Paris Hilton made a surprise appearance Sunday afternoon at the MTV Movie Awards. Hours later she arrived at the Century Regional Detention Facility in Lynwood, California to begin a 45 day sentence.

The 26-year old heiress to the Hilton fortune turned herself in at the Central Jail in downtown Los Angeles around 10:30 pm. She was transferred to the all women’s Lynwood facility an hour later, where she was booked, fingerprinted and issued a jail-issued jumpsuit.

Sheriff’s spokesman Steve Whitmore said “(Hilton’s) demeanor was helpful. She was focused, she was cooperative.” Whitmore added that Hilton does not have a cellmate. Paris was assigned to a ‘special needs’ unit with two-person cells away from the general prison inmates. The unit is used for police officers, public officials, celebrities and other high-profile inmates.

Hilton will be confined to a 12-foot-by-8-foot cell. She will only be allowed to leave the cell for one hour a day to shower, engage in outdoor activities or use the telephone.

When sentenced, the judge denied her work release privileges. Hilton was given a 45 day jail sentence for violating probation stemming from an arrest for California DUI. After pleading no contest to the reckless-driving charge in that case, her driver’s license was suspended. She was stopped by police in January and informed that she was driving with a suspended license. Hilton was stopped again in February and charged with a probation violation.

With time off for good behavior, Hilton is expected to serve about three weeks of her jail sentence.

After a wild Memorial Day weekend, twenty year old actress and party girl Lindsay Lohan checked herself into Promises rehabilitation center in Malibu.

Lohan wrecked her Mercedes SL-65 on Sunset Boulevard around 5:30 am Saturday after an evening of partying. She was taken in another vehicle to nearby Century City Hospital with minor chest injuries. Police located her there and arrested her for suspected California DUI. Investigators later found what was described as a useable amount of cocaine in Lohan’s car. Less than 48 hours later she was photographed passed out in DJ Samantha Ronson’s car around 4:00 am after another evening on the town.

Lohan was driven to the Promises facility by her attorney, Blair Berk. A spokesperson for the actress cited the seriousness of the situation and said Lohan was seeking ‘intensive medical rehabilitation’.

Lohan previously entered rehab after collapsing at a post Golden Globes party last January. She has been involved in a number of alcohol related incidents and was chastised by the director of her most recent movie ‘Georgia Rule’ for excess partying that lead to delays in filming.

Jerry Buss, owner of the Los Angeles Lakers basketball team, was arrested for suspicion of California DUI early Tuesday morning. Buss, 74, was stopped by the California Highway Patrol in Carlsbad for driving his gold 2005 Mercedes E320 on the wrong side of the road.

Buss reportedly failed a field sobriety test and was “relatively cooperative” when placed under arrest. He was booked at the Vista jail where a blood test showed a blood alcohol content above the legal limit.

In a released statement Buss said, “Although I was driving only a short distance, it was a bad decision and I was wrong to do it. It was a mistake I will not make again.”

A Lakers spokesman said Buss was in the Carlsbad, California vicinity because he has a second residence in north San Diego County.

Lindsay Lohan was arrested for California DUI after a Saturday morning accident on Sunset Boulevard in Los Angeles. The young actress and renowned party girl spent Friday night and the early hours of Saturday at several clubs and party houses before getting into her Mercedes SL65 convertible around 5:30 am and promptly crashing it into a curb and a hedge.

Lohan, 20, was at Les Deux nightclub until 3:00 am before heading to a private party house in the Hollywood Hills owned by Koi restaurateur Nick Hawk. Witnesses describe her as quite inebriated when she left for yet another stop at the Skybar at the Mondrian Hotel. She departed that bar around 4:45 am for her condominium. To this point she was being driven by her bodyguard Jaz.

There are reports that DJ Samantha Ronson, who recently has been rumored to be a lover of Lohan’s, walked out of Lindsay’s place around 5:15 am. Lohan, and an unidentified male, followed her in her Mercedes. The two women were witnessed screaming at each other by a paparazzi photographer, and Lohan called Ronson an ‘f-bomb lesbian bitch.’ Ronson then got into the car and Lohan sped off rapidly in her 600 horsepower car, only to veer sharply at an intersection seconds later, hit a curb and crash into a hedge.

