ARRAIGNMENT/BOND

Transcription

1 SEMINAR MATERIALS IMPORTANT STEPS IN A DUI CASE 1. Arraignment/Bond 2. Charges Filed at West Virginia Division of Motor Vehicles (DMV) 3. Hearing Date 4. Plea Offers 5. Suppression Hearing 6. Trial 1. ARRAIGNMENT/BOND Once your client has been charged, he will likely be placed on bond. From the time of the arrest, the defendant has 20 days in which to inform the court of his request for a jury trial. Failure to preserve the defendant s request for a jury trial will likely be considered a waiver of his right to a jury trial. Also, the accused has only 30 days in which to inform the court of his desire to request entry into the Deferral Program set forth in W.Va. Code 17C-5-2b (2010). 2. CHARGES FILED AT THE DMV According to W.Va. Code 17C-5-7 the arresting officer is required to file a Statement of Arresting Officer with the West Virginia DMV within 48 hours of his arrest. The West Virginia Supreme Court has determined that the 48 hour requirement is not to be strictly enforced. Typically, you can expect the West Virginia DMV to mail a certified order of revocation to the address listed on the defendant s license within one month of his arrest. The driver will then have 30 days in which to request a hearing or request to participate in the Interlock Program. 3. HEARING DATE Most magistrates will conduct a pretrial hearing to allow the parties an opportunity to resolve the matter without going to trial. Typically, discovery is disclosed on or before this hearing. Expect to be provided the DUI Information Sheet, the criminal complaint and an arrest report. Be advised that additional discovery may be available that was not originally provided. This includes video evidence, 911 tapes, breath test discovery under Overington, certifications for preliminary and secondary breath testing, blood test results/hospital records, field sobriety test certification ect. Depending on the issues in your case, you may need to file additional discovery motions and request a court order to secure exculpatory evidence. 4. PLEA OFFERS Plea offers can vary significantly depending on the jurisdiction and underlying facts in the case. Some prosecutors will offer the minimum fine and punishment in exchange for a plea to the underlying DUI charge. Be advised that a plea of no contest will have no impact at the

2 DMV. However, a plea of guilty to a DUI offense will result in the immediately loss of driving privileges. Be advised that the West Virginia Supreme Court has strongly disfavored deals which include the agreement of an officer not to pursue an administrative action before the DMV in exchange for a plea in court. Stump v. Johnson, 619 S.E.2d 246 (2005) Other plea offers include reckless driving or some other moving violation. Be advised that despite your plea agreement, the DMV will most likely proceed with an administrative revocation of the individual s license pursuant to W.Va. Code 17C-5A-2. Many defendants mistakenly believe that the disposition of the magistrate proceeding is dispositive of the administrative action. The status and validity of a West Virginia driver can be checked by going to Recently, the Legistlature adopted the provisions set forth in W.Va. Code 17C-5-2b, also known as the Deferral Program. The Deferral statute is listed below: 17C-5-2b. Deferral of further proceedings for certain first offenses upon condition of participation in motor vehicle alcohol test and lock program; procedure on charge of violation of conditions. (a) Except as provided in subsection (g) of this section, whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to driving under the influence of alcohol, any controlled substance or any other drug: (1) Notifies the court within thirty days of his or her arrest of his or her intention to participate in a deferral pursuant to this section; and (2) Pleads guilty to or is found guilty of driving under the influence of alcohol under subsection (d), section two of this article, the court, without entering a judgment of guilt and with the consent of the accused, shall defer further proceedings and, notwithstanding any provisions of this code to the contrary, place him or her on probation, which conditions shall include, that he or she successfully completes the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a, article five-a of this chapter. Participation therein shall be for a period of at least one hundred and sixty-five days after he or she has served the fifteen days of license suspension imposed pursuant to section two, article five-a of this chapter. (b) A defendant's election to participate in deferral under this section shall constitute a waiver of his or her right to an administrative hearing as provided in section two, article five-a of this chapter. (c) (1) If the prosecuting attorney files a motion alleging that the defendant during the period of the Motor Vehicle Alcohol Test and Lock program has been removed therefrom by the Division of Motor Vehicles, or has failed to successfully complete the program before making a motion

