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

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

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.


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