Lohan’s bodyguard drove the damaged car back to the condo and Lohan was taken in another car to a nearby hospital for treatment of minor injuries. That is where police found her after a 911 call.

The Beverly Hills Sheriff’s Department has not commented on Lohan’s blood alcohol content. A ‘usable amount’ of cocaine was found in the wrecked car, though it is not clear whether it was carried by Lohan or her passengers.

The case will be presented to the District Attorney’s Office, and Lohan faces several felony charges and a misdemeanor charge of being a minor under the influence. She is due to be arraigned August 24.

digg_url =
‘http://digg.com/celebrity/Lindsay_Lohan_Wrecks_Mercedes_After_Lesbian_Charged_Fight_2’;

Cheyenne, WY – If a driver demonstrates impairment, police officers may use other factors to charge drivers with DUI. One in 30 cases involves people with a blood alcohol level less than Wyoming’s legal limit of .08%.

According to state law, other factors can be used in charging drivers with DUI. Their ability to walk in a straight line, the smell of alcohol in the car, or inability to perform basic functions assist an officer in judging a driver’s level of impairment.

Johnny Alegria, 35, of Colorado, was allegedly driving 106 mph when a Wyoming Highway Patrol Trooper pulled him over. His blood alcohol level of .06% was below the legal limit, but from the trooper’s report stated that he could not count backward and his breath smelled strongly of liquor.

Dennis Grant, a part-time prosecutor for Laramie County, explained that these cases are harder to convict than ones in which drivers blow .08% or more.

Other tests that officers use to reveal a driver’s sobriety are reciting the alphabet, completing a heel-to-toe turn, and speaking without slurring. Failure to successfully execute these simple tasks can result in conviction.

Officers must be certain of the proof, and properly consider all facets of the sobriety testing procedure. Officers must weigh in the different ways that people respond to alcohol. While blood alcohol level may be the same for two people, their behaviors may be completely different.

Wyoming Highway Patrol Trooper Duane Ellis explained, "I’ve seen 0.06, and quite frequently, those drivers are all over the road, yet an experienced drinker can walk, talk and drive pretty well even at twice the legal limit."

May 31, 2004

Related Links:

• Wyoming DUI Laws
• Wyoming DUI Attorneys
• Wyoming Auto Insurance

The following are penalties DUI Offenders have received in the Milwaukee
area:

Sheboygan Wisconsin – North of Milwaukee

Operating while intoxicated

The following people were fined, had their driver’s license suspended
or revoked, were ordered to undergo an alcohol and other drug assessment
and, in some cases, were sentenced to jail for operating a motor vehicle
while intoxicated:

second offense, five days jail, $888, 12-month license revocation.

third offense, 75 days jail, $3,479, 28-month license revocation.

third offense, 30 days jail, 24-month license revocation, $1,221.

second offense, five days jail, 12-month license revocation, $906.

first offense, $730, seven-month license revocation.

first offense, $175, six-month license revocation.

local jail, forfeiture, fine $957, license revoked, ignition
interlock, alcohol assessment.

local jail, forfeiture, fine $957, license revoked, alcohol
assessment.

license forfeiture, fine $730, license revoked, alcohol
assessment.

local jail, license forfeiture, fine $894, license revoked, alcohol
assessment.

local jail, license forfeiture, fine $1078, non-probation conditions,
license revoked, alcohol assessment.

probation sentence withheld, $3491, license revoked.

license forfeiture, fine $730, license revoked, alcohol
assessment.

license forfeiture, fine $730, license revoked.

local jail, license forfeiture, fine $3491, license revoked, ignition
interlock, alcohol assessment.

license forfeiture, fine $856, license revoked, alcohol
assessment.

local jail, forfeiture, fine $953, license revoked, ignition
interlock, alcohol assessment.

license forfeiture, fine $722, license revoked, alcohol
assessment.

local jail, license forfeiture, fine $3491, license revoked, ignition
interlock, alcohol assessment.

license forfeiture, fine $730, license revoked, alcohol
assessment.

state prison, $1825, extended supervision.

license forfeiture, fine $667, license revoked, alcohol
assessment.

local jail, license forfeiture, fine $1083, license revoked, alcohol
assessment.

