were transported to the hospital,” Guy said.
Campbell said the bus was not recovered from the ravine until about 2 p.m., and that required the assistance of two large wreckers. The bus sustained heavy damage to its front end and a broken windshield, he said.
The bus was transported to the county’s bus lot, where it will stay until state inspectors review it, Guy said.
Note: See UPDATE here.
Beckley Driver Charged With DUI After Injuring Baby in Crash
From today’s Register-Herald:
Baby, mother injured after car crash; driver charged with DUI, police say
Amelia A. Pridemore
Register-Herald Reporter
A Daniels woman allegedly under the influence of an inhalant crashed a car through a yard and two fences, went over and up two embankments and struck a building, injuring another woman and a five-month-old girl, Beckley police said.
Angel L. Stoots, 25, of Danmont Vista, was charged with DUI with injury, DUI with child endangerment, driving without a license and having no insurance, Cpl. Will Reynolds said. She was being held Saturday at Southern Regional Jail on $5,000 bond.
Stoots was in the driver’s seat of a 1998 Chevrolet Monte Carlo parked behind the Pagoda Motel on Harper Road Friday evening, Reynolds said.
An adult female passenger was in the front seat and the passenger’s 5-month-old daughter was in a child safety seat in the back.
Stoots was reportedly inhaling an unidentified “intoxicating substance,” Reynolds said. She claimed she passed out while the car was in gear and stepped on the gas pedal.
The Monte Carlo went across North Pike Street and into a resident’s back yard in the 1000 block of West Neville Street, Reynolds said. The car then tore down two fences and went over a six-foot embankment. After going through a resident’s parking spot and through grass, the car went up a three-foot embankment and struck a brick building in the same block of West Neville.
The passenger and her daughter were taken to Raleigh General Hospital, Reynolds said. The baby had a knot on her head and the passenger complained of head and back pain. Stoots was not hurt.
The passenger told police she was not involved in Stoots’ activities and that she tried to get herself and her child out of the car, Reynolds said.
Note: As a West Virginia criminal defense attorney, I usually lament that people are overcharged and usually do not deserve the amount of prison time that comes with various charges. However, in situations like these, with a dirt-ball that would selfishly and recklessly hurt an innocent baby, I fear that the penalty will not be great enough. This woman should be locked up and the key thrown away. What is going to stop her from hurting another innocent child? At the very least her driving privileges should be revoked for the remainder of her pitiful life. – John H. Bryan, West Virginia criminal defense attorney.
John H. Bryan, Attorney at Law
Have law license, will travel.
John H. Bryan is a prominent West Virginia criminal defense lawyer who not only defends people in criminal courtrooms statewide, but also is one of the top civil rights attorneys in West Virginia, frequently suing police departments and the State for misconduct. He and his law firm also have a successful personal injury litigation practice and frequently handle high profile cases.
Email John: jhb@johnbryanlaw.com
“We may affirm absolutely that nothing great in the world has been accomplished without passion.” – Hegel.
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