3 for dismissal pursuant to subsection (d) of this section, the court may issue such process as is necessary to bring the defendant before the court. (2) A motion alleging such violation filed pursuant to subdivision (1) must be filed during the period of the Motor Vehicle Alcohol Test and Lock Program or, if filed thereafter, must be filed within a reasonable time after the alleged violation was committed. (3) When the defendant is brought before the court, the court shall afford the defendant an opportunity to be heard. If the court finds that the defendant has been rightfully removed from the Motor Vehicle Alcohol Test and Lock Program by the Division of Motor Vehicles, the court may order, when appropriate, that the deferral be terminated, and thereupon enter an adjudication of guilt and proceed as otherwise provided. (4) Should the defendant fail to complete or be removed from the Motor Vehicle Alcohol Test and Lock Program, the defendant waives the appropriate statute of limitations and the defendant's right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program. (d) When the defendant shall have completed satisfactorily the Motor Vehicle Alcohol Test and Lock Program and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the Division of Motor Vehicles that the defendant has successfully completed the Motor Vehicle Alcohol Test and Lock Program. A copy of the motion shall be served on the prosecuting attorney who shall within thirty days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant's attorney. If there are no objections filed within the thirty-day period, the court shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the court shall proceed as set forth in subsection (c) of this section. (e) Except as provided herein, unless a defendant adjudicated pursuant to this subsection be convicted of a subsequent violation of this article, discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime except for those provided in article five-a of this chapter. Except as provided in subsection (k), (l) and (m), section two of this article regarding subsequent offenses, the effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial. No person as to whom a dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial in response to any inquiry made of him or her for any purpose other than any inquiry made in connection with any subsequent offense as that term is defined in subsection (m), section two of this article. (f) There may be only one discharge and dismissal under this section with respect to any person. (g) No person shall be eligible for dismissal and discharge under this section: (1) in any prosecution in which any violation of any other provision of this article has been charged;(2)if

4 the person holds a commercial driver's license or operates commercial motor vehicle(s), or (3)the person has previously had his or her driver's license revoked under section two-a of this article or under any statute of the United States or of any state relating to driving under the influence alcohol, any controlled substance or any other drug. (h) (1) After a period of not less than one year which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this section, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial, and conviction, pursuant to this section except for those maintained by the Division of Motor Vehicles: Provided, That any person who has previously been convicted of a felony may not make a motion for expungement pursuant to this section. (2) If the prosecuting attorney objects to the expungement, the objections shall be filed with the court within thirty days after service of a motion for expungement and copies of the objections shall be served on the defendant or the defendant's attorney. (3) If the objections are filed, the court shall hold a hearing on the objections, affording all parties an opportunity to be heard. If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior to his or her application to the court under this subsection has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement. (i) Notwithstanding any provision of this code to the contrary, any person prosecuted for a violation of subsection(d), section two, article five of this chapter whose case is disposed of pursuant to the provisions of this section shall be liable for any court costs assessable against a person convicted of a violation of subsection (j), section two, article five of this chapter. Payment of such costs may be made a condition of probation. The costs assessed pursuant to this subsection, whether as a term of probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty, section four, article two-a, chapter fourteen, section four, article twenty-nine, chapter thirty and sections two, seven and ten, article five, chapter sixty-two of this code. When considering whether you client is eligible for the Deferral Program, keep mind that drivers who have previously had their license revoked or had a commercial driver s license (CDL) do not qualify. Currently, drivers charged with aggravated DUI with a blood alcohol level above.15 g/210l will qualify if the State agrees to reduce the charge to non-aggravated DUI as set forth in the statute. According to W.Va. Code 17C-5-2b, and driver who pleads guilty to or is found guilty of driving under the influence of alcohol under subsection (d), section two of this article is eligible. The DMV, however, will likely provide the Magistrate a letter indicating that the defendant does not qualify for the Deferral Program if the driver refused the secondary test or provided a BAC above.15 g/210l. However, the essence of this letter is that the DMV will not reduce the revocation time for the driver, regardless of the reduction of charge by the prosecutor.