Source:
Local newspapers in the Milwaukee area

Traffic Stop Violated Rights of Drunken Driver, Court
Rules
RYAN J. FOLEY Associated Press MADISON, Wisconsin

A police officer violated the constitutional rights of a repeated
drunken driver when he pulled him over for drifting in his lane, a state
appeals court ruled Thursday.

The ruling may spare 12 months in jail for Robert E. Post, 42, of
Poynette, who had pleaded no contest to a fifth offense of operating a
motor vehicle while intoxicated.

A Sauk Prairie police officer committed an unreasonable search and
seizure in violation of the Fourth Amendment when stopping Post in
February 2004, the District 4 Court of Appeals ruled.

Post’s blood alcohol content was recorded at .212, nearly three times
the legal limit, and he was charged with a fifth offense of operating a
motor vehicle while intoxicated.

Post, 42, should never have been pulled over even though he had
drifted “from the right part of his lane toward the left side of his lane
and back several times,” the court said. Post stayed in his lane and did
not speed, drive erratically or commit any other traffic violations, the
appeals court noted.

“Based on the officer’s testimony, we conclude that the police did not
have a reasonable suspicion that Post was violating the law that would
justify a traffic stop,” the court said. “Post’s slight deviations within
one lane of travel, with nothing more, does not, in our view, reach that
quantum of evidence necessary to make the officer’s hunch that Post might
be intoxicated reasonable under the Fourth Amendment.”

Post had pleaded no contest to the charge last year and was sentenced
to one year in jail. However, the sentence was stayed pending the outcome
of his appeal.

Post’s lawyer, T. Christopher Kelly, said the decision means the
police cannot use any evidence gathered during the traffic stop against
his client. He said he believed prosecutors would likely be forced to
drop the charges.

“All this decision says is you can’t pull somebody over for normal
driving. You’ve got to see bad driving,” he said. “I think it was an easy
call because we don’t want the police pulling people over without having
a good reason.”

Kevin Calkins, a Sauk County prosecutor who handled the case, did not
immediately return a phone message.

Source: http://www.duluthsuperior.com

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term No. 32859

DANIEL J. DAVID, Petitioner Below, Appellant

v.

COMMISSIONER OF THE WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Respondent Below, Appellee

Appeal from the Circuit Court of Kanawha County Hon. Tod J. Kaufman,
Judge

Case No. 05-MISC-51 REVERSED AND REMANDED WITH INSTRUCTIONS

Submitted: February 14, 2006 Filed: May 12, 2006

JUSTICE STARCHER delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring
opinion.

SYLLABUS BY THE COURT

1. “A driver’s license is a property interest and
such interest is entitled to protection under the Due Process Clause of
the West Virginia Constitution.†Syllabus Point 1, Abshire v.
Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995).

2. Where the West Virginia Department of Motor Vehicles has improperly
delayed a driver’s license revocation proceeding held pursuant to W.Va.
Code, 17C-5A-2 [2004] and thereby denied due process of law to a
licensee, a party who has incurred substantial expenses as a result of
the improper delay and denial may recover the party’s expenses so
incurred from the Department in order to place the party in the position
in which he or she would have been absent the improper delay and denial
by the Department. Starcher, J.:

In this case we hold that the West Virginia Department of Motor
Vehicles is responsible for the expert witness fees and attorney fees of
a licensee who was denied due process of law in connection with a
driver’s license revocation proceeding.

I. Facts & Background

The appellant, Daniel David, was charged on or about February 24,
2004, by Trooper C. L. Adkins of the West Virginia Department of Public
Safety with driving under the influence of alcohol. On March 4, 2004, the
appellee, the Commissioner of the West Virginia Department of Motor
Vehicles (“DMVâ€) issued an order revoking
the appellant’s driver’s license for six months, effective April 8, 2004.
The appellant timely appealed and requested a hearing on the license
revocation, and the revocation order was stayed pending the resolution of
the appeal. A hearing before a DMV hearing examiner was scheduled by the
DMV for October 4, 2004, at 12:30 p.m., at the DMV offices in Beckley,
West Virginia. The appellant’s counsel caused a subpoena to be issued by
the DMV on July 14, 2004, and to be served on Trooper Adkins on September
13, 2004, requiring Trooper Adkins to attend the October 4 hearing.

