Defending the Supreme Court on DUI

Defending the Supreme Court on DUI
By Carter Zerbe July 11, 2006

THERE is certainly nothing wrong with the Daily Mail's crusade against drunk driving. No reasonable person, including this writer, supports drunk driving.

However, the paper's attack on the West Virginia Supreme Court of Appeals in connection with the case of David v. Commissioner of the West Virginia Division of Motor Vehicles is off base.

The Daily Mail castigates the court for requiring the DMV to pay Daniel David's attorney fees and costs when the arresting officer, who was under subpoena, failed to show up for David's license revocation hearing because he was tied up in magistrate court.

The paper claims that in this case, "the law functions to harass and frustrate law enforcement and shield those who break the law."

On the contrary, the officer's refusal to obey a subpoena shows a disdain for the law.

The paper has turned the issue on its head. Even though the officer had over two months' notice that he had hearings in magistrate court that would likely conflict with the license revocation hearing, he never sought to continue either the magistrate court or DMV hearing, he never sought to quash the subpoena, and he apparently never informed the magistrate or anyone else that he had been subpoenaed to the DMV hearing.

In other words, the officer thumbed his nose at his duty to obey legal process, which under West Virginia law constitutes a misdemeanor.

David, on the other hand, did everything he was supposed to do.

He timely requested a hearing. To ensure the arresting officer's attendance, he subpoenaed him. Because the video of the field sobriety tests was exculpatory, David obtained an expert on field sobriety testing, a former police officer who trained other officers on how to administer and interpret field sobriety test results.

Moreover, contrary to the Daily Mail's assertion, the Supreme Court's decision did not shield David. The Supreme Court did not dismiss the revocation.

It merely held that David should be reimbursed for expenses associated with compelling the state to follow its own rules and regulations and having to attend a subsequent hearing on the revocation issue.

Indeed, in this writer's opinion, the appropriate remedy would have been to dismiss the case, as this is what the DMV does when an officer fails to appear.

In sum, what the paper seems to say is that people who are charged with drunk driving are not entitled to the protection of the Constitution. Or perhaps it is a reflection of the failure of the Daily Mail to understand that all criminal defendants, including those charged with DUI, are entitled to fundamental due process rights.

This writer doesn't know any court in the state, including the West Virginia Supreme Court of Appeals, that coddles drunk drivers. However, most courts, including our highest court, respect the Constitution.

I only wish the Daily Mail did.

Source: http://www.dailymail.com/