5 This cryptic letter will often be construed as the DMV denying entry into the Deferral Program. However, the DMV lacks any legislative authority to reject an application for the Deferral Program. Instead, the DMV can only refuse to allow a motorist enrolled in the Deferral Program that has a prior revocation or CDL to participate in the Interlock Program. In cannot deny entry into the Deferral Program for reasons such as refusal or high BAC. Otherwise, only a magistrate can lawfully determine whether a motorist is eligible for the Deferral Program according to W.Va. Code 17C-5-2b. Lastly, be advised that individuals charged with DUI with controlled substances only are not eligible for Interlock or the Deferral Program. 5. SUPPRESSION HEARINGS According to Rule 103 of the West Virginia Rules of Evidence, [i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. Where practicable, these matters should be determined upon a pretrial motion in limine. Thus, in cases being tried before a jury, it is advisable to challenge the admissibility of breath test evidence, blood test evidence, field sobriety test results and Fourth Amendment issues outside of the jury. Oftentimes, the State will be unable to lay a proper foundation for the evidence, thus precluding its mention to the jury. As the old adage goes, it is difficult to unring the bell. Once the jury hears the BAC in a case, it will do little good to get the breath test later suppressed once the jury had been tainted by hearing its result. In DUI cases, it is advisable to review the applicable Legislative Rules dealing with the admissibility of evidence. The following resources are a good starting point to begin your attack: State v. Hood, 155 W.Va. 337 (1971). In order for implied consent to apply, the breath test must be administered 1) incident to a lawful arrest, 2) by a law-enforcement officer as defined by the statute; and 3) at the direction of the arresting law-enforcement officer having reasonable grounds to believe the offense was committed. State v. Stuart, 452 S.E.2d 886 (WV 1994) Investigatory stops are not permissible unless there is an articulable and reasonable suspicion that a motorist is, or has been violating the law. Muscatell v. Cline, 474 S.E.2d 518 (1996): Officer must show some objective justification for making a stop. When evaluating whether or not particular facts establish reasonable suspicion, one must examine the totality of the circumstances, which includes both the quantity and quality of information known by the police. Reed v. Hall, No (May 22, 2015) Although the circumstances in Burks were similar to the present case, the statutory right of the driver in Burks to demand and receive a blood test was satisfied. This Court's holding in Burks was simply that the police officer did not

6 have the obligation to obtain the results of the blood test. 206 W.Va. at 433, 525 S.E.2d at 314. In other words, those results of the completed blood test were available to the driver, and the failure of the driver to obtain those results was not attributable to police inaction. The present case, however, involves somewhat more culpable conduct by investigative personnel. The police actually retained dominion and control over the blood sample, in evidence locker number five of the South Charleston Police Department. Although they may have intended to cause that sample to be tested by the West Virginia State Police Laboratory, no such test was ever conducted. This Court consequently affirms the conclusion of the hearing examiner and circuit court that Mr. Hall was denied the statutory and due process rights, under West Virginia Code 17C 5 9, to have his blood tested independently. We therefore affirm the portion of the circuit court order that rescinds the DMV's six-month license revocation for DUI. Reed v. Pettit, No (May 13, 2015) The Court held that the law enforcement in charge of a checkpoint did not have to strictly follow the predetermined checkpoint guidelines. State v. Cozart, 177 W.Va. 400; 352 S.E.2d 152 (WV 1986) court held that refusal to submit to a secondary chemical test may be used as evidence of a guilty conscience in a DUI trial if the State is able to provide a proper foundation. This case mandates that the judge MUST conduct a hearing on the issue. Federoff v. Rutledge, 332 S.E.2d 855, f.n. 1, at 559 (W.Va. 1985). What one smells on the drinker s breath are the aromatic materials which give to each type of beverage the characteristic odor; one may recognize a beer, wine, gin, or other beverage odor, but not an alcohol breath. While alcohol rapidly disappears from the mouth after ingestion, the aromatic materials of the beverages linger and are detectable for a relatively long time. The breath odor after drinking is therefore unrelated to the alcohol content of the blood and is a poor indicator of the alcoholic state of the individual. White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012) This case deals with the administration of the horizontal gaze nystagmus test. An argument can be made to extend its logic to the other field sobriety tests. 6. TRIAL If your case has progressed into a jury trial, it is important to keep in mind the inherent attitude of your jury, which will vary depending on your jurisdiction. I have experienced success at trial by appealing to juror s common sense about alcohol and intoxication. A strong voir dire and cross examination is critical to dispel the misbelief that field sobriety tests are actually tests that provide reliable evidence of intoxication. Consider referring to them as exercises instead of tests and attack the validity of those exercises by using the officer s National Highway Traffic Safety Manual against him. Better yet, secure the testimony of an expert witness when possible. If you choose to move forward with a bench trial, it is important to know the background of your Magistrate. My experience in West Virginia is that most judges take great pride in maintaining their impartiality and will do their best to remain unbiased. That being said, we all

7 come from different walks of life and that includes magistrates. If found guilty, the Magistrate can sentence an individual beyond the minimums set forth in W.Va. Code 17C-5-2. Also, it is important to remember that if your client is found guilty, he has an automatic right to appeal to circuit court for a bench trial de novo.