The DMV subpoena to Trooper Adkins was issued pursuant to W.Va. Code,
17A-2-18 [1951], which states:

(a) The commissioner and officers of the department designated by him
shall have authority to summon witnesses to give testimony under oath or
to give written deposition upon any matter under the jurisdiction of the
department. Such summons may require the production of relevant books,
papers, or records.

(b) Every such summons shall be served at least five days before the
return date, either by personal service made by any person over eighteen
years of age or by registered mail, but return acknowledgment is required
to prove such latter service. Failure to obey such a summons so served
shall constitute a misdemeanor. The fees for the attendance and travel of
witnesses shall be the same as for witnesses before the circuit
court.

(c) Any circuit court shall have jurisdiction, upon application by the
commissioner, to enforce all lawful orders of the commissioner under this
section.

The appellant, at substantial expense, retained an expert from the
State of Virginia on the subject of field sobriety tests and breath
testing. The expert traveled from Virginia to appear at the October 4,
2004 DMV hearing. The appellant, his counsel and witnesses, and the
expert appeared at the DMV office in Beckley at 12:30 p.m. on October 4,
2004. Trooper Adkins did not appear at that time. Trooper Adkins
apparently phoned the hearing examiner twice and telephonically obtained
“continuances†lasting until 3:00 p.m., on
the grounds that Trooper Adkins was in the Fayette County Magistrate
Court in Fayetteville, West Virginia _ about a half-hour drive from the
Beckley location of the DMV hearing. The appellant and his counsel
waited, assuming the hearing would begin at 3:00 p.m.; however, Trooper
Adkins did not appear at the DMV hearing at 3:00 p.m. and the appellant
and his counsel left at that time.

W.Va. Code, 17C-5A-2(b) [2004] addresses the issue of continuances of
DMV hearings, and states in pertinent part:

The commissioner may postpone or continue any hearing on the
commissioner’s own motion or upon application for each person for good
cause shown. The commissioner shall adopt and implement by a procedural
rule written policies governing the postponement or continuance of any
such hearing on the commissioner’s own motion or for the benefit of any
law- enforcement officer or any person requesting the hearing, and such
policies shall be enforced and applied to all parties equally. For the
purpose of conducting the hearing, the commissioner shall have the power
and authority to issue subpoenas and subpoenas duces tecum in accordance
with the provisions of section one, article five, chapter twenty-nine-a
of this code: Provided, That the notice of hearing to the appropriate
law- enforcement officers by registered or certified mail, return receipt
requested, shall constitute a subpoena to appear at the hearing without
the necessity of payment of fees by the division of motor vehicles.

On or about October 7, 2004, the appellant’s counsel received a copy
of a written “continuance request,†signed
by a Fayette County assistant prosecuting attorney and apparently filed
with the DMV, stating that Trooper Adkins had been in the Fayette County
Magistrate Court and could not attend a 3:00 p.m. October 4, 2004 hearing
in the appellant’s DMV case. The Fayette County assistant prosecutor’s
“continuance request†was accompanied by a
certificate of service indicating that the request was mailed to the
appellant’s counsel on October 5, 2004. (See footnote 1)

Records from the Fayette County Magistrate Court reflect that Trooper
Adkins had been informed _ by seventeen separate
“Notice[s] to Appear,†all dated July 29,
2004 that Trooper Adkins’ presence was required in the Fayette County
Magistrate Court, on October 4, 2004, for a series of traffic and
misdemeanor cases that were scheduled to begin at 10:00 a.m., 10:30 a.m.,
11:00 a.m., and 11:30 a.m; there were no notices for hearings beginning
later than 11:30 a.m. No subpoenas had been issued by the magistrate
court to Trooper Adkins requiring his attendance at these hearings. (See
footnote 2)

There is nothing in the record to suggest that Trooper Adkins sought
to have the magistrate court cases continued, or that he informed the
prosecutor’s office or magistrate court that he had been subpoenaed to
the appellant’s DMV hearing. Nor does the record reflect any attempt by
Trooper Adkins to continue the DMV hearing other than the phone calls on
the day of the hearing and the apparently “post
hoc†letters referenced above.

Subsequently, the DMV responded to the written continuance requests by
issuing a letter ruling granting a continuance of the October 4, 2004
hearing and rescheduling it for March 9, 2005, on the ground that
“[d]ue to an unexpected delay in Magistrate Court, the
Arresting Officer was unable to appear for the scheduled administrative
hearing.â€

On February 4, 2005, the appellant filed a petition for writ of
prohibition and mandamus in the Circuit Court of Kanawha County, asking
that the DMV be barred from further proceedings on the appellant’s
license suspension due to the agency’s clear error in continuing the
October 4, 2004 hearing. This petition was summarily denied by the
circuit court on February 10, 2005. The appellant has appealed that
denial to this Court.

The appellant states _ without contradiction by the appellee _ that he
has expended all of the money that he can raise to hire an expert to
testify in his case, and that he will be severely and unfairly prejudiced
by his revocation case going forward without the services of the expert
whom the appellant hired to come to the October 4, 2004 DMV hearing. The
appellant argues that as a matter of law the appellee DMV’s continuance
of the hearing was improper, and that the license suspension proceedings
against the appellant should be dismissed.

II. Standard of Review

A writ of prohibition “lies as a matter of right
whenever the inferior court (a) has not jurisdiction or (b) has
jurisdiction but exceeds its legitimate powers and it matters not if the
aggrieved party has some other remedy adequate or
inadequate.†State ex rel. Valley Distributors, Inc. v.
Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969). In the instant
case, the circuit court’s denial and dismissal of the appellant’s
petition for a writ of prohibition was summary. The circuit court stated
no reasons for its ruling and made no findings; it appears that the
denial and dismissal order may have been entered without the filing of a
response by the appellee. Under these circumstances, without any findings
or discretionary determinations by the lower court to which we might give
deference, our review is de novo. See Syllabus Point 2, Walker v. West
Virginia Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

III. Discussion

The standard and procedures for granting continuances of DMV
administrative hearings, authorized by W.Va. Code, 17C-5A-2 [2004]
(quoted supra), are set forth at W. Va. C.S.R. Sec. 91-1-3. Rules 3.8.1
and 3.8.2 state:

3.8.1. The Commissioner may grant the person requesting a hearing a
continuance of the scheduled hearing. The person shall make the request
for continuance in writing, and it must be received by the Commissioner
at least five (5) days prior to the scheduled hearing date. The
Commissioner shall grant the request if good cause is shown. Good cause
shall include such reasons as serious illness, medical appointments,
court appearances, or religious holidays. In no case may the Commissioner
grant more than one continuance per party except as provided in
Subdivisions 3.8.3 and 3.8.4.

3.8.2. In DUI hearings, the Commissioner may also grant a continuance
to the arresting officer as prescribed in Subdivision 3.8.4.

Rule 3.8.1 rule specifically authorizes the issuance of continuances
for “court appearances;†and, if timely
invoked, would have applied to Trooper Adkins’ situation. To obtain a
continuance under Rule 3.8.1, at least five days before the DMV hearing
Trooper Adkins could (and should) have applied in writing for a
continuance based on the seventeen notices to appear in the Fayette
County Magistrate Court which advised him to appear at hearings in
Magistrate Court. Trooper Adkins had notice of these magistrate court
hearings for approximately two months before the October 4, 2004 DMV
hearing. The appellee does not offer any explanation for Trooper Adkins’
failure to utilize Rule 3.8.1 to seek a continuance of the DMV hearing.
(See footnote 3)

In addition to Rules 3.8.1 and 3.8.2, Rule 3.8.4 provides for
“emergency continuances†of DMV hearings
in limited circumstances, as follows:

The Commissioner may grant an emergency continuance on less than five
days notice to the person requesting the hearing and also the arresting
officer in a DUI hearing for unexpected personal emergencies of the
person, attorney, arresting officer, or subpoenaed witnesses. An
emergency situation requiring the services of an arresting officer en
route to a hearing qualifies as an unexpected personal emergency. Any
emergency continuance request may be made by telephone but also must be
submitted in writing. The written request must be received by the
Division no later than five (5) days after the date the hearing was
scheduled or the provisions of Subsection 3.7 will be applied as if the
party requesting the continuance failed to appear.

It is this “emergency continuanceâ€
procedure that the appellee relied upon in continuing the appellant’s DMV
hearing. However, a straightforward reading and application of Rule 3.8.4
demonstrates that the appellee had no grounds under Rule 3.8.4 to grant a
continuance.

Trooper Adkins did not have an “unexpected personal
emergency.†Trooper Adkins’ magistrate court hearings were
fully expected. Trooper Adkins had received two months’ notice of the
hearings. Any experienced police officer would expect that a series of
hearings on seventeen cases, the last of which was scheduled to begin at
11:30 a.m., would not likely conclude in time for the officer to attend a
DMV hearing at a distant location that was to begin at 12:30 p.m.

Nor was the reason for the Trooper’s asserted
“emergency,†an
“emergency situation requiring the services of an
arresting officer en route to a hearing,†which is also
provided in Rule 3.8.4. Rather, the magistrate court hearings were
official scheduled business.

Trooper Adkins therefore did not demonstrate grounds for a continuance
pursuant to Rule 3.8.4; and the DMV should not have granted a continuance
of the October 4, 2004 hearing on that basis.

In Syllabus Point 1 of Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549
(1995), Justice Cleckley stated, “A driver’s license
is a property interest and such interest is entitled to protection under
the Due Process Clause of the West Virginia Constitution.â€
(See footnote 4)

This Court has addressed claims of prejudicial delay and the violation
of due process by the DMV in connection with driver’s license
proceedings. In State ex rel. Cline v. Maxwell, 189 W.Va. 362, 432 S.E.2d
32 (1993), a circuit court dismissed DMV license revocation proceedings
due to excessive delay by the DMV in holding revocation hearings. This
Court held that dismissal was too strong of a remedy, because the
licensees had not shown “how the delay prejudiced
their ability to defend themselves.†189 W.Va. at 368, 432
S.E.2d at 38. In Cline, we granted a moulded writ of prohibition
requiring the DMV to temporarily return regular driver’s licenses to
drivers if hearings were reasonably delayed _ “to
shift the burden of the delay back to the Department.â€
(Emphasis added.) 189 W.Va. at 367, 432 S. E. 2d at 37. (See footnote
5)

In the instant case the DMV argues that dismissal of the driver’s
license suspension proceedings against the appellant is an excessive
sanction. The DMV suggests that the appellant can simply come to another
hearing with his expert and other witnesses. The appellant, however,
alleges _ and this allegation is uncontradicted _ that he cannot afford
to pay his expert to come to another hearing; nor, he further argues,
should he have to incur this burden twice, inasmuch as it was the DMV’s
improper action in granting the continuance that led to a denial of the
appellant’s due process rights.

In an analogous situation, this Court has recognized that a proper
remedy for a party’s failure to appear at a deposition was an order
requiring the culpable party to pay for an expert witness’ fees and
travel costs to attend the deposition, and related attorney fees.
Cattrell Companies, Inc. v. Carlton, Inc., 217 W.Va.1, 15, 614 S.E.2d 1,
15 (2005).

This Court stated in Rosier v. Garron, Inc., 156 W.Va. 861, 875, 199
S.E.2d 50, 58 (1973) that “to the extent possible,
under modern concepts of jurisprudence, legal contests should be devoid
of those sporting characteristics which gave law the quality of a game of
forfeits or trial by ambush.†See also Hinchman v. Gillette,
217 W.Va. 378, 385, 618 S.E.2d 387, 394 (2005). In other words, the law
favors the resolution of cases on their merits. Dismissal of the license
suspension proceedings against the appellant, under the facts of the
instant case, would run counter to this principle.

Because we have not hesitated to apply the principle favoring the
resolution of matters on their merits for the benefit of the appellee
DMV, this principle must also be applied for the benefit of the appellant
licensee. Especially because the important property interest of a
driver’s license is at stake, the DMV must conduct license suspension
hearings in a fashion that assures the due process right of licensees to
a tribunal where both sides are able to fully and fairly present their
evidence before a neutral hearing examiner who does not act to favor or
advance the cause of either side. See Abshire v. Cline, supra.

In the instant case, “resolution on the
merits†means resolution of the appellant’s appeal after a
hearing in which the evidence and expert testimony that the appellant was
prepared to present on October 4, 2004, when the hearing was improperly
continued, may be presented by the appellant and his counsel. The DMV may
not be permitted to have the unfair advantage of its erroneous ruling on
the appellant’s request for a continuance at a license suspension
hearing.

Based on the foregoing reasoning, we hold that where the West Virginia
Department of Motor Vehicles has improperly delayed a driver’s license
revocation proceeding held pursuant to W.Va. Code, 17C-5A-2 [2004] and
thereby denied due process of law to a licensee, a licensee who has
incurred substantial expenses and fees as a result of the improper delay
and denial may recover the party’s expenses and fees so incurred from the
DMV in order to place the licensee in the position in which he or she
would have been absent the improper granting of a continuance by the
Department.

Applying this principle, we conclude that the circuit court’s denial
of the requested writ of prohibition in the instant case must be
reversed; because absent such payment of the appellant’s expenses and
fees, the DMV would be acting in excess of its jurisdiction in conducting
a hearing that violates the appellant’s due process right to a full and
fair hearing on the merits of his case.

IV. Conclusion

We reverse the ruling of the Circuit Court of Kanawha County, and
remand this case with instructions to grant a writ of prohibition
requiring the DMV to pay the expert witness fees, attorney fees, and
travel costs incurred by the appellant as a result of the DMV’s
continuance of the October 4, 2004 administrative hearing, including the
appellant’s attorney fees incurred as a result of the instant proceeding
in prohibition and appeal. (See footnote 6)

Reversed and Remanded with Instructions.

Footnote: 1

Subsequently, the appellant’s counsel also obtained from the appellee
DMV a copy of a letter dated October 4, 2004, that was sent to the DMV
from a Fayette County magistrate, stating that Trooper Adkins had several
hearings “scheduled†on October 4, 2004,
and that it would be impossible for him to be available for the
appellant’s DMV hearing.

Footnote: 2 Magistrate Court Rules of Criminal Procedure Rule 15
provides for the issuance of subpoenas by the magistrate court pursuant
to the procedures in Rule 17 of the Rules of Criminal Procedure for
Circuit Courts. A notice to appear from the magistrate court, of the type
received by Trooper Adkins, is not a subpoena. Trooper Adkins was under a
direct and specific subpoena to appear before the DMV hearing officer,
and was not under a similar direct and specific legal compulsion to
attend the magistrate court proceedings. In terms of Trooper Adkins’
legal obligations, the DMV subpoena (unless he was excused from it in a
proper fashion) “outweighed†his
obligation to appear in magistrate court.

Footnote: 3 The appellant’s brief asserts that Trooper Adkins was
aware that the appellant had retained an expert for the DMV hearing.

Footnote: 4 In Abshire, this Court held that it was a denial of due
process for the DMV to strictly apply a five-day rule to deny a
continuance to a licensee whose counsel had acted reasonably in
requesting the continuance.

Footnote: 5 Our decision in State ex rel. Cline, supra, was cited in
Hickey v. North Dakota Dept. of Health, 536 N.W.2d 370, 372 (N.D. 1995)
for the proposition that: “Generally, to warrant
dismissal of administrative proceedings for delay, a party must show not
only unreasonable or unconscionable delay by the government in
initiating, conducting or concluding the proceedings, but also that the
party’s ability to defend against the allegations was substantially
prejudiced by the delay.†See also Syllabus Point 1, In re
Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999) (“A law
enforcement officer’s failure to strictly comply with the DUI arrest
reporting time requirements of W. Va. Code, 17C-5A-1(b) [1994] is not a
bar or impediment to the commissioner of the Division of Motor Vehicles
taking administrative action based on the arrest report, unless there is
actual prejudice to the driver as a result of such
failure.â€).

Footnote: 6 Any dispute regarding the amount of fees and expenses
should be resolved in the first instance by the Circuit Court of Kanawha
County. The DMV, of course, has the option of dismissing the license
revocation proceedings instead of payment of the appellant’s fees and
expenses.

Source: http://www.state.wv.us/

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/